Taking Stock

Where are we with the Brexit negotiations and where would we like them to be going?

It’s hard to find any sort of consensus about the former, let alone the latter. Are we being led deliberately towards a Brexit in name only or are we about to see our side walk away from the negotiations and rely on so-called “WTO rules” to govern all our future international trade? Was Article 50 always a trap which was going to end up locking us into the EU?

Given the multiplicity of deeply-held views, this piece could end up being just one other person’s opinion. I hope not.  In summing up where we are now, I have read a fair number of different commentators and weighed their opinions before writing this summary.

Firstly, I think it is beyond dispute that the talks have not gone brilliantly from the UK’s point of view, but at least we can be thankful they did not grind to a halt last December as some had predicted.

David Davis and his team got off to a bad start by agreeing to the EU’s sequencing – in other words, “sufficient progress” had to be made on the Irish border issue, the rights of EU citizens resident in the UK and the “divorce settlement” before we could proceed to other issues. Under Article 50 of the Lisbon Treaty, there was no requirement for him to agree to this.

Next comes the transitional arrangement. This was our side’s idea and does not reflect well on our politicians and civil servants.  Not that long ago, we were hearing from some quarters that a trade deal between the EU and the UK would be “the easiest in human history” because of our regulatory conformity. It has since dawned on at least some politicians (although possibly not even all of them, even now)  that this isn’t the case.

The mistake is a very fundamental one because it reveals a profound ignorance of the purpose of the whole European project. We have always viewed the EU as a trading bloc – after all, that was what Edward Heath sought to emphasise in the early 1970s. He did occasionally talk about the sharing of sovereignty, but he didn’t exactly bend over backwards to  explain even to Parliament what we were joining. Of course, Heath knew the truth and now our team is having to learn the hard way. The EU is primarily a political project and trade issues are only a means to an end.

It is also a very rules-bound organisation. Belatedly, our team is discovering that “flexibility” is not a popular word in Brussels. Treaties with precise wording govern every aspect of the EU project. The EU’s chief negotiator, Michel Barnier, knows its workings inside out and unfortunately, comes across as far more on the ball than David Davis.

Is Barnier an ogre? Does he want to punish the UK? Is he merely a puppet whose strings are being pulled by Berlin? A delegation of pro-Brexit businessmen met him in Brussels recently. One of them, CIB Committee member John Mills, described him as “tough and charming“. Essentially, he wants these negotiations to succeed but not at the expense of the integrity of the EU’s single market.  The European project unquestionably took a knock when we voted to leave and he as much as any senior figure in the EU is committed to damage limitation and keeping the show on the road.  The EU has other crises on its hands and Brexit is an unwelcome distraction. After all, it was our decision to leave.  Given these factors, Barnier is merely sticking to the EU rulebook which he knows so well. There is no evidence of any personal animosity towards us our our politicians.  His biggest gripe is that we don’t seem to know what we want from Brexit.

This is essentially where our request for a transitional arrangement comes in. There have been pro-withdrawal groups, including the Campaign for an Independent Britain, even before we joined the European project in 1973. We have been good at arguing the case for independence and ultimately persuaded over 17 million voters of our point of view. We have been less good at explaining how we can leave seamlessly and this has been the root of the Government’s problems.

The Transitional deal, at least if it is negotiated according to the rules laid down by the European Parliament, will be very bad news for us.  It seems to be being pursued purely because the Government knows that a full trade deal will not be ready by March 2019; in other words, it buys us more time.  Theoretically, there is a “sunset clause” – it will only last 21 months, but what if the trade deal isn’t signed by the end of this period?

The significant and surprising support for this transitional deal seems to be based entirely on the assumption that this won’t be a worry. If there’s something good to look forward to, these 21 months of being essentially controlled by Brussels is a price worth paying. This is a fallacy, however, as this piece helpfully explains.

The dilemma we face is that while there is widespread agreement about where we actually want to be after Brexit, there is no agreement on how to get there.

Apart from diehard remoaners, most people would probably agree on all or most of the following:-

i) The ECJ must have no power whatsoever to interfere in the government or legal process in the UK – including those EU citizens currently resident here. We must remove ourselves from Europol and the European Arrest Warrant – in other words, we are back to being a normal sovereign independent country as far as criminal justice is concerned.

ii) Fisheries and agriculture must be 100% under domestic control (and fishing should not be managed on a quota system)

iii) We must be separate from the EU’s military machine, including in the areas of procurement.

iv) We should not make any contribution to the EU’s funds apart from covering our costs where we wish to participate in a specific scheme such as the Erasmus student exchange.

v) we must have complete control of our borders

vi) we must have complete freedom to set our own levels of taxation, benefits and tariffs.

Agreeing our long-term goal is the easy bit. The problem is that we may never get there unless the Government can define in terms which the EU can understand what we want in the immediate post-Brexit period. The transitional arrangements might at least keep industry happy inasmuch as no new guidelines need be given for life could continue for a further 21 months more or less as it does now, but this is only kicking the can down the road. If we find ourselves bogged down in a transition arrangement along the lines already discussed and this period is then extended to (and beyond) the next General Election, we may find ourselves stuck in a sort of limbo which would please no one and would leave many voters vulnerable to the remoaners’ propaganda and thus eventually crawling back into the EU. Alternatively, if we walk away from the negotiations altogether, the net result could be a sudden and severe recession. In this instance,  once again we could be faced with a clamour to re-join.

This would be a tragedy. The key to preventing this happening is to focus on the unacceptability of the current transitional proposals. While many leave voters are strongly opposed to any further membership of the European Economic Area, as a stopgap, it is much less awful, as Nigel Moore argues here. What is more, according to Profesor George Yarrow, unless we give notice that we are quitting the EEA before 29th March of this year, we will still be in it on Brexit day by default, as leaving he EEA is totally separate from leaving the EU.

Yarrow’s thesis has not been put to the test, but then, Brexit as a whole is breaking completely new ground. It is hardly surprising that the path has not been a smooth one. All the same, progress has not been satisfactory thus far and although on balance, I think that the Government’s poor performance has been borne out of an inability to master the issues as quickly as anticipated rather than out of a devious plan to stifle Brexit, Mr Davis and his team desperately need to up their game if we are to achieve a successful Brexit in just over a year’s time.

Mrs May’s EU Vassal State

How much humiliation are Mrs May and Mr Davis prepared take at the hands of our European Union (EU) overlords? When will the pain they are going through reach such a level that they finally grasp the reality of the EU’s superior machinations?  It is now so obvious that the United Kingdom is to be made the latest example of what happens when the power of the EU’s rigid, self-interested bureaucratic and political machine is defied; it cannot be bargained with or changed – just obeyed.  And worse, Mrs May through her mistakes and Mr Davis through his slothful ignorance, has not just allowed it to happen, but made the EU’s worst excesses unavoidable. The first (So-called transitional) phase of  Mrs May’s ‘deep and special relationship with our EU partners’ after 29th March 2019 amounts to being a vassal state to the EU Empire just as around 2000 years ago Judea under King Herod the Great was a vassal of the Roman Empire. They eventually took over completely. The EU is threatening to do the same. What has gone so disastrously wrong?

In January this year Mrs May in her Lancaster House speech ruled out continuing membership of the Single Market (and European Economic Area, EEA aka Internal Market). Continuing membership is possible through membership of EFTA (The European Free Trade Association).  All the UK has to do is join – or rather re-join – assuming the existing EFTA members would have us back, which seems far from improbable. This route offers the ability to limit immigration from the day we leave by unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  The EFTA route to EEA membership does give members outside the EU a say in EU legislation affecting the EEA, is largely free (although ‘voluntarily’ Norway does contribute to regional development funds) and is outside the jurisdiction of the European Court of Justice (ECJ). The EEA Acquis or body of law is about a quarter of the total EU Acquis since it only relates to successful functioning of the EEA. And EFTA members make their own trade agreements with other countries.  Membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland.  It is EEA membership that allows seamless trade since regulatory measures are the same for each side, whereas being a ‘third country’ outside the EEA brings a hard (often protectionist) border with the EU of controls, tariffs, inspections etc.

Mrs May rejected even temporary EFTA/EEA membership (for reasons that have never been stated) and now, in order to get a transitional agreement (to buy time to negotiate a free trade agreement), she is being faced with having to agree a far worse arrangement with the EU (see European Council (Art. 50) meeting (15th December 2017) – Guidelines). For two or more years (subject to EU agreement) we will continue to be subject to the full EU acquis, pay into the EU budget, accept freedom of movement, be unable to make our own trade agreements with other countries,and accept the overall jurisdiction of the ECJ. It gets worse. During this transitional time (after 29th March 2019) the UK would have to accept unconditionally any new additional or amended laws and costs the EU wants to impose. All whilst actually being excluded from any decision making – all pay with no say.

Even an agreement from the EU to this transitional agreement is not a foregone conclusion, in spite of Mrs May being forced to fall into line just to get this far.  She has had to agree to the EU’s methodology for working out outstanding financial liabilities, She has had to accept the ECJ creating a different (potentially privileged) legal status for EU citizens here and the Irish border being effectively an internal EEA border; (though she may not yet realise that is the only workable solution for a soft border). We would be stuck with the Common Fisheries Policy and there is nothing to stop the EU imposing further demands for accepting a transitional agreement or during implementation whilst we remain a vassal state, for example, participation in the emerging EU Army and its common procurement (concealed under the initials PESCO), implementing centrally imposed migrant quotas and paying EU imposed fines.

Mrs May’s recent Brussels ‘triumph’ is more likely a poisoned chalice where there is little incentive for the EU to be accommodating or to hurry up with a free trade agreement.  Such discussions are very much on the EU back burner until after we become a vassal state (aka “leave the EU in name only” on 29th March 2019). Mr Davis talks about having a FTA agreed before we leave the EU and Mrs May talks about its implementation period, but this isn’t going to happen, as explained above. Indeed, it was spelt out by the EU’s Trade Commissioner back in 2016.  Even if they believe what they are saying, these are no more than wishful thinking and no matter how often they repeat them, it won’t make their hopes come true.

Looking at the bigger picture, progress so far by Mrs May, our EU negotiators and the Department for (Not) Exiting the European Union in managing Brexit has been lamentable and cavalier towards managing risk. The recent Joint (progress) Report, (and EU Commission Communication), containing contradictions, fudge and weasel words to appease all interested parties, amounts to 15 pages. Although not legally binding, it is likely to become politically binding upon Mrs May, contradictions and all.  Then there are the 58 non-existent sector-by-sector impact assessments which Mr Davis once claimed existed, but has since denied. How can the best route out of the EU be chosen when those doing the choosing haven’t a clue what could go wrong or even how anything works?  By contrast, here are impressively informative sector-by-sector assessments by Eureferendum.com.

Predicting the future is fraught with imponderables and the potential exists for unforeseen events completely to change outcomes.  So in the end, it is possible that things could be fine. However, judging by experience to date, this looks increasingly unlikely. We can but hope that Mrs May will abandon her single-minded rejection of the EEA/EFTA option, as the options she seems to be pursuing contain impossible contradictions. Perhaps she doesn’t know enough yet to understand all the practicalities. Meanwhile, how long can Mr Davis will keep on talking up imaginary progress towards a free trade agreement whilst getting nowhere and at the same time, making regular, very public gaffes that undermine the credibility of Brexit negotiations?

Another question remains unanswered, perhaps because nobody has asked it yet:– why put all your efforts, concessions and kowtowing into negotiating a complex transitional agreement, which could end up lasting a long time, when a far better (or less damaging) simple solution exists (of EFTA/EEA membership) at least for a transitional arrangement?  You rejected it once, now you are leading us into a worse mess all round until who knows when, why?

Deal or no deal? Some thoughts on last week’s meeting

Last week I, along with about 90 other people, attended a conference entitled Deal or no deal – what are the options? hosted by David Campbell Bannerman MEP.  I was very much hoping to hear something of the government’s current thinking about the progress of the Brexit negotiations with the EU.

The opening speaker, Rt Hon Greg Hands MP, gave a very upbeat assessment of our trading opportunities post-Brexit. His department, he assured us, is ready, come what may. Nine new trade commissioners are to be appointed and our new tariff schedules are being prepared for the World Trade Organisation. At a time when protectionism is on the increase, there is considerable enthusiasm in some quarters (which he did not name) for a new independent UK to re-emerge as a champion of global free trade. He was adamant that all the major countries with whom the EU had signed trade deals were keen to continue a similar arrangement with us on Brexit.

One member of the audience expressed concern about how high standards in agriculture could be maintained if trade was to become freer. Mr Hands insisted that there would be no lowering of standards on food quality and we would not be flooded with poor-quality imports (Presumably a reference to chlorine-washed chickens about which there are currently many worries)

David Campbell Bannerman then introduced what he called the “Super Canada” option which, he claimed, was the Government’s  preferred option. This was no surprise, given that a few days beforehand, the EU was widely reported as considering a deal along the lines of CETA, the EU/Canada deal, with the UK. This has been strongly criticised both by the left and by other informed commentators for its inadequacy. Mr Bannerman said that the EU likes the CETA deal and intends to use it as a template for future trade deals with Australia and New Zealand too, Twelve of the 30 chapters in this deal would need no change, he informed us. The others would not be suitable without re-writing, as we would (presumably) wish to protect the NHS  The EU is worried about the future UK attitude towards regulation, as it doesn’t want to see us becoming the Singapore of the North Atlantic, an option enthusiastically supported by, among others, Owen Paterson, whose piece appeared, perhaps coincidentally, on the same day as this conference.

David Davis gave the keynote speech. He stated that he does not want to end up with no deal and is confident that we will get a deal. He pointed out the areas where progress had been made and insisted that our exit will be conducted in a smooth, orderly way.

There was, nonetheless, a possibility that we may not get a deal, but Whitehall was preparing for every eventuality.

Mrs May has consistently rejected using Norway as a model and Helle Hagenau, a familiar face to our more long-standing members, explained some of the pitfalls. Although advising against our staying in the EEA, however, she felt it was worth our re-joining EFTA as we needed some trading arrangement with the four EFTA countries once we leave. Switzerland is our sixth most important trading partner while bilateral trade with Norway  was worth £18.57 billion in 2015. She did, however, mention that although EFTA courts are not bound to implement the ECJ rulings, , they were in fact doing so, even though the ECJ has no direct power to intervene in EEA matters and the actions of the EFTA court was an encroachment on the original basis of the EEA agreement.  With the alleged indivisibility of the “Four freedoms” of the Single Market mentioned on a couple of occasions during the morning, I was surprised that no one mentioned Liechtenstein’s unilateral restriction on free movement of people at this point.

The final speaker was Rt Hon David Jones, who had formerly worked as a minister in DExEU (the Department for Exiting the European Union)  who informed the meeting that any role for the ECJ in our affairs post-Brexit would be totally unacceptable to him and a number of his colleagues. If this meant we would leave with no deal, then as far as he was concerned, so be it.

Interestingly, little was said about the details of any transitional arrangement, which as we have pointed out, the EU is only prepared to offer us under terms which would see us still under the thumb of the ECJ. We can therefore presume that Mr Jones and a number of his colleagues will be  equally opposed to any such arrangement.

Although only billed as a “comment” rather than a speech, the few words shared by Hans-Olaf Henkel of the BDI, the German equivalent of our CBI, were well received. Although he regretted our vote to leave the EU and still hoped Brexit wouldn’t happen,  he was most unimpressed with the way the EU was handling the negotiations. He referred in particular to the “divorce bill” which  he regarded as unacceptable. He also said that Brexit was the fault of Brussels, although his statement that “you joined an EU of sovereign nations and suddenly someone decided to make a United States of Europe out of it” was a rather naive comment given the United States of Europe was always the destination of the European project, right from the days of Jean Monnet.

It was good to meet up with a number of colleagues from other campaign organisations, quite a few of whom I had not seen since the referendum.  It was worth attending this meeting, although I came away with a clear sense that not everyone in the government is singing from the same songsheet, so perhaps the lack of a clear Brexit strategy is understandable given the balancing act required to avoid a massive rebellion on the back benches.

Among the other attendees was Viscount Matt Ridley, whose rather witty comments on the conference may be of interest. They can be found here.

Where our Brexit negotiators are going wrong – and it’s not just fishing!

When anyone says they want “a deep and special relationship you know they are only looking at their side of negotiations and are oblivious of the other side’s position.

The EU isn’t in a position to give us such a relationship. The project must come first – in other words, the first duty of the European Commission and Parliament is to preserve the unity of the remaining 27 members. They don’t want other countries leaving and expecting a special deal.

The UK Government also states that The same rules and laws will apply before and after Brexit. There is nothing wrong in moving the EU acquis across into domestic legislation through the European Union (Withdrawal) bill for areas that apply only within the UK. It is a different matter with any legislation which include a degree of interaction with EU27 – fisheries policy, for example. We may point out that we are maintaining regulatory convergence but the laws are not compatible from the EU prospective because in March 2019, we will no longer be an EU member state.

At the bottom of the majority of EU regulations it states: This Regulation shall be binding in its entirety and directly applicable in all Member States. As we will be no longer a member the regulation is neither binding nor applicable on the UK.

So while the two highlighted statements sound convincing at first glance, they are not and the fact that our negotiating team keeps repeating them shows that in reality, they are very vulnerable.

The Transitional deal

The above comments apply equally to the proposed two year transitional period. Because of the time which has already been lost, many in the establishment are hailing this as an important step forward but in reality, they have failed to appreciate how catastrophic the terms of such a deal are likely to be.

Fishing for Leave believes that only when the negotiations reach the point when a transitional arrangement can be discussed – which David Davis expects us to have reached by end of March 2018 – will it become apparent just how severe the conditions that will be imposed on the UK actually are.

The European Parliament has made its position clear in this document.  There will be no UK representation in any EU institution during that period, but we will have to accept the full rigours of EU institutions, and who is to say it will only last two years? We could well find ourselves no further forward in March 2021. Far from being Brexit, these two years (or perhaps longer) could well be the worst two years of our involvement with the EU project.

Let us consider some of the evidence for this:-

Firstly, from the House of Commons Department for Exiting the EU Committee 25th October 2017 (Our comments in Italics)

Q67            Joanna Cherry: Can I go back to the transitional period or the implementation period?  What is your understanding of the legal basis for a transitional deal or an implementation period?

Mr Davis: The presumption we have been working on is that it comes under the Article 50 proposal.  It was raised with us by the Commission.  The European Parliament sees it in those terms.  I am assuming the Commission legal service does.  But in many ways it is a question almost for the Commission rather than me.

If you are to negotiate, you have to know the legal basis under which you are working and not leave it to the other side.

Q68            Joanna Cherry: Do you have any legal advice of your own as to the basis of a transitional deal or implementation period?

Mr Davis: I am not going to share the legal advice for the reason I gave earlier: that is the convention.  But our belief is that it fits under Article 50.

Q69            Joanna Cherry: Legal advice exists, and it is your belief that it is under Article 50.

Mr Davis: I am not going to be drawn any further on that.  I said I believe it is going to be under Article 50.

As Article 50 comes from the Lisbon Treaty – TEU, it will cease to apply on 30th March 2019, so the transition period can be negotiated under article 50, but the implementation of the transition period will have to be under another EU legal basis.

Q70            Joanna Cherry: Article 50 does not actually say anything about transitional deals or implementation periods.

Mr Davis: Article 50 does not say very much about anything, if you read it.  It is the blandest and unhelpful phrase you are ever likely to come across, but there we are: that is that.

Article 50 is clearly laid out, and does not make reference to a transitional period.

Q71            Joanna Cherry: What it does make clear is that, during any period of deferred withdrawal, the treaties would continue to apply, so if we went into a period of deferred withdrawal under Article 50 we would still be in the single market; we would still be in the customs union; and we would still be under the jurisdiction of the European Court of Justice.  That is correct, isn’t it?

Mr Davis: My response to that is the same as my response to Mr Bone: we are not looking for deferred withdrawal; we are looking for an implementation period.

 If that is the case, whether you call it a transition deal or an implementation period, the bottom line is that it will not be covered by Article 50 because, along with the rest of the EU treaties, it will cease to apply on 29th March 2019

Q72            Joanna Cherry: But if it is the case that, as a matter of law, all you could have under Article 50 was a deferred withdrawal, we would not be leaving on 29th March 2019, would we?

Mr Davis: That is not what we have been negotiating for.  The phrase “deferred withdrawal” has never been used to me by the Commission.  The phrase they use is “transition period”.  Our term of art is “implementation period”.

(FfL believes Joanna Cherry is correct)

Then we move onto who will actually be running the country during the transitional period

Q58            Mr Rees-Mogg: To follow on from Mr Bone’s question, the worry is when we get to 29th March 2019 we stay under the auspices of the European Court; we are still in the customs union; we accept new rules as they come through; and we keep on paying money with the promise of a trade deal on the never‑never.

We are still therefore within the European Union for a further two years.  All that has happened is the endpoint has been delayed and the uncertainty in 2021, which the aim is to avoid, is just as great—but we have stayed in the European Union for two years longer and not achieved what we are aiming for.

Mr Davis: There are ways around that, but, if you forgive me, I am not going to detail them here today.

Q89            Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process.

Anything that would have impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.

This is another area where FfL believes Davis is wrong. As far as we understand things,  it is the acquis which has passed onto the UK statute books on or before 29th March 2019 that will be covered by the European Union (Withdrawal) Bill, not work in progress, that is moved across to domestic legislation, and as cherry picking is supposedly not on, Davis’s answer is unusual, and Rees-Mogg and Djanogly were in order to ask those questions.

Michel Barnier’s comments to House of Lords Committee 12th July 2017

  1. Barnier made it quite clear that the transition period would see us under the thumb of the ECJ:-

“You talked about the risk of divergence. It is a risk, not a certainty. The repeal Bill is meant to bring EU legislation into British laws, and that is very good and important, but what will happen D plus 10 or D plus 20? How will your law and your standards develop? ……

That period will be set in a framework, a transition period, and then there will be a new relationship. I cannot give you a time more precisely than that. I cannot even tell you the nature of it. All that I can say—and I can say this in the name of the EU—is that during that period we will maintain, in relation to the internal market, the regulatory architecture and supervision of the Court of Justice.”

The European Parliament said exactly the same thing three months earlier:-

From European Parliament resolution of 5th April 2017

Transitional arrangements

  1. Believes that transitional arrangements ensuring legal certainty and continuity can only be agreed between the European Union and the United Kingdom if they contain the right balance of rights and obligations for both parties and preserve the integrity of the European Union’s legal order, with the Court of Justice of the European Union responsible for settling any legal challenges; believes, moreover, that any such arrangements must also be strictly limited both in time – not exceeding three years – and in scope, as they can never be a substitute for European Union membership;

Michel Barnier raised further complications about the transitional deal:-

  • We will be able to apply absolutely no pressure on the EU during this time.

Speech by Michel Barnier at the press conference following the third round of Article 50 negotiations with the United Kingdom

Brussels, 31st August 2017

“…but it also wants to have these standards recognised automatically in the EU. That is what UK papers ask for. This is simply impossible.”

  • Even a transitional deal would require a treaty

Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament

Rome, 21st September 2017

The dialogue we are having here today – as in all national parliaments – is essential because our future partnership with the United Kingdom, and its legal text in the form of a treaty, will have to be ratified by you, when the time comes.  Once again, the future of the Union is our priority, not Brexit

Finally, the implication for fisheries

FfL believes the Government is heading into uncharted waters; creating problems for which they and not the EU are responsible.

1) Article 50 takes us cleanly out of the EU and the CFP, with no legal repercussions.

2) The European Union (Withdrawal) Bill takes us back in all but name if we include the fisheries regulations of the acquis. What we have just left, our own UK Parliament intends fully to take us back into again.

3) The proposed two year transitional/implementation period will require a treaty and during that time, we will be subject to the CFP.

Furthermore, FfL believe that it wouldn’t just be fisheries which would be affected by this “out and in” process, which could cause us to fall foul of the Vienna Convention on the Law of Treaties, a notoriously grey area, which could bog down the system with lengthy and complex legal cases.

While it is the intention of HMG to produce a Fisheries Bill, we don’t know what will be in the Bill. Can it be made watertight? This could be difficult in view of the EU stating there can be  no cherry picking in any transitional arrangement. We can be sure that the EU would  not allow the present fishery arrangements to be exempted from such a deal and worse still, EU control of our fisheries could become permanent if the Government does not change course and exempt the EU fisheries regulation from the European Union (Withdrawal) Bill.

MPs’ vote on Brexit deal – is it a climbdown?

Yesterday, David Davis announced that MPs would get a binding vote on the final Brexit deal agreed with the EU. Although Labour called this decision a “climbdown”, in reality, it does not concede very much and does not put Brexit in doubt.

Essentially, MPs will be asked to take it or leave it. The choices will either be to accept the deal or to crash out of the EU without a deal.

Unsurprisingly, the Tory incorrigibles, led by Dominic Grieve and Anna Soubry were none too happy with Davis’ concession, calling it unacceptable.

It may well be, however, that the wrangling turns out to be academic. There has to be an agreement upon which to vote and there is no sign of the two sides moving any closer. One informed commentator, indeed, has suggested that within a few weeks, the  chances of a deal will drop to zero.

There is no question that the “transitional deal” about which there has been much talk faces huge obstacles. Such outlines as have been provided would be unacceptable to many Tory Brexiteers and would still need a huge amount of negotiation with the EU within a short timescale to be signed off by Brexit day.

Is there a via media between this pipe dream (or better, pipe nightmare) and the worrying prospect of having to fall back on the so-called WTO option?  The EEA/EFTA route has been ruled out, a “deep and comprehensive” trade deal on the lines of the EU/Ukraine agreement would take too long and any bespoke deal would take too long to conclude.

And this remains the biggest concerns for those of us desiring to see a successful Brexit. There is no doubt that the remainiacs are still causing trouble, but outside the political bubble, very few people are taking any notice of them. The real worry is that the talks may fail and we will drift aimlessly towards March 29th 2019 with the resulting chaos leaving us battling calls to re-join the EU forthwith.

The older Milipede – partly right but partly very wrong indeed

Before the referendum, at least one well-known pro-remain politician talked of leaving the country if we voted to leave. Unfortunately, not only has there been no indication that Red Ken has kept to his word and cleared off to somewhere like North Korea, where he would probably feel far more at home, but also some equally odious politicians whom we thought we had already got rid of have re-emerged from obscurity to give us their pennyworth on the subject of our future relationship with the EU.

David Miliband (remember him?) has recently chipped in to the Brexit debate, saying that we should have a second referendum which would include the option of staying in the EU. He was critical of Theresa May for her decision to start the two-year countdown to Brexit by triggering Article 50 without knowing the outcome.

Irksome as it is to find oneself in agreement with this arch-Blairite and remoaner, unfortunately, he is correct – at least on this point. The government does not seem to know what it wants. Yes, in the long term, it wants a deal with the EU which will give us considerable access to the single market without being subject to the “four freedoms”  – in other words, a bespoke trade deal like CETA. But utterances from HM Government have been very heavy on  the “deep and special” relationship but very light on detail. Furthermore, how are we to get there? We are hearing talk of a transitional deal or “deferred withdrawal”, as David Davis calls it, but while it is no pleasure either to be agreeing with someone like the former Chancellor Alastair Darling, he is right in saying, “you can only transition to a destination.”

Such outlines as have been released about the proposed transitional deal are distinctly unsatisfactory. The “deferred withdrawal” would see the UK spending a further two years after March 2019 as an honorary member of the EU with no voting powers. We would continue to apply all the EU acquis and to pay into the EU budget, but would be totally passive, with no input into the EU’s processes. This would be not only a betrayal of Brexit but “a legal minefield” according to Chris Bryant, an EU expert at lawyers Brewin Leighton Paisner. Even this arrangement simply cannot be agreed, signed and ratified in time for Brexit Day.

Mr Bryant then went on to say that the government doesn’t seem to have got to grips with the need to pin down even a transitional deal legally. “Vague talk is not going to cut the mustard.” This is the problem. The government is convinced that the EU will agree to some sort of transitional deal, but when David Davis was asked about what legal authority the EU had for this, he was very evasive – and with good reason.

This exchange with the SNP MP Joanna Cherry in the Sel;ect Committee on Exiting the European Union on 25th October is particularly enlightening:-

Q67            Joanna Cherry: Can I go back to the transitional period or the implementation period?  What is your understanding of the legal basis for a transitional deal or an implementation period?

Mr Davis: The presumption we have been working on is that it comes under the Article 50 proposal.  It was raised with us by the Commission.  The European Parliament sees it in those terms.  I am assuming the Commission legal service does.  But in many ways it is a question almost for the Commission rather than me.

Q68            Joanna Cherry: Do you have any legal advice of your own as to the basis of a transitional deal or implementation period?

Mr Davis: I am not going to share the legal advice for the reason I gave earlier: that is the convention.  But our belief is that it fits under Article 50.

Q69            Joanna Cherry: Legal advice exists, and it is your belief that it is under Article 50.

Mr Davis: I am not going to be drawn any further on that.  I said I believe it is going to be under Article 50.

Q70            Joanna Cherry: Article 50 does not actually say anything about transitional deals or implementation periods.

Mr Davis: Article 50 does not say very much about anything, if you read it.  It is the blandest and unhelpful phrase you are ever likely to come across, but there we are: that is that.

Q71            Joanna Cherry: What it does make clear is that, during any period of deferred withdrawal, the treaties would continue to apply, so if we went into a period of deferred withdrawal under Article 50 we would still be in the single market; we would still be in the customs union; and we would still be under the jurisdiction of the European Court of Justice.  That is correct, isn’t it?

Mr Davis: My response to that is the same as my response to Mr Bone: we are not looking for deferred withdrawal; we are looking for an implementation period.

Q72            Joanna Cherry: But if it is the case that, as a matter of law, all you could have under Article 50 was a deferred withdrawal, we would not be leaving on 29 March 2019, would we?

Mr Davis: That is not what we have been negotiating for.  The phrase “deferred withdrawal” has never been used to me by the Commission.  The phrase they use is “transition period”.  Our term of art is “implementation period”.

Even the most unsatisfactory idea of being a passive honorary EU member requires the EU to agree and such an agreement would require it to go through almost as complex a legal process as a long-term deal.  There is no indication that Mr Davis has appreciated this important point. His answers suggest that he cannot explain the legal basis under which the “transitional deal”,” implementation period”, call it what you will, can be agreed. Once we leave the EU on 29th March 2019, the treaties no longer apply to the UK, including the Lisbon Treaty, with its Article 50, so it will have to be something else. But what?

Furthermore, what guarantee is being offered that the transitional arrangement, if agreed, really will only last for two years?  David Davis was not convincing in his reply here too when questioned by Sammy Wilson MP over this. Ironically, he then went on to say that “no deal” still remains an option.

But  is it really? The “no deal” option  assumes that “with one bound, we will be free.”  In other words, there may be a few little glitches but we would still survive – and indeed prosper  – if we  cut our ties at a stroke in the event of the talks getting bogged down. There are many reasons to be highly sceptical that things will run anything like so smoothly.

In summary, the government seems to believe there are only two positions in which the UK could  find itself in March 2019 and both would be disastrous.The first would see us essentially still in the EU in all but name, the second is cloud cuckoo land.  – or rather, a massive headache for many businesses which could well lead to a very severe recession.

Where the Government is going wrong in its thinking on both the proposed long and short term relationships with the EU is its assumption that if any nation has aligned its own regulation with that of the EU, the EU will happily treat it as an honorary member of the club. This is to miss the whole point of the EU project – it is not a trading bloc but a political construct. The sheer complexity of Brexit has already shown to us just how much independence we have already surrendered thanks to Edward Heath’s manic determination to shackle us to this contruct.

So  Miliband is right in saying that the government should have worked out its exit strategy before triggering Article 50. Even all this time later, less than a week before the mid-point between last year’s referendum and Brexit day, the government still seems caught between a rock and a hard place  when it comes to devising a strategy which would enable us to leave the EU satisfactorily.

His other comments, however, are totally and completely wrong. “”Those of us who are outside the country take absolutely no pleasure in the low ebb to which Britain has sunk. Brits abroad look at the fact other countries see us in retreat, having lost our way” he said. For all the muddle of the negotiations at the moment, this is not a country in retreat nor one which has lost its way. Rather, we are groping our way slowly and indeed very awkwardly towards something better. It may be a long tunnel, but one day, there will be some light at the end. To reiterate a point made above – and indeed, on many other occasions on this website – the Brexit negotiations have laid bare just how many areas of public policy have been surrendered by our government as a result of 43 years’ membership of the EU. It has been like an octopus, wrapping its tentacles around our political institutions and slowly squeezing the life out of them. We want to escape before it finally throttles us. If we have sunk to a low ebb, it’s because of our membership of the EU, not because we voted to leave.

The Brexit vote was a vote to re-join normality – a reflection of our desire to be a successful nation state once again and a vote of confidence in ourselves that we can do it. I doubt if any of us involved in the campaign to free the UK from the EU have had the slightest doubt that it was the right thing to do.  Successful nation states are flourishing in Asia, North and South America and Australasia. Nearer to home, Norway, Iceland and Switzerland are happy outside the EU. Indeed, in Switzerland, one minister recently said that in his country only “a few lunatics” want to join the EU.  It will take some time to readjust and there is no denying that the government is in a mess over its Brexit strategy at the moment, but even if Miliband and his like cannot hide their contempt for the UK electorate’s decision to regain its freedom, we did the right thing and we will be vindicated  – eventually.

Photo by Hanna Irßlinger Fotografie