Summer break?

Our Parliament has stated its summer recess. After the dramatic events following the publication of the Government’s Brexit White Paper, no doubt most MPs will be glad to get away from Westminster for a few weeks.

It is unlikely to be much of a summer break, particularly for Tory MPs who are likely to have an uncomfortable time in their constituencies. Conservative Home noted that support for Mrs May’s Brexit plan, a mere 33% initially, has actually fallen subsequently – to a mere 29%.

Brexit- supporting MPs are angry and at least one of them has turned his fire on one of the worst offenders – Olly Robbins, Mrs May’s current Brexit advisor.  “You shafted David Davis’ White Paper, didn’t you?” said an angry John Whittingdale.  However brilliant Davis’ alternative paper may or may not have been, it does seem very odd that his team spent months working on it only for May and Robbins to produce something different behind their backs. Not content with humiliating Davis, Mrs May has now sidelined his successor, Dominic Raab who, in spite of being called the Brexit Secretary, will in effect be Mrs May’s deputy. She intends to lead the negotiations herself, no doubt with the odious Robbins by her side.

Of course, there are huge obstacles facing Mrs May’s proposals as well. Our colleague Brian Mooney has called it ” A work that’s already scrap”. The parliamentary arithmetic is loaded against it. Even  Mrs May wouldn’t dare rely on Labour votes to see it pass.

It would take a brave person to predict what sort of Brexit we will end up with. Mrs May has made our final payment t the EU unconditional. We will have to cough up £39 billion come what may. That much is certain. Virtually nothing else is.

Readers who have taken Edward Spalton’s advice and read the COM(2018) 556 final document produced by the European Commission will note that agreement on the transitional terms is conditional on a full withdrawal agreement being agreed. “There might be a transition period” says the Commission, but on the other hand, there might not – and we have to hope that there won’t be. All the hullaballoo about the Chequers text has diverted attention to the damaging “vassal state”  period into which we would  be locked for 21 months, with our fishing industry struck a critical blow from which it will be difficult to recover.

It is not too late for the transitional agreement along with the proposed ongoing defence cooperation with the EU to be scuppered. It is not too late for us to part company with the European Arrest Warrant. It looks like we will be kicked out of the Galileo space programme come what may, according to the Commission document. Given that its long term goal is to track every road vehicle in the EU,  this is a small crumb of comfort in these uncertain times.

Of course, Mrs May could face a leadership challenge, but would it be successful? At the moment, it is hard to say, but there is no reason to believe that the White Paper is the final word. there is still everything to play for. Unfortunately, while many of us remain hopeful that  a better escape package will be produced and the Chequers plan will indeed, as Brian Mooney suggests, be “scrap”, none of this is of any help to businesses trying to prepare for life after Brexit. If the government is still a long way off producing a viable exit plan, it is even further off being able to tell business how this plan will affect them.

To end this summary on a more positive note, readers may enjoy this clip of Labour MP Caroline Flint rubbishing the calls for a second referendum. “I will never support that” she says. “If we’re going to have a second referendum, why not a third? or a fourth?”   She also claims that were a second referendum to be held, it would likely result in the country voting more emphatically to leave.  She confirms what we have been picking up from visiting Parliament- namely, whichever way people voted in 2016, the message MPs are getting is simply “A decision was made. Get on with it”.

Let us hope that someone does – and preferably someone other than the deadly duo of May and Robbins

The EFTA/EEA Solution to the Current BREXIT Impasse

Implications of current Brexit negotiations failing

Mrs May’s government, without any practical Brexit plan, has created a mess and time is running out. Without a practical solution to the soft border in Ireland there can be no transition deal and, therefore, no withdrawal agreement.   Without one, the UK would leave the European Union (EU) on 29th March 2019 with no arrangements in place to continue trading with the Single Market (Internal Market or wider European Economic Area, EEA).  Such a situation (often called ‘falling off a cliff edge’) would be hugely disruptive to the existing highly integrated trade with the EEA and would impact the wider UK economy.

Government Proposals lead to Brexit in Name Only

However, should the government succeed in getting the EU to accept its proposed solution(s) to the Irish border and to wider trade with the EU, the outcome is likely to be Brexit in name only. Worse, the UK would become firstly a powerless temporary vassal state and then a permanent one under increasingly arduous EU imposed conditions, such as sacrificing the UK fishing industry, surrendering UK defence and defence procurement to the EU, paying substantial amounts into the EU budget, accepting a continuation of free movement (uncontrolled EU immigration, with extra rights for EU citizens), unconditional compliance with all existing and future EU laws, remaining under the EU’s European Court of Justice (ECJ).

Mrs May’s approach to Brexit is the Problem

Yet this unwanted situation is of Mrs May’s making by her seriously reckless decision, first mentioned in her Lancaster House speech, 17th January 2017, to leave the Single Market on Brexit day. Whilst leaving may be desirable in the long term, it is hardly practical now and her proposed solutions of mutual recognition of standards and a free trade agreement look increasingly unrealistic and counter-productive.  Her wishful thinking, dithering and failure to understand how the EU and EEA works, have only made matters worse.

A simple EFTA/EEA Solution to Mrs May’s Brexit Problems

Many of the problems Mrs May has created can be solved by remaining within the Single Market (even temporarily) via a different, more flexible route.  Such a route is available if we re-join The European Free Trade Association, EFTA, assuming they would have us back.  Whilst this cannot be taken for granted, it would be advantageous to the existing EFTA/EEA countries (Norway, Iceland, Liechtenstein – Switzerland is outside the EEA) giving the overall grouping greater robustness.  The EU has hinted that it could accept this as an option to achieve an orderly Brexit.

Criticisms of EFTA/EEA (aka The Norway Option) can often be resolved through research using original or reputable sources via the internet (e.g. here).  However, there will always remain the opportunity for the EFTA/EEA option or any other suggestions to be misrepresented by the unscrupulous or ignorant.

EFTA is a Trading Association without political aspirations

Originally set up by, among various countries, the UK, EFTA is not a stepping stone to EU membership or even to associate membership of the EU. EFTA existed before the creation of the Single Market. As its name suggests, it was  – and indeed is – purely a trading bloc. However, EFTA countries can participate in the Single Market on the basis of the EEA Agreement.

EEA Agreement is Flexible and Customisable

The basic EEA Agreement  is amended from time to time (through additional Annexes and Protocols) as it applies to each of the EFTA members. It is not a ‘one size fits all’ approach and is customised to fit each’s requirements.  Thus we could get a bespoke agreement by taking and amending the existing ‘off the self’ versions.

Control of EU Immigration into the UK

Article 112 (the Safeguard Measures) of the EEA Agreement provides a mechanism for the UK unilaterally to control immigration from the EU. Similar wording has already been copied by the EU into their draft Withdrawal Agreement (Article 13, Protocols relating to Northern Ireland) effectively allowing the EU unilaterally to limit immigration into the EU from the UK.

Agriculture and Fishing are outside the EEA

The EU’s Common Fisheries Policy and the Common Agricultural Policy are excluded from the EEA Agreement. We could therefore regain control of our Exclusive Economic Zone  next March without having to ask the EU.

Laws relevant to trade in the EEA

The EU acquis (or body of laws) relevant to trade comprises about 25% of the total EU acquis and in 90% of cases reportedly originates from higher (global) bodies.  We would need to comply anyway in order to trade elsewhere, unless we chose to leave organisations such as the World Trade Organisation.  The rest of the EU acquis does not apply unless we choose to adopt any which we could modify as required at a later date.

Almost  frictionless trade within the EEA

It is membership of the Single Market (or wider EEA) and not membership of a customs union that delivers nearly frictionless trade with the EU for countries like Norway. This is because each member is working to common standards and processes (harmonised) for product, production, market surveillance and conformity assessment under a centralised system of bureaucratic control by the EU.  The EU’s Guide to the implementation of directives based on the New Approach and the Global Approach explains what applies to many products.

External Border Controls protect the EEA

By contrast, accessing the EEA from outside its external borders involves complying with regulations, inspections and testing, processes and procedures, external tariffs, customs checks/clearance, VAT etc. intended for dealing with ‘third countries’.   These provisions, effectively border controls, also manage safety and other unacceptable risks to EEA members, consumers and enterprises involved with ‘imports’ and are sometimes protectionist.

There also need to be arrangements to control diseases and parasites etc. in imported livestock, products, plants, packaging etc. from ‘third’ countries.  According to EU law, products of animal origin (meat and meat products) imported into the EU must be inspected (sanitary checks) at Border Inspection Posts (BIPs). For products of plant origin (for plants and plant-derived foods) phytosanitary checks are required at Community Entry Points (CEPs, Designated Ports of Entry). It is a nightmare and this is what we would face next March if Mrs May persists in her stubbornness.

EEA Membership allows participation in critical trade related decision making

A mechanism exists for EFTA members to participate in shaping decisions by the EU, which is described here.  Unlike EU Member States, EFTA members also freely participate in global bodies helping to form standards and practices before these are passed down to the EU for implementation.

Free Trade Agreements

Both EFTA as a whole and individual EFTA countries are free to make their own trade agreements, unlike Member States of the EU or of its customs union.  EFTA countries do not operate common external tariffs.

EEA Membership is Free

For EFTA countries, EEA membership is effectively free although they do ‘voluntarily’ contribute to the specific agencies they participate in and to development grants. We could pick and choose.

Judicial Oversight of EFTA/EEA by the EFTA Court

The EFTA Court is independent of the ECJ although it can take into consideration or follow ECJ rulings. It does not take precedence over national courts enabling the UK, if we so choose, to ignore any of its judgments.  The European Commission could object but we could then ignore it too.

Quitting the EEA at any time

Article 127 of the EEA Agreement covers the process which involves giving 12 months’ notice.  Unlike leaving the EU, no payments and negotiations are required.

Further Information

The EFTA/EEA option and Brexit debate in general has often suffered from misunderstandings or errors and mischievous misrepresentation effectively inhibiting rational discussion.  The following are useful sources of research information: Brexit Reset, Eureferendum.com, various posts on Campaign for an Independent Britain and affiliates.  For consequences of a No Deal situation, see the EU’s Notices to Stakeholders under Brexit preparedness.

The Way Ahead to Independent Sovereign Nation Trading

The EFTA/EEA route could salvage the faltering Brexit process, at least as an interim measure. It would facilitate leaving the political, centralised, anti-democratic construct of the EU whilst still retaining (and expanding) almost frictionless trade.  It could also provide a springboard for a highly successful trading relationship for independent sovereign nations in Europe.

A year to go and we’re nowhere near a satisfactory Brexit

A significant milestone which most people would otherwise probably have failed to have noticed has been widely reported in the media today.

The picture above depicts how I had been imagining the mood will be in exactly a year’s time – on March 29th 2019 when the two-year Article 50 period expires and we finally leave the EU. As things stand, however, it will be Brexit in name only, so most certainly not be a cause for celebration. Ahead lies a minimum of 21 months as a vassal state, where we will continue to suffer all the frustrations of being in the EU without any representation in the EU institutions.

Looking back to that incredible morning of 24th June 2016 when the referendum result was announced, not even the worst pessimist could have predicted the complete shambles which the Government has made of the Brexit negotiations. Without any clear idea of what sort of final deal they sought and outsmarted at every turn by Michel Barnier  and his team, Theresa May and David Davis have made concession after concession to the EU and have come up with the idea of a transitional deal as a means of buying time after realising that so many areas of detail cannot be sorted out in time for a long-term deal giving us full independence to be signed off in time to be implemented a year from today.

So we are facing a situation where our bright future has been postponed. No restrictions on immigration, no freedom from the European Court of Justice, no cut in our contribution to the  EU’s coffers and the decimation of our fishing industry. This was not what we voted for in June 2016.

The big question is why so many Tory MPs, even staunch supporters of independence, are being so quiescent in the face of what is likely to be a disaster, not just for the fishing industry, but for the country as a whole  – and thus, for their party electorally. Are they, as one report suggests, mere “paper tigers”  who “may huff and may puff, but they won’t blow the Prime Minister’s house down – however far any heads of agreement deal may be from perfection”?

Thankfully, all is not lost – yet. The divorce document has to be signed off not only by the EU but by our Parliament too and the combination of a vote forced through (ironically) by remainers giving MPs the chance to reject the final deal and Mrs May’s wafer-thin majority may save the day. For one thing, the Irish border issue, in spite of reports to the contrary, is unlikely to be solved quickly in a way that will satisfy the Democratic Unionist Party, upon whose support Mrs May depends.

Secondly, the cave-in on fishing has provoked immense anger – on a scale that appears to have taken the government aback. Michael Gove was clearly uncomfortable when he faced some awkward questions in the House of Commons and given the fishing industry’s long history of campaigning, we can be sure that we have not heard the last of this issue yet.

Furthermore, it is not too late to try a different approach. The EEA/EFTA route has its friends and also its critics among Brexit supporters. Everyone, however, must agree on two points. Firstly, that it is not the ideal long-term relationship for an independent UK to have with the EU, but secondly (and in the immediate context, far more importantly), it is better as an interim arrangement in every way than the transitional terms which the EU is offering us – and is still a viable option which could be implemented with in a year. The EEA/EFTA countries are not part of the political structure of the EU, subject only to the 25per cent or so of laws relating to the internal market, not directly subject to the ECJ but to the EFTA court which can only rule on EEA-relevant matters and does not have any formal powers of enforcement. IF we took this option, we would be outside the Common Security and Defence Policy, the so-called  “Common Area of Freedom and Justice” – especially the EAW, Europol and the Eurogendarmerie. We would also be outside the Common Agricultural Policy  and critically, our fishing industry can return to domestic control. We could also restrict immigration as Liechtenstein has done.

For those who would like some more detail on this subject, this chart was produced by Anthony Scholefield during the Referendum campaign and although showing the advantages of the EEA/EFTA route compared with EU membership, if you substitute “our vassal statehood after 29th March 2019” for “remain” would still be a pretty accurate comparison.

We believe that all is not yet lost, but the lunacy of Mrs May and Mr Davis in pursuing this terrible transitional arrangement is totally baffling given something better is on offer. The electoral consequences for the Conservatives will be enormous. The sooner and more often they hear “1846” whispered in their ears* the more likely we are to see a desperately-needed change of tack.

 

  • In 1846, a crisis over the Repeal of the Corn Laws precipitated  a crisis for Robert Peel and the Tory party. The damaging split which ensued kept the Conservatives effectively out of office for 28 years. Your author is firmly convinced that the party will face a catastrophe of equal magnitude if Brexit is botched.

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!

Transition to a permanent EU vassal state?

Unless the proposed transitional deal is blown out of the water, the United Kingdom appears to be moving inexorably towards being a permanent European Union  Vassal State. Recent speeches and other statements by Mrs May and Mr Davis point strongly to this being the most likely outcome from their handling of the Brexit (or Article 50) negotiations.  All looks good on the surface, but they do not understand how the EU works and some worrying facts emerge when you analyse what they did and did not say. .

Mr Davis, reiterating Mrs May’s decision to leave the Single Market, in his Teesport Speech of the 26th January 2018  said:

“While the aim of the implementation period is to provide certainty and continuity, we must keep sight of the fact that this is a bridge to a new future partnership.

Where, crucially, the United Kingdom is outside of the single market, and outside of the customs union.”

He then went on to say:

“We want a good Brexit for business and a good Brexit for the British people and we will deliver that on a frictionless access to the Single Market and a freedom political and an economic freedom for the future.”

Clearly there is a contradiction here – it is not possible to have frictionless access whilst being outside the Single Market (or the European Economic Area, EEA) and being a ‘third country’. Michel Barnier, the EU’s chief negotiator, has pointed this out on several occasions. For example, he said:

“A trade relationship with a country that does not belong to the European Union obviously involves frictions.”

Frictionless trade between members of the Single Market (and European Economic Area, EEA) occurs because of a common set of rules, regulations, processes or procedures, enforcement and overall EU surveillance. Accessing the EEA from outside its external borders involves complying with regulations, inspections and testing, processes and procedures, external tariffs, customs checks/clearance, VAT etc. intended for dealing with ‘third countries’.   These measures manage risks involved with ‘imports’ and sometimes are protectionist in nature.

The transition period (aka implementation period) clearly places this country into the status of a powerless EU Vassal State for 21 months after 29th March 2019 as explained here. However, if agreement on frictionless trade cannot be agreed during this period – which seems a certainty given Mr Barnier’s often repeated comments and how the EU normally treats ‘third countries’ – it will need to be extended potentially indefinitely.

Mrs May’s Davos speech on 25th January 2018 to the World Economic Forum provided the perfect audience to sell the opportunities presented by Brexit.  She could have outlined her vision, complete with objectives, timetable, planning and progress, in order to encourage her audience to invest here.  She could have addressed the principal concerns of business, for example, about market size and frictionless access to the EEA. She could have described (with specific detail) her vision for a ‘new, deep and special partnership’ with the EU which would have clarified and developed her Florence speech of 22nd September 2017.  Instead of which she focussed on artificial intelligence and making the Internet safer –  presumably her highest priorities.  Any business or political leader present, listening to and reflecting on the content could be forgiven for concluding that the UK government has nothing to offer, having already ceded control of Brexit negotiations to the EU and thus, any meaningful Brexit is not going to occur.

Artificial intelligence then is a very poor substitute for Brexit failure and even here Mrs May cannot easily offer unique government-supported opportunities for funding research and development nor can she use public sector procurement to facilitate innovation.  She can’t even protect the public sector from future Carillion fiascos. EU directives (laws) and gold-plating by her civil servants will interfere.

The transition proposals so far on offer from the EU (as explained here) are far worse than the alternative of remaining within the EEA through re-joining The European Free Trade Association (EFTA).   It is likely that the eventual transition deal (if it actually happens given  it is dependent upon Mrs May s accepting the EU’s outstanding Phase 1 conditions), will be even more onerous upon this country than already proposed.  The EU’s stance on transitional arrangements, manifested recently by the Annex to the Council Decision of 22nd May 2017 and published 29th January 2018, appears to be getting more uncompromising.  If accepted, Mrs May is likely to be forced into making further large payments into the EU’s budget, accepting continued freedom of movement of persons, taking on additional financial liabilities, remaining subject to the EU’s European Court of Justice (ECJ) and to the Common Fisheries Policy, transferring further responsibilities to the European Commission (typically defence and defence procurement, along with regulation of financial services), following the complete EU Acquis or body of existing and future law, and giving extra rights to EU citizens living here, etc..  Meanwhile, the UK will be prevented from negotiating free trade agreements around the world whilst being excluded from existing ones negotiated by the EU.

It was Mrs May’s decision to reject the EFTA/EEA option, even as a temporary measure. She first made this clear in her Lancaster House speech in January 2017.  The EFTA/EEA option allows for control of immigration through unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  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, the EEA component of the Acquis is only about trade and not political integration. Furthermore, 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.  The EFTA/EEA option was claimed to be the best choice for a Brexit economy in a recently leaked overly pessimistic draft government report EU Exit Analysis – Cross Whitehall Briefing.

Unfortunately it appears that both Mrs May and Mr Davis are well and truly out of their depth.  The Department for (not) Exiting the European Union also seem to be lacking in essential competence, and is in line to face the blame for failings in getting a successful Brexit. At best, everyone is following a political Brexit whilst ignoring practicalities.  At some stage the number of Conservative MPs who will realise that the dire situation this country is facing is of their own government’s making will reach a critical mass.  At this point, there will either be an almighty rumpus following which some quite senior heads are likely to roll or else if the government persists on its stubborn course, the electorate will punish the Conservative Party severely in the next General Election in 2022 for short-changing the British people over Brexit through their acquiescence in turning this country into a permanent EU Vassal State.

The United Kingdom as a third country

Some  people are confused about the meaning of this term with regard to our extrication from the EU and have become needlessly indignant.  It does not mean “third rate” or “Third World”.   In the EU situation  in international law, the phrase means more or less what “third party” does in an ordinary insurance policy or other legal document – but it refers to a country or state which, in this case,  is not a member of the EU or its associated organisations such as the European Economic Area (EEA).

Background

This non-membership is exactly what Mrs. May demanded in her Lancaster House speech of January 2017.  She wishes to replace our EU membership  with a completely new but unspecified “deep and special” relationship which can only come into being after we have left the EU.  The EU does not “give” us third country status.

We acquire it automatically through leaving at our own request.   Yet this seems to have come as a bit of a surprise to David Davis.

I started to take the Daily Express when it was the first national paper to advocate leaving the EU, so I was rather surprised to read this article in its edition of Wednesday 10th January which suggests either that Mr. Davis is ill-informed or that the reporter misunderstood him.

Row over EU giving UK 3rd country status

David Davis has attacked a Brussels threat to punish British business ahead of Brexit trade talks.

The Brexit Secretary has written to Theresa May raising concerns about EU planning for a “no deal” giving Britain “third country status”  in what appears to be an act of bad faith.

Mr. Davis told the Prime Minister he would urge the EU to drop the measures which would require UK firms to relocate to Europe or risk contracts being terminated in the event of no deal.

He said he had sought legal advice but the chances of a successful challenge were “low” and could be “high risk politically and financially”

But he said he would urge the European Commission’s Brexit task force to withdraw the statements in light of the deal reached last month to start trade talks. Mr. Davis said that EU agencies have issued guidance to businesses stating the UK will become a “third country” after March 2019 with no reference to a future Trade deal.

The guidance says “compliance activity” such as quality control of goods “ would need to be based in the EU or European Economic Area.

Other statements on legal services and the transport industry do not take into account a transition period or trade deal, he said.

Mr. Davis called the moves “potential breaches of the UK’s rights as (an EU) member  state” and insisted “we cannot let these actions go unchallenged “. John Longworth of Leave Means Leave added that  the EU’s negotiating team is increasingly out of step with the mood of many of the EU27 national governments who recognise the importance for their own economies  that a free trade deal is reached with the UK…..”

Meaning of Third Country Status

The Department for Exiting the EU employs some 400 highly paid specialists and the expertise of the Foreign Office and our Representation in Brussels are claimed to be world class, so it is surprising that nobody  took the trouble to  look up some elementary rules of international law on the internet and tell Mr. Davis.

oxfordindex.oup.com/view/10.0903/01/authority

Pacta tertiis nec nocunt nec prosunt – Treaties neither harm nor benefit third parties. A maxim meaning that non-parties to a treaty cannot claim benefits under it…   And, once we are out of the EU, we are no longer a party to any of its treaties.

 https://en.oxforddictionaries.com/definition/res_inter-alios-acta

Res inter alios acta – a thing done between others – to which a given person or entity was not (or is no longer) party .

 From “Third Parties and the law of treaties  – Max Planck UNYB 6 (2002)

Basic Classical Rules

 The relationship between third parties and treaties is defined by a general formula pacta tertiis nec nocunt nec prosunt (see above). This principle has been recognised in states’ practice as fundamental and its existence has never been questioned.. For states non-parties to the treaty, the treaty is res inter alios acta (see above). It has been reflected in numerous cases before the World Court. For example in the German Interests in Polish Silesia case the PCIJ *observed that “ (a) treaty only creates law as between states which are party to it; in case of doubt no rights can be deduced from it in favour of third states.

 Lord McNair, in the Law of Treaties (1961, 309 Harvard Research Article 18) ( a) a treaty may not impose obligations upon a state which is no longer party thereto….”

*Permanent Court of international Justice

The UK as a Vassal State

By  demanding a “Hard Brexit”  from March 29 2019, the government has placed itself in the position of a supplicant to the EU for a “transition” or “implementation” period so that Mrs. May’s unspecified “deep and special” relationship may be agreed without disruption of trade.

If what we have been told is correct, all existing  EU laws will continue to apply during this period and new ones could be sprung on us without our having any say at all – complete vassal status.

Conclusion

There are strong economic reasons for both sides to come  to a mutually beneficial agreement.

However there is no good reason to suppose that the EU will abolish its external frontier procedures with a newly independent UK.  If it did that, not only would it breach its own principal trading rules, but also the World Trade Organisation would be overwhelmed with complaints from other third country states.  Every other country in the world would be demanding that the EU did the same for them.