Holiday homework – suggested reading

So much of the information around the Brexit debate is highly partial and skewed to one agenda or another, as politicians, media folk and journalists ride their hobby horses fiercely in all directions, often to tight deadlines which preclude calm thought and deep research. So it is refreshing to have a balanced view from a man of undoubted expertise, deep knowledge and unrivalled experience who is trying to bring some clarity and balance to the debate.

Sir Ivan Rogers was the UK’s Representative to Brussels until his resignation shortly before Mrs. May’s Lancaster House Speech in January 2017. His parting advice to his colleagues was that they must be sure to speak truth to power, especially when the truth was unwelcome. Judging from subsequent events, it seems that all of it may not have got through.

Here he reviews the history of the Eurosceptic debate and suggests a way forward towards the achievement of a rational, prosperous and mutually satisfactory relationship with our nearest neighbours and largest trading partners, as well as with the wider world.

His comments on free trade, the customs union and the unrealistic tone of much of the post-referendum debate are well worth reading. While one cannot know exactly where Sir Ivan stands, he comes across as one of those people who, while naturally not wanting us to be leaving the EU, has accepted the result and genuinely wants to see a successful Brexit. There are unquestionably some pseudo-Brexiteers around – i.e., people who deliberately wish to create a Brexit in name only in order to prepare the ground for our re-entry into the EU, but there are also a good number of ex-remain supporters who are far more concerned about the consequences of a botched Brexit and don’t have any hidden agenda. The insights of such people are well worthy of consideration, regardless of their stance prior to the 2016 referendum.

 

What is the truth of freedom of movement?

Whilst it is often stated that Freedom of Movement is a non-negotiable and a fundamental indivisible principle of the Single Market, the truth is actually far more complex.  The ‘four freedoms’ are not indivisible for countries outside the EU, such as those who are members of the European Economic Area, (EEA).

Furthermore, the EU has made provision in legally binding and proposed agreements unilaterally to control freedom of movement along with the other freedoms of the Single Market.  The UK could do the same if it remained a member of the Single Market (and wider European Economic Area, EEA) by re-joining The European Free Trade Association (EFTA).  The same actually applies to the EU’s proposed draft text to the Withdrawal Agreement.  Thus Mrs May and her government are, at least in this regard, determined to pursue a Brexit strategy (Brexit in name only) which is far worse than what is actually available utilizing existing established agreements.

The EEA Agreement governs the Single Market (and wider EEA)

The operation of the Single Market (and wider EEA) is set by the EEA Agreement, to which all Member States of the EU and EFTA (excluding Switzerland) are signatories. For the EFTA/EEA members, the EEA Agreement is amended by the addition of Annexes and Protocols.  Thus the EFTA countries have bespoke variations on the basic EEA Agreement. EFTA countries also have greater flexibility since powers retained by individual EFTA countries have often been removed from the individual Member States of the EU and transferred to the European Commission or its agencies (acting for the whole EU).  Consequently EU Member States often find they cannot act unilaterally, whilst individual EFTA countries can do so and they make use of this freedom to serve their interests.

Within the EEA Agreement Freedom of Movement is Unilaterally Controllable

The Single Market (and wider EEA), has free movement of goods, persons, services and capital as basic principles. However, the EEA Agreement also includes an opt-out which can be applied unilaterally by EFTA countries (see Chapter 4, Safeguard Provisions, Article 112), but obviously not by Members States of the EU.  It states:

Safeguard Provisions, Article 112

  1. If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113.
  2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.
  3. The safeguard measures shall apply with regard to all Contracting Parties.

This opt-out is intended to be “temporary” (until a permanent solution is implemented), but nevertheless can be invoked and maintained in the absence of that permanent solution.  It has already been used by Liechtenstein to control immigration and Iceland to control capital flows in the wake of the financial crisis.

The EU’s Ability to Unilaterally Control Freedom of Movement

So useful and/or essential does the EU regard Articles 112 and 114 of the EEA Agreement that, rather than them being toothless window-dressing, it chose to include them virtually unchanged in its draft Withdrawal Agreement, Article 13 (Protocols NI) which states:

Article 13 Safeguards

  1. If the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, the Union or the United Kingdom may unilaterally take appropriate measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
  2. If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.

The EU is intentionally ensuring, whether the UK is in the EEA or not, that the EU can unilaterally restrict immigration into the remaining Member States from the UK. The EU is also agreeing here that the UK can unilaterally restrict immigration from the remaining Member States into the UK.

Implementing the Safeguard Measures Immediately

In the UK, there are permanent economic, infrastructural and societal factors which would justify implementing the existing Safeguard Measures immediately, as of 29th March 2019, when we supposedly leave the EU whilst de facto remaining within the Single Market.  Subsequently it would be prudent to negotiate the introduction of specific clauses to enshrine a right to permanent or longer term control.

Why the untruths about Free Movement?

The kindest explanation as to why Freedom of Movement is misrepresented is that many politicians are actually being economical with the truth, and are avoiding the fuller picture which contradicts their claims.  They may also fail to understand the subtleties of that fuller picture.   This is somewhat obvious in Mrs May’s Lancaster House speech 17th January 2017 where she appears to have accepted some very disingenuous claims about free movement. Here are her words:

But I want to be clear. What I am proposing cannot mean membership of the single market.

European leaders have said many times that membership means accepting the ‘4 freedoms’ of goods, capital, services and people. And being out of the EU but a member of the single market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.

Mrs May also appears to fail to understand how the EU and EEA works, including the subordination of the European Court of Justice. These are explained in more detail here with links to further information.

The great tragedy of missed opportunity

This country desperately needs the powers to choose who we should let in and under what circumstances. This was one of the loudest great messages from the Brexit Referendum result. Voters want us to be able to control our borders. To repeat, that power of control is there in legal texts. It could have been grasped by Mrs May and her colleagues in government if they had chosen to do so.   They have chosen – at least up to now – instead a path of uncertainty, cave-ins to the EU and potential chaos.  It is a price the British people should not have to bear.

Crisis management of the Brexit Article 50 negotiations

The European Union’s Brexit negotiating screws are turning on a weakened Mrs May and Co. It is painful to behold the concessions given to them only to be followed by their extra demands, such as the rights of EU citizens in the UK after Brexit.

It must be tortuous being there in the room with Jean-Claude Juncker, Donald Tusk or Guy Verhofstadt (each an EU version of the Marquis de Sade) and Angela Merkel’s (pig headed) attack dogs enjoying Schadenfreude. Did anyone think we could actually negotiate with them without being treated to an EU version of Count Dracula siphoning out as much of our life blood as possible? At what point do we recognise that these Article 50 negotiations are going to make us second class citizens in our own country and worse?  Some serious crisis management is needed, preferably before being on the rack of this modern day Inquisition (or Imposition) gets unbearable.

The most basic rules of crisis management are:

  • Don’t get into a crisis in the first place;
  • Once in a crisis, don’t do anything to make it worse;
  • Don’t believe that the original timetable, objectives and budget can still be achieved;
  • The earlier the remedial intervention, the greater the chances of recovery.

The basic problem – why things go wrong in the first place and don’t get corrected in time – is that all decisions and resulting actions, whatever is happening,  occur within an underlying paradigm or conceptual framework.  This paradigm includes subject and other knowledge, assumptions, beliefs, aspirations, language, philosophy etc. and operates to constrain intellectual activity. Thomas Kuhn in The Structure of Scientific Revolutions explored the effect of paradigms on scientific progress. Kuhn noted that the luminaries of the science community tended limit their interest to exploring an existing ‘conventional world view’ of science, and ignoring contradictory evidence and theories. Progress tended to come from the ‘outsiders’ who established a new paradigm.

Individual paradigms can also turn into a group one or consensus that is fundamentally flawed; peer group pressure commonly stifles any dissenting views. Irving L. Janis in Victims of Groupthink explored how a group (in this case concerned with American foreign policy) could make potentially dangerous mistakes. He has suggested in Crucial Decisions – Leadership in Policymaking and Crisis Management how this can be avoidedThe picture of imperatives towards bad policymaking is completed by process and bureaucratic controls, poor communications, custom and practice, heuristic shortcuts and management/political leadership ego (loss of face) which can all also help to prevent reality being accepted and acted upon expeditiously, when things are going wrong.

Regarding Brexit negotiations, once Mrs May made her Lancaster House speech in January this year the die was cast, come EU hell, high water, or General Election disaster. Yet there were – and still are – many issues where our Brexit negotiations looks like shambolic vague wishful thinking, based on incomplete and inaccurate information (see Brexit and some Alternative Facts), and questionable assumptions (for some significant assumptions see The Big EU-UK Question).

 This makes us vulnerable and risks our being taken to the cleaners by the EU over, for example,: the number, order and imposed conditions of subjects ‘negotiated’ such as any ongoing contributions to the EU black hole (aka budget and liabilities), turning EU citizens remaining in this country into a privileged caste, trade/bureaucratic regulation terms propelling our finest enterprises on a one way route to commercial oblivion and setting us up as a warning of what the vengeance of the EU élite means for any wayward populists in the remaining EU Member States.  Less than two months ago, it was obvious the EU was behaving in an uncompromising way, showing bad faith in respect to Brexit negotiations (see Mayday, May! Brexit Mayday). Yet we are weaker now compared with then and need to come up with an alternative strategy (or strategies) that stands a better chance of getting us out of the claws of the EU political machinery and machinations – ensuring we achieve a real Brexit and not continuing EU members in reality, if not in name.

Recovery in a crisis needs a new paradigm to replace the existing failing one, and the resources to make it work. This suggests rapidly taking on board an effective Company Doctor or turnaround specialist (or team) for Brexit who thinks the unthinkable and stamps his or her authority and project management expertise quickly on the negotiations.  Forget the idea of just getting more of the same people – usually this actually slows down progress.  The new paradigm needs to be based on an understanding of the existing failing one and its obvious flaws, such as unrealistic assumptions about the EU’ negotiating priorities,  their desire to reach a deal,  their honesty and integrity,  their flexibility to achieve a deal, what is achievable within the timetable and the difference between a real comprehensive fully resourced plan and vacuous hyperbole.  The new paradigm needs to be evidence- and analysis-driven, including risk assessments of probabilities of being realistic. Above all, it must not be based on wishful thinking or aspirations, or after drinks entertainment for the Westminster Bubble.  And most importantly the existing team mustn’t shoot the messenger because the message is unpalatable or demand a sycophantic re-write.

It would be nice to think that everything will be all right in the end and we will leave the EU seamlessly in March 2019, despite the best (or worst) efforts of our negotiating team under the direction of Mrs May and Mr Davis (Secretary of State for Exiting the European Union).  Unfortunately history is full of projects that failed to come in on time, budget and to specified requirements or objectives.  In the absence of hard evidence to the contrary, Brexit negotiations appear to be heading the same way; or more metaphorically the Brexit orchestra is playing as the Titanic ship of state sails serenely on towards a sea full of EU negotiating icebergs.