Hold on to your hats!

The terms proposed by the EU for a transitional deal, even if this had only lasted for 21 months, are totally unacceptable, as we have pointed out. Our fishing industry would be decimated. However, it seems that the government is now talking about this arrangement lasting more than 21 months.

Opposition  to any transitional agreement on these terms in growing. Mrs May recently received a letter signed by 62 Tory MPs reminding her of the “red lines” in her own Lancaster House speech. These include:-

  • Take full control of UK tariff schedules at the WTO with the power to change them without sign-off from the EU27
  • Enjoy “full regulatory autonomy” with the ability to change British laws and rules unilaterally
  • Be free to start trade negotiations immediately after leaving the EU, which may involve ensuring the UK has the power to discuss the division of the EU’s Tariff Rate Quotas with non-EU trading partners bilaterally
  • Have the freedom to negotiate and sign other trade agreements during the implementation period in line with WTO principles

There has been a much greater level of disquiet about the EU’s terms among backbenchers, as these four points (and other vital issues, such as the end of any role for the ECJ) would not be permitted, but some other MPs were bought off by the assurance that it wold only be for 21 months and then all would be well. The Cabinet meeting at Chequers today could be rather turbulent.

Now this is looking less likely, we could be entering a period of far greater political turmoil. It is hard ot predict what will happen next. Although the majority of Tory MPs supported remain, real headbangers like Anna Soubry are a small minority and most Tories know that they will face electoral oblivion if the government botches Brexit. The stakes are clearly getting higher. However, it may require some senior heads to roll if the transitional blind alley is to be averted. It is a case of holding on to your hats.

Perhaps rather ironically, the combination of the narrow margin of victory in last June’s general election and the remainer-inspired initiative to give Parliament a vote on the final deal may work in our favour. Mrs May dare not force through the transitional deal relying on Labour votes, but she looks unlikely to get it through otherwise. Hopefully, a discreet change of tack will take place to avoid what would be an unmitigated disaster for the PM.

Meanwhile, Anti-Brexit campaigners are planning a six-week blitz in the Midlands and North of England, according  to the Financial Times.  Predictably, George Soros who was neither born in this country nor lives here, is involved.  If anyone comes across such groups canvassing,   we would ask them to be polite, even though it is very tempting to behave otherwise! Thankfully, although remainiacs have been trying to subvert democracy for over 18 months now, there is little evidence of any significant shift in public opinion. As one London street newspaper vendor said recently, most people are sick of Brexit.

In these troubled times, it is encouraging that a group of pro-Brexit academics have come together. We would commend their website Briefings for Brexit to your attention and you may, in particular, enjoy reading this piece by Professor Robert Tombs of Cambridge, which points out how ill-advised the remainers are and that far from being a position of stability, EU membership exposes us to considerable uncertainty. Perhaps one should add that the uncertainty may have increased still further next week with next Sunday’s Italian General Election unlikely to usher in a government with much sympathy for the federalist vision of France’s Emmanuel Macron

Going back to the academics, these people are brave individuals, who have had to take far more flak that most of use here. They will need thick skins, says Dominic Lawson. He mentions one academic who said,  ‘I can’t come out as pro-Brexit, it would make my life impossible here.’
How sad that in many of our once great universities, the very sensible and rational idea that we should once again be self-governing seems to engender such hostility.
But then this reminds us of one important reason why many of us voted to leave the EU. If successful, it could and hopefully will be the start of a massive and long overdue shake-up  of our society, including politics, the media and our entire educational system. The latter will be a particular challenge, but it is encouraging to know that there are a few sane voices out there.

Photo by ™ Pacheco

A transition will void all international agreements

Press Release from Fishing for Leave, 20th February 2018

The implications of the transition should be of grave concern. What is proposed is not only an existential threat that could see our fishing industry culled, but a diplomatic and constitutional suicide pill the result of which would be an anathema not only to “taking back control” but to the point of a transition itself.

A transition is not part of leaving the EU under Article 50 – it is part of a new ‘transition’ treaty as both David Davis and Steve Baker have candidly admitted.  This is significant as it means we will not be party to current agreements, but the transition is a new treaty that stands alone.

The EU terms are the UK must adhere to all EU law but as we will no longer be an EU member should have no say. This is the EU sensibly safeguarding its interests – our government is doing the opposite.

The implications of Clause 14 and 15 of the transition terms have a severe impact on all international agreements the UK is party to through the EU.

They defeat the whole raison-d’etre of HM Governments for a transition – trade.  For the fishing industry it means the “transition” could void UK participation in all international fisheries agreements that we were party to as a member of the EU.

TRADE

Clause 14. During the transition period the United Kingdom will remain bound by the obligations stemming from the agreements concluded by the Union…while the United Kingdom should however no longer participate in any bodies set up by those agreements.

The intention is that the UK will still have obligations to the EU to adhere to the consequences of agreements concluded with non-EU countries in respect of the EU vs UK transitional relationship. In doing so this maintains the integrity of the EUs dominions and also appears to placate the UK position of everything continuing as is.

However, since the withdrawal agreement cannot bind non-EU countries, they will no longer have obligations to the UK as we will no longer be an official member of the EU but merely maintaining regulatory alignment in an EU vs UK deal.

The UK would only be able to be recognised within such agreements if other non-EU countries agree to continuing existing obligations in force through another agreement with the UK.

The negotiation of such an agreement between the UK and non-EU ‘third countries’ is the subject of the next transition Clause 15 which seemingly makes that an impossible contradiction.

Clause 15. Any transitional arrangements require the United Kingdom’s continued participation in the Customs Union and the Single Market (with all four freedoms) during the transition. During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union.

The UK will be unable to negotiate and sign treaties within the transitional period, even if those treaties only come into force afterward – we will only be able to begin to negotiate treaties AFTER the transition period.

This means that other non-EU nations will have no obligations to recognise the UK being party to agreements signed by the EU as the UK will no longer be an official member but also a ‘third country’ when the ‘treaties shall cease to apply’ under Article 50 and our membership terminates on the 29th March 2019.

However, the catch 22 paradox is that to obey the transition the UK will not be able to enter into any agreements with other non-EU countries to seek recognition that the UK is party to EU arrangements with those countries even if they wanted to.

THIS MEANS WE WILL BE ON WTO TERMS FOR 65% OF OUR TRADE AND UNABLE TO SIGN NEW DEALS…………………..WHICH IS THE WHOLE REASON LOCKING OURSELVES INTO THE EU WAS MEANT TO AVOID! 

In respect of fisheries this could mean any agreements the EU has signed with other coastal states would no longer be binding for the UK as we wouldn’t be officially a member only a vassal state which has agreed to maintain regulatory alignment with the CFP.

This catch 22 between Clause 14 and 15 means the UK could lose agreements on access to Norwegian and Faroese waters for our pelagic and largest whitefish vessels.

The EU can’t be any clearer that this is the case;

As part of the EU Commission document ‘Internal EU27 preparatory discussions on the framework for the future relationship: “International Agreements” 6th February 2018’ the EU makes explicit the consequences regarding international agreements concluded by the EU:

Point 13: “Following the withdrawal, the United Kingdom will no longer be covered by agreements concluded by the Union or by Member States acting on its behalf or by the Union and its Member States acting jointly”.

The EU then continues;

In principle, as a non-Member State, the UK would be able to negotiate international agreements But

  1. the bona fide application of the Withdrawal Agreement prohibits conflicting obligations
  2. duty of sincere cooperation

iii. explicit provisions in the Withdrawal Agreement: “During the transition period, the UK may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union.”

The Withdrawal Agreement can oblige the UK to respect “the obligations stemming from the agreements” However, the Withdrawal Agreement cannot guarantee the extension of the benefits from those international agreements to the UK!

IT CANNOT BE ANY CLEARER! How will the UK be party to continuing EU deals?

How will the UK be able to seek and agree recognition with other non-EU third countries?

It would be interesting to hear a proper government and DexEU response to how the UK can conclude a future “deep and special” trade deal with the EU under the transition as David Davis professes is required if Clause 15 bars us from concluding agreements… the Government tried (and miserably failed) to do so in;

HM GOVERNMENT – TECHNICAL NOTE: INTERNATIONAL AGREEMENTS DURING THE IMPLEMENTATION PERIOD – 8th February

In this document the Government asserts that

  1. …the implementation (transition) period would be based on the existing structure of EU rules and regulations. In its negotiating directives, the EU has adopted the same position. It has stated that “the Union acquis should apply to and in the United Kingdom [during the implementation period] as if it were a Member State”. This is echoed in the Commission’s paper on Transitional Arrangements in the Withdrawal Agreement, which states that EU law “shall be binding upon and applicable in the United Kingdom” during the implementation period.

EU law and agreements are binding on the UK as agreed in a transition treaty between the UK and EU. Such a treaty cannot bind the other non-EU ‘third country’ nations who the EU has an agreement with.

  1. This would be achieved by agreement of the parties to interpret relevant terms in these international agreements, such as “European Union” or “EU Member State”, to include the UK.
  2. Such an approach could be used both to ensure the UK’s continued participation in mixed EU third country agreements… At present the UK as an EU Member State is bound by obligations, and benefits from the rights… It is proposed, with the agreement of relevant third countries, that those rights and obligations continue to apply to the UK on the EU side of the agreements for the duration of the implementation period.

The UK can’t sign agreements with other parties as Clause 15 of the Transition terms forbid the UK from entering any agreements, deals or treaties with other non-EU ‘third countries’. In addition to this the words ‘proposed’, ‘could’…… would…. should….. mean that the position the government is digging itself into relies on the EU and other countries benevolently recognising the UK to be party to EU agreements.

Rather than leaving cleanly and being free to operate as an independent sovereign nation the transition (by the governments own admission) digs this country into a subservient position with no guarantee of being party to any international agreements through the EU.

The position the government is digging itself into relies on the EU and other countries benevolently recognising the UK to be party to EU agreements.

Rather than leaving cleanly and being free to operate as an independent sovereign nation the transition (by the governments own admission) digs this country into a subservient position with no guarantee of being party to any international agreements through the EU.

WHAT THIS MEANS FOR THE FISHING INDUSTRY

In respect of fisheries all the Clauses above means that although the UK will follow the CFP as a vassal state (through the terms of a transition treaty between the EU and UK) countries such as Norway, Faroe and Iceland have no obligation to recognise the UK being party to EU arrangements and even if they wanted to Clause 15 means the UK can’t sign any deal as an EU satellite.

Yet because the UK will have submitted to an EU vs UK “transition” agreement we will have agreed to re-obey the CFP where we re-agree to give the EU our fishing waters and resources to divide out as the EU see’s fit through relative stability and agreements it reaches internationally.

This would mean the UK would still have the EU catching 60% of the resources from our waters and the EU would be able to use UK whitefish and pelagic quota as negotiating capital but we would be unable to take back control and then use our position of strength as a new independent coastal state to make our own mutually beneficial agreements with our Nordic neighbours.

The UK would continue to lose out in the CFP but also lose access to Norwegian and Faroese waters for the most powerful catchers in the UK fleet. We would lose twice rather than gain twice by walking away. We would be hit 4 times over in a transition where we loose international agreements but are still in the CFP;

We would see some of the most powerful catchers in the UK Whitefish fleet displaced from Faroese and Norwegian sector waters.

 These vessels would be back into an already stretched UK sector with the EU still pocketing half of our whitefish resources.

It would see our pelagic fleet lose access to Norwegian waters for mackerel and atlanto-scandiv herring

The EU can further exploit UK quota (especially pelagic) to make deals to benefit the EU27 fleet due to our compliance with the CFP.

To stick the final nail in the coffin a continuation of the quota system where fishermen have to discard in order to find the species their quota allows them to keep conjoined with a fully enforced discard ban can be used by the EU to finish the UK fleet.

Under the discard ban rather than address the cause of the discard problem, that a quota system does not work in mixed fisheries, the symptom of discards is banned. Under the discard ban a vessel must stop fishing when it exhausts its smallest quota allocation – these “choke species” will bankrupt 60% of the UK fleet as detailed by the governments own figures through Seafish.

This would destroy our catching capacity and allowing the EU to claim the “surplus” of our resources we would no longer be able to catch under terms of UNCLOS Article 62.2 due to such a culling of our fleet.

Signing up to a transition on will see the ruination of what is left of the UK fishing industry when Brexit should be its salvation. Another 2 years of the CFP and a continuation of the quota system will see our fishing industry become yet another British industry consigned to museum and memory.

CONCLUSION

Under the auspices of this proposed transition “deal” (more an edict to obey) the UK will be on WTO with the rest of the world, unable to conclude deals with the rest of the world until after the transition and will be locked into maintaining regulatory alignment whilst obeying the entire Acquis (with continued freedom of movement).

The UK will be trapped in the CFP where our fishing industry will be culled to make way for the EU fleet whilst also losing any access to Faroe and Norway which will diminish fishing opportunities further.

It is nearly unbelievable that the political establishment could contemplate locking the 5th most powerful nation in the world into such a subservient position especially against the expressed wish of the British people to leave the EU in its entirety as voted for in the biggest vote in British history.

A TRANSITION MEANS BRITISH FISHERMEN ARE STARING DOWN THE BARREL OF A GUN!

The EU’s potential lifeline for Mrs May’s Brexit

The European Union (EU’s) Brexit negotiators from Mr Barnier (chief negotiator) downwards must have long since realised that Mrs May, Mr Davis and the Department for (not) Exiting the European Union are incapable of serious negotiations. Meaningful progress towards leaving the EU in an orderly way including suitable agreements, arrangements and infrastructure is practically non-existent; there is a mountain of detail yet to climb. What, then, can the EU do to rescue the process and Mrs May, since Mr Barnier has previously stated on more than one occasion that he can’t negotiate with himself?

The view from Brussels must be of a weak prime minister leading a fractious, divided party and government, who has a poor grasp of detail and instead relies on spin, wishful thinking and dithering.  Even the output from the Department for (not) Exiting the European Union is poor and vague to the extent of being practically useless. Their website, where comprehensive information and practical guidance on Brexit, and hyperlinks to further sources of information should be available, is more of a case study in superficiality, grandstanding and self-aggrandisement.  There is not even a link to the European Commission’s website on Brexit preparedness.  So whose job is it to help prepare the UK for Mrs May’s decision to leave the Single Market and – by extension – the European Economic Area, EEA?

By contrast, the output from the European Commission, setting out its increasingly uncompromising position, is clear, focused and comprehensive.  Right from the beginning, the EU has been making the running.  Its dedicated website illustrates the impressive (or terrifying) detail of their ‘public’ vision of where Mrs May and Mr Davis’s Brexit is heading and the implications, which appear to look like ‘falling off a cliff edge’ to many UK businesses.  Its advice to stakeholders (available here) repeatedly spell out, in as much detail as possible, what will undoubtedly happen across a wide range of activities and policy areas when the UK becomes a ‘third’ country after leaving the EU (on 29th March 2019) and the EEA.  It is quite likely EU officials often frustratingly ponder the question, “Do our British counterparts and their political leaders understand any of this, and do they actually care what it all means?”  The problem for our team of negotiators is that they do not seem to know and understand EU laws and regulations, their rationale and implementation. This is essential if they are to develop appropriate strategies, negotiating positions and challenges to the EU’s tough, logical and systematic stance.

From the EU’s perspective they have helpfully agreed to a transition period limited to 21 months which is necessary to give Mrs May time to negotiate a free trade agreement. In reality, much longer is probably needed. However, the EU’s terms for this transition period  – which have still not been agreed – would be very unpopular in the UK and thus may never be accepted given Mrs May’s weak position in Parliament.  The EU’s terms would make the UK into a temporary or maybe even permanent EU Vassal State where Brexit means Brexit in name only.  Crashing out of the EU without transition arrangements and not having any form of mitigation of the consequences of ‘third’ country status (the “cliff edge”, in other words) is becoming increasingly likely.

The European Commission is well aware of political developments in the UK and of the consequences of no deal scenarios (given the detail on their website). Its negotiators also have to confront the contradictions in Mrs May’s position.  Frictionless trade (as required by Mrs May and Mr Davis) is not possible as a ‘third’ country outside the Single Market (and the EEA).  Time is running out for businesses both here and in the remaining 27 Member States of the EU to adjust.  Time is also impractically short to put in place new facilities and legislative frameworks needed by a ‘third’ country such as border inspection points, designated entry points and the recruitment and training of staff.  What can the EU do, if it is so disposed or there is some behind-the-scenes collusion going on, to extend Mrs May a lifeline and avoid the ‘cliff edge’?

Any EU-sponsored lifeline needs to protect their interests. It has to operate within the EU’s objectives, legal framework, and established practices. It mustn’t ‘rock their boat’ or set any potentially disadvantageous precedent. It also needs to be sellable across a wide range of opinion in the UK, addressing as far as possible rational fears and aspirations.

The only viable option for an EU-sponsored lifeline is to facilitate the UK re-joining the European Free Trade Association (EFTA) and use this as a basis for retaining membership of the EEA for at least the transition period. It appears that the European Commission may be seriously evaluating the EFTA/EEA route for transitional arrangements for the UK,  as noted by an EFTA Court judge (Mr Carl Baudenbacher) giving evidence to the Commons Committee for Exiting the EU on 7th February 2018 and reported in the Telegraph on-line.

The EFTA/EEA option is not perfect, but as a holding position while something better is negotiated, it is much better than the transitional deal currently on offer. Hard Brexiteers could be won over by the facility to control immigration through unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  Further, the EFTA route to EEA membership gives 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  in other words, issues relating to trade. And EFTA members can 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 also gives us full control of fishing in our Exclusive Economic Zone.  Those worried about the economic effects of the ‘cliff edge’ could be won over because the EFTA/EEA option prevents this allowing practically frictionless trade to continue. The EEA agreement (for EFTA members) can be adapted to suit their interests.  Thus the UK (within EFTA) could get a customised version.

We cannot know what the European Commission is covertly doing and how far its efforts, if any, have progressed to save Mrs May, the UK and the EU from her folly.  However, given the efforts it has visibly extended to help enterprises both here and in the 27 remaining Member States to understand and adapt to the implications if Mrs May does not change her decision to leave the Single Market, nobody knows better the potential disaster she is determined to inflict and how it can be avoided.

Photo by thaddselden

Mrs May – trying to face both ways

Like the Roman god Janus, Our Prime Minister, it seems, is trying to face both ways at once. On the one hand, she has been kicking out against the unacceptable terms which the EU  has set for any transitional agreement while on the other, she seems keen to capitulate on important areas such as criminal justice.

Michel Barnier, the EU’s chief negotiator recently stated that agreement on a Brexit transition was “not a given” and with good reason. Theresa May, having read the EU’s terms has fought back, insisting that we must have greater freedom than the EU wants to allow us after Brexit.  She apparently intends to oppose the EU’s terms for citizen’s rights and any thought of us being a passive recipient of EU law but with no say in its formulation. The terms are so harsh, as we have stated, that it would have been unacceptable for Mrs May to have rolled over. Already there is much backbench disquiet over the EU’s proposals. Hopefully all MPs will have read the document produced by the European Commission dated 7th February and in particular, the chilling words in the first paragraph of Page 5:- “For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament.

Of course, Mrs May presides over a split cabinet. Our friends in Fishing for Leave recently commented on the struggles which Michael Gove has faced merely for wanting the UK to take control of its fishing policy after Brexit. That such a battle even needed to be fought is a cause for concern.

Recalcitrant cabinet members cannot, however, take the blame for Mrs May’s proposed speech in Munich next Saturday where she will give a speech including a  declaration that the UK will continue to participate in the European Arrest Warrant as well as retaining its Europol membership.  Mind you, like much of Mrs May’s Brexit strategy, this may well amount to wishful thinking as it’s not up to us whether we remain participants in these two schemes. Last November, Michel Barnier said that we would be ejected from Europol as it was only open to EU member states. Our ejection was the “logical consequence of the sovereign choice made by the British.” Unlike our team. M. Barnier is not known for changing his stance on key issues, so Mrs May’s speech next Saturday may turn out to be  empty rhetoric.

Indeed, we hope it is so for otherwise, she will face yet more fully-deserved criticism from her MPs. Jacob Rees-Mogg, first off the mark as usual, has reiterated his long-standing opposition to any further UK involvement with this flawed scheme. Regular visitors to this website will be in no doubt about the Campaign for an Indepndent Britain’s opposition to any ongoing participation in the EAW, Europol or the EU Gendarmerie – and we will continue to campaign on this issue if we are not pre-empted by M. Barnier rendering our efforts unnecessary. We fail to understand why Mrs May, Amber Rudd or anyone else wants to keep us locked into our current unsatisfactory relationship with the deeply flawed inquisitorial criminal justice systems of most EU member states.

On a different note, readers will be familiar with our reporting of the pathetic behaviour of the remoaners. It  seems that a small minority of them have touched a new low. At least six major backers of the Leave campaign have received identical death threats. The wording is quite chilling:- “You have stoked the fires of Brexit and led us to this moment. You can no longer be tolerated. We are coming for you. We are going to kill you.” The group sending these letters calls itself “the Real 48 per cent” and has also targeted Cabinet minister Andrea Leadsom.

We would be the first to point out that the vast majority of remain voters, including most of those who sincerely believe that we should remain in the EU, would not remotely condone this sort of intimidation. Indeed, this shadowy group’s title is misleading in the extreme. They only speak for a minute fraction of the 48% of voters who supported remain.  The reality is that most voters on both sides of the debate actually care very little about Brexit any more.  As one writer put it, most people just wish that, as an issue, it would just go away.

So indeed would we, but not until we have achieved full independence – and this includes freedom from the EAW and Europol, full control over who fishes in our Exclusive Economic Zone and a relationship with the EU which is far looser and completely free of the subservience of the proposed transitional agreement.

Michael Gove’s cabinet fishing battle

After the recent Brexit cabinet meetings it has been disclosed that Secretary of State Michael Gove had to “battle” to ensure cabinet agreement that Britain would control setting of fishing limits when Britain’s membership terminates on the 29th March 2019.

 Fishing for Leave welcomed Mr Gove’s attempts but said it is “shameful” that there had to be a “battle” with cabinet Remainers over fishing, given it is widely perceived as not only symbolic, but also an issue where the Conservatives have to exorcise the actions of Ted heath.

 Fishing for Leave’s Alan Hastings said; “We give a cautionary “Well Done” to Michael Gove! This now needs to be seen through if he and other parliamentarians want to be heroes instead of hounded!”

“We will irrefutably be independent state as of March 2019 with an automatic return of sovereignty over OUR waters & resources as we leave the CFP. Therefore, there is no need and fishing shouldn’t be given away again to be part of any type of ‘transition’ or ‘3rd party’ deal that see’s us bound into the CFP in anyway shape nor form”.

“Some arrangement where Britain is allowed to meekly speak from the back of a room in Brussels could only be a sell-out not a victory”.

 “Avoiding such a situation by not having a “transition” where we are a vassal state, will see Britain in the same position as Norway, Iceland and Faroe and the EU will have to seek arrangements to be allowed to continue to fish our waters and resources on an equal barter basis”.

Fishing for Leave said they are concerned that there is now a concerted elitist establishment campaign to thwart Brexit to name only.

Alan Concluded “It’s about time Brexiteers “take back control” to make sure we do really crack on an prepare to leave the EU properly – fishing is a key symbolic battle with a huge prize to be won for coastal communities and constituencies – a ‘transition’ would snatch this which is in touching distance as a beacon of success for all concerned”.

See also this article.

Lord David Owen: Here’s how to stop the EU yelling “heel” and prosper after Brexit

This piece first appeared in the Sunday Times and was also posted on Lord Owen’s personal website. It is used with full permission of the author.

A vital Brexit issue will have to be resolved in the next six to eight weeks. Are we to be thrust into political limbo after leaving the European Union next year or will we assert democratic control through parliament, a core reason for many voting to leave the EU?

The guidelines from the other 27 EU heads of government, published last month, called for any transitional arrangement between the UK leaving the EU on March 29, 2019 and the end of December 2020 to be “clearly defined and precisely limited in time”. It went on to say any EU legislation would have to apply to the UK under the competence of the European Court of Justice (ECJ), and that the UK would participate in the customs union and the single market.

We have already seen the peremptory way the EU-UK agreement document published in phase one of the negotiations was brushed aside a fortnight ago, when a Brussels source spoke bluntly: “The deal in December did specify March 2019 for [ending] free movement rights. That was then.” Now free movement extends throughout the transition. The European parliament’s Brexit co-ordinator says “it will be whole acquis [the term for the EU’s body of laws] and nothing else”. He says MEPs would accept a longer transition from 21 months up to 36 months.

What all this demonstrates is that, under article 50, the EU negotiators see themselves as prisoners to agreement from any of the 27 member states. Donald Tusk, president of the European Council, made this crystal clear over Ireland. Now objections from former east European countries have moved the goalposts to the UK’s detriment. We are on notice that the next problem will be Gibraltar. This pattern will continue in other areas until we have more leverage in negotiations. The UK has already shaken hands on shelling out billions of pounds during the transition and we talk in parliament of no taxation without representation. Yet that is exactly what we are going to see more of during our period in limbo with no vote.

The think tank Open Europe, an objective commentator, puts the figure at approaching €60bn. As a Brexiteer, I fully accept that the UK would make payments to the EU budget during our transition, as all non-EU members of the European Economic Area (EEA) already do. However, like Norway, we would make extra payments if there were a successful free trade agreement. Lord Kerr, who as a diplomat designed article 50, told the House of Lords: “We will come to heel in the end, probably quite quickly, because it is very important to avoid the cliff edge next year. We will not avoid it, but we will postpone it.” That sums it all up. This government is coming to heel and we had better realise it now.

We could effectively avoid both these cliff edges — an agreement on leaving the EU and on free trade — if the European Council’s guidelines for the “political limbo” period allowed for the UK to participate inside the single market as a non-EU member of the EEA. For the past 18 months, I have quietly tried to
convince the prime minister that this is the best existing democratic framework for us to be within for the transition period. It does not mean exercising the same powers as are open to the other three members — Norway, Iceland and Liechtenstein — and we would be accepting the European Council’s demand for an absolutist status quo standstill, but we would not be in limbo.

We would have automatic EEA consultation rights on EU legislation and would not be under the ECJ, but the EEA-Efta (European Free Trade Association) court and the EEA governance pillar. Professor Carl Baudenbacher, a judge of the Efta court, giving evidence in the Lords, indicated that the EEA/Efta option for the UK’s transition period is feasible, even given the short timescale.

I have no doubt whatever that a transition predominantly via the EEA would, quite manifestly, be better for all concerned. A domestic advantage is it would curb any legal action over the EEA agreement that might be in prospect. A court case in November 2016 claimed that the UK had a legal right to remain in the EEA, despite ceasing to be a member of the EU, until parliament voted otherwise. This was not accepted by the High Court, which ruled that the case was being brought too early for it to adjudicate. If the UK government does not give the year’s statutory notice of leaving the EEA in March, and relies on automatic exit in March 2019, we could see the lawfulness of the government’s conduct being challenged in UK courts.

Despite constant warnings, the government has hidden behind a longstanding diverence of interpretation on whether, on leaving the EU, a country ceases to be a contracting party to the EEA agreement. The fact is the UK government— not the EU — signed the relevant documents to enter the agreement. A government that was serious about negotiations and acquiring more leverage would have no hesitation at all in testing this case as a matter of international law by the Vienna convention and where the ECJ is not the final authority. Nevertheless, that is history. Now if the EU-UK withdrawal agreement contained a few technical amendments, the UK could set aside all legal arguments by staying in the EEA during the transition period.

The details will soon emerge where it will be clear that the EU accepts the EEA agreement continues to apply during the limbo period but the UK is not allowed to participate. The EEA option I am arguing for — for the duration of the transition only — is a mixture of bespoke and off-the-shelf. It cannot become a
permanent mechanism for leaving the EU, as many Brexiteers feared might happen. It is being advocated as a good-faith response to the European Council’s guidelines. It would help fill in the detail of how the UK government will approach the transition to achieve its aim of a bold and ambitious free trade agreement. Having the greatest possible tarie and barrier-free trade with our neighbours is an achievable ambition, as well as negotiating our own trade agreements around the world on leaving the EEA.

Few want a hard Brexit, but to avoid it the UK needs to put forward a reasoned democratic arrangement for handling the transition. Any proposed limbo status is unacceptable. The UK should insist on full participation and full rights under this agreement, including, subject to the consent of its non-EU parties, the ability to participate in its EEA-Efta governance pillar, free of direct ECJ and European Commission supervision. For EU members, an EEA transition follows precedent in using existing democratic machinery and treaties. It could hopefully unite all shades of “leave” opinion, and attract some former remainers who are vocal over continuing in the single market outside the EU for the transition. It is high time we came closer together in parliament as we embark on this national endeavour.

Lord Owen was the Labour foreign secretary from 1977 to 1979 and later led the Social Democratic Party