Clash of cultures – the root of our Brexit difficulties

Can the conflicting opinions on the EU’s intentions in the Brexit negotiations be reconciled? In my hearing, a staunch Brexit supporter recently referred to Michel Barnier as a “reasonable man” whereas  I have read numerous comments from people convinced that the EU wants to punish us and will deliberately be as unreasonable as possible. Who is correct?

It cannot be denied that Brits and Continentals do seem to have a different mindset when it comes to negotiations. Our attention was recently drawn to an interesting article on this subject on the Conservative Home website by James Arnell, a lawyer with some experience of negotiating with people from European countries. He claimed that such people begin with unreasonable demands and only at the last minute does a deal emerge.

Fair enough, but this does not get to the heart of the conundrum. The fundamental problem is that many of us don’t understand the difference in culture between our country and the majority of the other member states.

It goes back centuries, possibly longer. Essentially, our Common Law legal system bequeathed to us a love of liberty and flexibility. We don’t like everything to be rigidly codified and prefer laws to which we can adhere to in spirit rather than obeying to the letter. Such a mindset is as inevitable outworking of Common Law with its insistence on equality and inalienable rights.

Across the water, the two most influential figures in the development of law were the Byzantine emperor Justinian (d.565) and Napoleon. Their legal systems, which form the basis of  most of the law codes in Europe, were very top-down. Freedoms were conditional and the concept of everyone being equal before the law was unknown.

The EU’s approach to lawmaking is very much in that tradition and like all such systems, tends to be very exact and very bureaucratic. It will legislate in great detail in areas where an independent UK would not have been so precise or perhaps, not bothered at all. We may have laughed at the cuddly toy sheep depicted in Regulation 1462/2006, but it graphically illustrates the difference in approach which has been one of the biggest problems facing our politicians and civil servants since 1973 and which lies at the root of the lack of progress with the Brexit talks.

Very few UK politicians have appreciated the difference in mindset between ourselves and the rest of the EU – even those who have supported our membership. On one occasion, Sir John Major was taken to one side by Helmut Kohl, the former German Chancellor, and told to go home and read the treaties as he clearly had never done so.

This mindset manifests itself in various other ways, some mildly amusing, others frustrating. The Civil Service did not always find it easy to convert EU directives into UK law and often ended up “gold-plating”  – in other words, interpreting them in an excessively strict manner. A German motorist was once apprehended by the police for driving his Porsche at well over 100mph on a UK motorway. His excuse was that the 70mph limit did not seem to apply as so many other cars were going faster. In other words, he could not get his head round the concept of obeying the spirit but not the letter of the law – a guideline rather than something always enforced to the letter.

The different legal status of a UK policeman compared with a Continental Gendarme is another aspect of the same clash of mindsets. As Christopher Gill, one of the former “Maastricht Rebel” Conservative MPs explains,

“The tradition of British policing has been to protect individuals and their property from criminal activity and to apprehend those who transgress whereas on the continent police act almost like an army of occupation, responsible for public order enforcement, crowd control and generally buttressing the authority of the civil state as opposed to defending the freedom of the individual citizen”.

On a personal note, I can recall during my time working in Brussels how often colleagues used to moan about Belgian bureaucracy. The amount of form-filling required to register for residence or to let the authorities know that you worked for the EU and were thus covered by different tax arrangements was quite staggering. Yet it didn’t seem to bother the Belgians that their taxes were being used to pay the salaries of some public sector workers whose sole occupation seemed to be to stamp forms!

When we joined the EU, however, whether our politicians understood it or not – and most of them almost certainly didn’t – we agreed to play by their rules and in leaving the EU, it is exactly the same. Under Article 50, we have two options – to come to an agreement or leave without one. As M. Barnier has pointed out, it was our decision to leave. If, therefore, we want to leave by the EU’s approved route, our exit negotiations have to be conducted according to EU rules which limit the scope for flexibility. The EU in other words will not be flexible because it CANNOT be flexible in some areas where our ministers would like a bit of “give and take”.

For instance, Liam Fox’s claim that an EU-UK trade deal would be “the easiest in history” because we are beginning with zero tariffs and maximum regulatory convergence fails to take into account the simple fact that under EU rules, we become a “third country” on independence and the treaties cease to apply. Whatever the levels of convergence, in March 2019 our entire current relationship with the EU will be no more and any new trading arrangements will need to be put together on a totally different basis.  The EU can’t bend the rules for us, whether it wants to or not.

This clash of cultures shows why it was right to vote to leave last year. It also explains why we are likely to prosper once we have left, even though when it comes to international trade, we will still be subject to any regulation originating with global bodies. David Davis’ “sunlit uplands” are therefore not a total fantasy, but we’ve got to get there first! We will only do so if our negotiating team fully get to grips with the nature of the organisation we are trying to leave. It may be boring, tedious stuff, but if we are to leave smoothly, there is an urgent need for Civil Servants and politicians alike to heed the advice which John Major never took – Go and read the treaties!

 

 

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Britain needs to play it smarter

There is some chatter on the web as to whether Brexit can be parked. Personally I don’t see that happening. Call it a hunch but I think the process has taken on a life of its own independent of the politicians and they lack the coherence to influence it in either direction. I can, however, see Brexit transmogrifying into something that is neither Brexit nor EU membership.

The repeal bill process is not an afternoon at the photocopier. It’s a major feat of legal engineering and it is going to take years. We can pass certain bills that technically mean we have left but the Brexit limbo could be of such a composition where making the final switchover in various sectors, ending EU supremacy, would be viewed as so destructive that it would go into some sort of review, much like TTIP has, where it exists as a concept but it’s not actually going anywhere until it’s taken off the shelf and dusted down.

We have heard much about the possibility of an accidental Brexit where we crash out without a deal, but there is also a possibility of “accidental remain” where our lack of direction and inability to agree on anything leaves it hanging in the wind.

The only way I see to avoid this fate is for the government to face the reality that the EEA is the fastest and most practical means of leaving the EU. It doesn’t matter if the EEA is suboptimal. It has the singular merit of being out of the EU.

We can quibble until the end of time over the various compromises the UK would have to make but since the advent of the WTO agreement on Technical Barriers to Trade there is little likelihood of reaching that elusive regulatory sovereignty. That issue we can address later. To my mind it is secondary to ending EU political union.

If we do not want to drift into a Brexit limbo then we need to see some decisive action from the government. All we are seeing right now is dithering, pretending it’s all there for the taking when what we’re actually doing is reinventing the wheel – and a poor copy at that.

The basic mistake is the belief that the Brexit process itself is the opportunity to do everything all at once. This is a classic misnomer. If anything the Article 50 process is a lengthy admin chore we must go through before we can start looking at systemic reforms. The only safe and sensible way to leave is by reverse engineering our membership and that means the first step has to be quite close to EU membership. It wouldn’t even matter if post-Brexit absolutely nothing had changed. What matters is that, having completed Article 50, we would have the power to start changing things on our own schedule.

This is the bit where us leavers need to get real. All of us have a strong dislike of the EU, but we cannot say that everything about economic integration is bad. What matters is that we preserve what is worth keeping and build on it. It would be a grave mistake to sacrifice any European trade in the belief that trading with the rest of the world will compensate. It really won’t.

That though, is going to require some adaptation to our ideas. Like it or not, the EU has us over a barrel. As the regional regulatory superpower it does call the shots, and since the EU has a number of other countries hooked into regulatory harmonisation by way of FTAs we are going to find the wiggle room for an independent UK régime will be next to nil.

Ultimately we are going to have to change our attitude to the EU in order to make a success of it. The hostile and confrontational tone is not doing us any good and it’s dangerous because we will need the EU’s extensive assistance in borrowing their third party cooperation agreements and trade deals. Secondly, since we won’t be going all out for regulatory sovereignty, our trade policy will have to be a collaborative and complementary policy to that of the EU.

As we have seen the EU likes to get bogged down in deep and comprehensive bundled deals which take a number of years and very often get tied up in technical detail at the last minute over soft cheeses or formaldehyde content in furniture. Despite this method causing a number of hang-ups for CETA and the demise of TTIP, they don’t seem to have learned. There are other ways.

What we can do is look at effects based trade policy. As a foreign policy objective we want to reduce the push factors that drive migration. In order to do that we need to get the poorest countries trading. We are told by Suella Fernandes that Brexit means we can reduce tariffs for Lesser Developed Countries. This fails on three counts in that for a long time the UK will maintain the existing tariff schedules, LDC’s already have tariff free access under the Anything But Arms agreement – and finally, it’s non-tariff barriers which stand in the way.

Ultimately LDCs struggle to meet stringent standards. Jacob Rees-Mogg and the likes would have it that we can trade away our safety standards but that invites a deluge of counterfeit and dangerous goods. Consumers won’t wear it. Our mission is to use our aid budget for technical assistance to ensure that they can meet regulatory requirements for export. Not only does that improve their ability to trade with the UK it gives them access to the European market as well.

Effectively we would be improving access to the single market for everyone. The benefit to us is the eventual slowdown in migration but also more trade means more opportunities for UK fintech and business services. Something our economy is geared toward in ways that France and Germany are not.

By acting in this way we have no real need to get bogged down in comprehensive bilateral talks as the EU does. What matters is we are enabling trade and paving the way for the EU to forge deals, to which we can be a party. Sector by sector we can improve the viability of African trade at a speed the EU is incapable of.

As much as this approach is in the cooperative spirit, little by little it removes the EU’s excuses for excluding poorer countries and in so doing we make allies and friends with countries with whom we cooperate. From there we can forge sectoral alliances to further pressure the EU into liberalisation and perhaps changing its stagnant trade practices.

All of this is quite futile though if we maintain an adversarial attitude to the EU. If we leave the single market we actually surrender an ace in the hole for our trade strategy while also losing the opportunity to expand and enhance it – and wrest it out of EU control. Moving entirely out of the EU sphere leaves us hobbled in Europe and pecking at scraps elsewhere.

I wish I could report otherwise but it’s time eurosceptics faced facts. The world got complicated while we were in our EU slumber. The beast we helped create is a power in its own right with its own gravitational pull. What is done cannot be undone. What we can do is leverage our position as an agile free trading country to strengthen the global rules based system and drag the EU out of its protectionist instincts. If we can do that we solve a number of problems not only for the UK but Europe as a whole.

Photo by (Mick Baker)rooster

Brexit is not enough

Being a realistic leaver is a difficult line to walk. Some think Brexit is a matter of crisis management. Others think it’s an opportunity to be grasped. I think it is both. In this I really don’t think it helpful to pretend Brexit is a walk in the park but it certainly isn’t a catastrophe either. As much as I have to keep making the case for an orderly withdrawal, I have to keep making the case for leaving.

This week I have seen a number of well-argued pieces that Brexit should be called off merely because it’s too expensive for the marginal gains we might make. Again I find myself pointing out that Brexit is not an economic proposition. This is really a matter of individual conscience as to whether you want Britain to be part of a country called Europe. I really don’t for a whole host of reasons.

It is these issues we need to be more vocal about. Remainers tend to view Brexit as an entirely transactional issue with a price tag and that is the only measure of it. We are still not seeing any principled cases presented for full economic and political union. This week presents an ideal opportunity to restate why we don’t want that.

Presently, negotiations are centred around the matter of citizens’ rights. In all the online debates I’ve had this is reduced to just the perks and entitlements dressed up as rights when in fact the very concept of EU citizenship is an extension of EU imperialism and an intolerable incursion on our democracy.

In purely economic terms, free movement of goods, services and people can be achieved by means other than political union. There is every reason to argue for a status that closely matches single market membership, but to extend the concept of EU citizenship is to grant supreme authority to the EU to legislate on matters that pertain to our identity, values and our somewhat unique cultural constitution. These are not irrelevant superstitions of little Englanders. These are major constitutional issues.

While we are told that the EU does not legislate directly in many of these matters, that is not true. Moreover it can “recommend” that we adopt international conventions on things like labour rights – and it can issue directives which form the parameters our policies must follow. These are the invisible goalposts that constrain democracy. As bad as that is, we are finding that ever more regulation pertaining to social issues is touched on by modern trade agreements – and that spells less control in the future.

In this the modern left has an aversion to democracy and sees no real problem with democracy being constrained as the EU is largely a benign technocracy which, in their eyes, curbs the excesses of Tories. What we eurosceptics know, of course, is that the road to hell is paved with good intentions and all too often the law of unintended consequences will inevitably make manageable problems worse.

What makes this difficult to argue is the overall lack of domestic competence and presently a lack of will to diverge significantly from the rights and entitlements we have already established – thus rendering our new-found abilities somewhat inert. Many of the stated advantages of Brexit are only theoretical or conceptual – so they ask why go to all the bother now?

That is a question I often find difficult to argue because most Brits tend to be quite utilitarian about such things. Most people will ask how it directly affects them – and in most instances, the effects of EU policy are insidious, difficult to prove and Brexit is not necessarily a remedy.

The point, however, is that the EU depends on this slovenly utilitarianism to advance its own agenda. A gradual salami slicing of powers may not make much immediate impact but now we are leaving we can see the enormity of precisely what has been handed over while we were sleeping. The point of Brexit is to get out before we reach that point of no return.

Some argue that we are long past that point of no return which is why we shouldn’t bother. Arguably they are half right. What is done is not easily undone – but not actually impossible. We would have saved ourselves a lot of hassle and expense by getting out sooner but the fact is we didn’t because our establishment colluded to deny us having a say in the matter. If there is now a cost then the blame lies squarely with those who did this to us in the first place – not the Brexiteers. This is the price we pay for correcting their mistake.

Ultimately the power that MPs exercise is power held in trust on our behalf. That is the basis of representative democracy. The power is not theirs to give away thus it becomes a matter of necessity that representative democracy is suspended in favour of plebiscite to return those powers. That is why we fought for a referendum. Our trust has been abused and power has been given away by deception.

That though, is not enough for us. Even now we see that die-hard remainers are chomping at the bit for parliament to reassert its supremacy and override the mandate of the referendum. This is why Brexit alone is insufficient. The last four decades have proven that representative democracy as a concept is insufficient democracy – if we can even call it democracy at all. It is clear that we need a revised constitution to ensure they never do this to us again.

A year ago we achieved what many of us have worked tirelessly toward for a very long time. The temptation now is to shut up shop thinking we have achieved our goal. We would point out that we are nowhere close to having completed the task. Leaving the EU is largely an administrative chore. We now face a decades-long campaign to reshape and revitalise our democracy and put the people in control rather than the wastrels and frauds in Westminster. If the power we have fought so hard to return remains in the hands on Westminster then we cannot say that we have taken back control. London has proved time and again that it cannot be trusted with the power that belongs to us.

Fisheries Part 3 – There must be no attempt to create a Mark 2 CFP on independence

Many of my fisheries articles have looked back at previous events, but if HMG produces the correct policy, we can finally start to look forward.

In the last article, we pointed out how the Treaties shall cease to apply, taking the Regulations with them. Regulation 170/83 started the EU quota, based on tonnage per species, including the distribution keys to the various Member States, known as relative stability. This cancerous Regulation has now been superseded by another equally dreadful one – Regulation 1380./2013.

The EU’s quota system, like the CFP as a whole, was nothing more than a political tool designed to speed up the drive towards integration. Given that it is widely acknowledged to have been an environmental and economic disaster, it may seem incredible that, with the prospect of an escape from this project now on the horizon, some people are lobbying for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present. Such an outcome would not be Brexit and would continue to be an environmental disaster.

Any sort of shadow CFP must be opposed because the quota system is so unworkable. It has ended up criminalising all EU fishermen, as they have all had to cheat in order to survive. The cheating goes back a long way. It began with falsifying records of how much of which species were caught and where.

Misreporting the species of fish which were being caught and the area in which a given boat was fishing resulted in wrong scientific data and an inaccurate basis on which to determine future quota.

Then there are the unauthorised, so called “black fish” landings. If fishermen have exceeded their quota, they either have to land fish surreptitiously or throw them back in the sea. The authorities have long recognised there is a problem with the CFP, but their attempts to close the loopholes by tightening regulation has only made matters worse. The latest controversy has been the introduction of an unworkable discard ban which, in practise, has not stopped the destruction of thousands of tons of marketable fish. No one knows exactly how much is still being discarded.

It is possible to design gear to separate species, although not to the level necessary fully to prevent discarding. At least this gear does ensure that what is deliberately allowed to escape survives. However, the discard regulations are so complex that not even the fisheries officers are fully conversant with how the rules apply in different areas.

When you are given a quota by weight per species, you end up destroying other species in the process of trying to catch those final few fish, while at the same time prolonging fishing time. For the unique mixed fishing environment found in UK waters, home to approximately 30 different species of fish, you could not have devised a more destructive method of managing fisheries than the discard regulations included in the CFP.

I was the first person to highlight discarding, back in 1988, when I used to write a fortnightly column in the fishing press. Now, 28 years on, we now have a discard ban which looks good on paper, but it is still happening out at sea thanks to the unworkable EU system of quota. I made the discard calculations then on the basis of what I had seen myself when working on board a number of trawlers. Unfortunately, the EU’s current discard rules were written by people who are committed to pursuing an integrationist agenda and who have never been out at sea or understood the difficulties which fishermen are facing.

Of course, an independent UK will need some sort of fisheries management system and we will look at this in more detail in part 4, but it would be crazy to copy a system which is rotten in the core – one that never has, and never will, work in our mixed fishery. Unfortunately, pressure is being applied to do just this – to roll over and give the British people’s resource away again. There are far too many people talking about just negotiating a share of our own resource – in other words, allowing a sort of CFP to continue with the rest of the resource being shared out among the present EU members. To start discussions on that basis is capitulation.

Why is anyone supporting anything even remotely resembling the CFP? Simply because some within the Industry want to keep the status quo in the aftermath of Brexit in order to protect their interests. They have invested millions of pounds in purchasing quota, turning quota into a saleable commodity, for which, if the CFP were to be scrapped, they would have no legal entitlement. With a certain bank having invested heavily in purchasing quota, it and other beneficiaries are creating a great deal of pressure for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present.

Let us be clear on this:- such pressures must be resisted and a policy of procrastination is perfectly sufficient.  Our negotiators need only sit the two years out, do absolutely nothing and wait. As proven by the Kent Kirk case, which we considered in the previous article, if there is no agreement by the end of the two-year period stipulated under Article 50, fisheries reverts to national control. In other words, it becomes our national resource and the other EU countries will have no quota whatsoever unless we offer it to them. Once our negotiators appreciate how strong a hand this deals us, it will be the EU that will be desperate to negotiate with us, not the other way round.

In a future article, I will list the tonnage and value of the catch which EU vessels currently take out of British waters without giving us anything in return. I will also show how much of this freebie we provide them is then sold back to us. The figures will come as something of a shock.

It is ironic that one of the objectives of the EU project was to create a sense of unity among the peoples of European. The CFP has had the opposite effect, causing resentment and nationalism. It would be great to get back to the earlier situation when fishermen were seaman first and foremost, and nationality didn’t matter, but then to understand this camaraderie, you have to have spent time out there at sea, something most EU officials would never dream of doing.

Five more monographs on Brexit from the Leave Alliance

The Leave Alliance, of which the Campaign for an Independent Britain is a member, has produced five further monographs on the subject of Brexit.

They can be downloaded here:-

Post-Brexit regulation

Trade agreements

WTO Schedules and Concessions

A European Economic Space

Liechtenstein reprised

Alternatively, a full list of monographs can be found on this page of the Leave Alliance website.

All are well worth reading, setting out some of the issues we will need to face when negotiating our exit from the EU.

 

 

BREXIT – Onwards from the Referendum by Edward Spalton

(This article was written for our Chairman’s local newspaper, the “Three villages” magazine)

The leading campaigns on both sides of the EU referendum were lacking in honesty. In that, they followed the example of successive British governments which have all pretended that the European project concerned the economy (“The Common Market”) when it was always about developing a single European government under which the nations of Europe would be subordinated in a new polity. We know from official documents that the government understood this from 1960.

The Remain side presented the EU as being about the economy and the Leave side emphasised the cash savings from leaving. Both exaggerated greatly.

In 1971 the Foreign Office advised the government “…there would be a major responsibility on HM Government and on all political parties not to exacerbate public concern by attributing unpopular policies to the remote and unmanageable workings of the (European) Community”. The referendum was the last hurrah for this long-maintained policy of deceit. The leaders of all the main parties stuck to it and lost. So we are now moving in a new direction and the impetus has come from the people not from the political establishment.

Mrs May has said that “Brexit means Brexit” but people are naturally apprehensive about how things will develop. There are three main approaches to forming a new relationship with our European neighbours:

  • The Bilateral Option – An agreement or series of agreements negotiated individually, as Switzerland has done. This takes a very long time – 16 years for the Swiss.
  • The WTO Option – To have a minimal agreement with the EU and to rely on the rules of the World Trade Organisation. This would involve paying tariffs on certain classes of goods exported to the EU (and vice versa) but would be very cumbersome if it was not accompanied by a Mutual Recognition Agreement on quality standards, allowing containers to pass EU customs without having to be individually inspected(and vice versa).
  • The EEA/Efta Option.  This is sometimes called “The Norway Option”. EEA stands for European Economic Area and Efta for European Free Trade Association.

Effectively this is inside the “Common Market” but outside  the EU political union. Britain is free from most EU policies including Foreign & Security, Justice & Home Affairs, Economic & Monetary Union, the EU Court of Justice, the Customs Union, Common Trade Policy, Common Fisheries Policy, Common Agricultural Policy.  But we would have to observe the rules of the Single Market. Contrary to the general belief it is possible for EEA countries to impose their own restrictions on excessive inward migration of EU citizens under Articles 112 and 113 of the EEA agreement.

Some 80% of EU regulation on trade is now adopted from global bodies such as the UN and WTO. EU membership keeps Britain from having a voice there. So paradoxically, EEA states, which are not EU members, have a bigger direct say on many EU regulations than EU members which are bound by the “Common Position” decided by the EU Commission.

By Googling “FLEXCIT” you can get a full description of how the EEA/Efta option might work. The short version is 48 pages. The full document is over 420 pages. The government may, of course, choose to combine some elements of these three listed options. Things are more complicated than the sloganeering of the referendum suggested but, given careful thought and steady purpose, there is not really anything to fear.