An Irish view on the current state of Brexit

By Anthony Coughlan

 

Dear British Friends,

May I send you for your information a consensus assessment on the current EU/UK negotiations by a group of Irish lawyers and economists who are sympathetic to Brexit that has been convened by the undersigned.

We can now begin to see the outline of what might happen in the UK/EU negotiations. We see events unfolding broadly as follows:-

(a) The UK and the EU reach an agreement (including about the divorce bill) that gives the UK access to the single market while allowing the UK to leave the customs union and the jurisdiction of the ECJ and to control its borders regarding free movement of people… NO CHANCE.

(b) The talks break down and are abandoned with the UK and the EU going their separate ways next March … UNLIKELY

(c) Agreement is reached at a Heads of Government summit in early 2019 that meets the UK’s basic requirements, including about the divorce bill and access to the single market but involves free movement of people continuing in practice if not in theory … UNLIKELY

(d) The House of  Commons overrules the Brexit vote and the UK abandons Brexit … UNLIKELY BUT POSSIBLE 

(e) – (1) Following the refusal  of the House of  Commons to overturn the Brexit vote, there is a second summit in Brussels and agreement is reached broadly along the lines of (c )… UNLIKELY

(e) – (2) Following the refusal of  the House of Commons to overturn the Brexit vote, the UK accepts tough terms in a  bitter summit that restores the UK’s independence but on economic terms that are difficult and that will require the British to dig deep to swallow …. LIKELY

We do not believe that (c) will be the outcome as the EU is banking on (d), as is Irish Taoiseach Leo Varadkar and the Irish Establishment generally, so it would be irrational of them to make any concessions ahead of (e) night.

It is not in the interest of the EU Commission negotiating team to concede anything until (d) is tested to destruction in the House of Commons and elsewhere.  If (d) is indeed the outcome it will be a great victory for the Euro-federalists/career federalists but the political situation in Britain will become highly unstable.

Scenario (d) has become more likely as Jeremy Corbyn and his colleagues have sniffed the possibility that Labour might get into office following a general election if Mrs May’s Government can be defeated on Brexit in the House of Commons

The Remainer interest in the UK is increasingly determined to reverse Brexit. Tony Blair’s involvement was to be expected but one would have expected John Major,  as someone who said “No” to the euro, to support an agreed UK position based on the democratic decision of the British people in the 2016 referendum.  One would have expected him to recognize that the EU is not as strong as it believes itself, and portrays itself, to be and that a united United Kingdom could secure an adequate deal. However, for whatever reason (perhaps City pressure) he has joined the Remainer interest.

Clearly, behind the scenes, the British Establishment, notably the City but also the media, has been bringing very, very heavy pressure to bear on decision-makers to abandon Brexit. The British Government is reluctant to have a second referendum – such a proposal might get through Parliament but would split the Tory party probably permanently, but that is less important to the Remainer interest than reversing Brexit.

They are reluctant not only because they might lose a second referendum but because it would put Britain into the same category as Ireland so far as EU bullying is concerned.

Their second option would be a general election but that could  return Corbyn. So every effort will be made to reverse Brexit through the House of Commons. That makes Corbyn the pivotal figure in the coming period. It is also the reason why in Ireland Sinn Féin is coming under pressure from the Irish Establishment to reverse its abstentionist policy and attend at Westminster and vote against Mrs May and the DUP on Brexit.

UK democrats who accept the British people’s referendum vote need to know who the key players are in the drive to reverse Brexit. They are the European Commission, the Irish Government and Establishment, and the British Remainers.

The Commission opposes Brexit because it could well mean the end of the … EU Commission. The Irish Government and Establishment oppose it because it throws into sharp relief the decision of the Irish State to reject two solemn constitutional referenda on EU issues and Irish policy at present is being made entirely by career federalists.  And the British Remainers oppose Brexit because some of them have lost their nerve while others have contempt for democracy.

Brexiteers  need to be clear and blunt about who is trying to reverse Brexit and why. It may get rough and nasty but they have no other choice. They need to ask why people like John Major have failed to see how weak the EU is and why some Remainers, who are democrats but who have lost their nerve, have failed to see that, other than the three groups trying to reverse Brexit, the rest of the EU – namely the Governments of the Member States apart than Ireland and the media and opinion formers in those Member States – have accepted Brexit and would be quite happy to see a reasonable deal being done.

It is our view that it will only be after D-Day has passed next March and Brexit has legally proceeded – unless is has been reversed by the House of Common before then – that a  UK/EU deal will be done.

At some point, the Member States on the Continent are bound to call time on the Ireland issue, whose significance has been grossly exaggerated. Their embassies in Dublin will be telling them that North/South trade within Ireland is tiny by comparison with Republic/British trade and minute in comparison with EU trade as a whole.

Their Dublin embassies will also be telling them that the UK’s proposal to treat most Irish cross-border North-South trade, which is small and local, as something essentially to be finessed by trusted-trader and associated arrangements, makes every sense.

Their embassies will also be telling them that the British and Irish Governments should do a deal on cross-border trade so that it is taken off the table as a problem. Such a deal could be done.

Their embassies will be telling them that the Northern Ireland is, increasingly obviously, being used in an attempt to reverse Brexit and that the Continental Member States should not stand for that any longer.

All the weeping and gnashing of teeth by the Irish Establishment about how incompetent the British supposedly are in the negotiations is just another way of saying, as Peter Sutherland said the day after the UK referendum, that Brexit must be overturned.

The Irish Establishment is so saturated in europhilia that it refuses  to face up to the fact that the  Republic and its people would be much better off if they left the EU along with the UK  – thereby  instantly removing any North-South Border problems.  While numerous studies have been commissioned on the bad effects of Brexit on Ireland if the UK leaves the EU while the Republic remains in it, it is a startling fact that not a single study has been made of the pros and cons of the Republic leaving the EU alongside the UK, apart from that mentioned below.

What matters now is that Brexit goes ahead legally next March, and not the detailed terms for the post-Brexit period, which will be open to evolution anyway.  One might recall the Anglo-Irish Treaty of 1921, which was regarded as quite limited at the time but which the Irish Free State built on and went on to establish complete Irish independence.

Once the UK is out of the EU, trade will continue as traders like to trade, have always traded and always will. Far too much emphasis is being placed on the details of the post-Brexit trade agreement because that is what bureaucrats and journalists know about. They know very little about trade.

Although the EU is much weaker as an entity than most people believe it to be , or portray it as –  a weakness which the European Commission has been exploiting in the negotiations so far – the Continental Member States  are more than strong enough collectively to assert themselves and overrule the Commission/Irish Government Axis that has been running the show, on the EU side, since the negotiations began – if and when they come to a realization that THEIR interests require them to do that.

N.B.  The group of Irish lawyers and economists who are responsible for this statement produced a Private Study Paper last year, “Why Brexit should be accompanied by Irexit (Ireland Exit)”, drafted by the undersigned, which is available on request at a cost of £10/€15.

Anthony Coughlan

Director

(Associate Professor Emeritus in Social Policy, Trinity College Dublin)

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

Ireland’s bluff called – a letter from our Chairman

This letter was sent by our Chairman, Edward Spalton, to the Scottish Daily Record in response to an article which appeared in the paper on 27th November.

Sir,

( I was visiting, so chanced to read your article “Dublin Down” p4, Monday 27 November).

For an EU document, Article 50 of the Treaty on European Union is unusually short and easy to understand.

It is quite clear that the arrangements for a country to leave the EU are to be agreed by the European Council under the Qualified Majority procedure. The Council’s decision is then subject to approval by the EU parliament.

Neither the Irish government nor any single member state has a power of veto. I am no longer surprised at the ignorance of our politicians which allows the threat of a veto by the Irish Prime Minister to go unchallenged.  But I live in hopes of better informed newspaper correspondents!

Unwillingness to consult original EU documents is widespread in high places. At a recent private meeting of top business leaders in London, nobody put up their hand when asked if they had even skim-read an EU Free Trade Agreement. Former civil servants who were present said this was true of ministers they had served.

Of course, most such documents  are long and crashingly boring but this is not true of Article 50.

Yours faithfully

Edward Spalton

European Council authorises the start of Brexit talks and adopts negotiating directives

Below is an official press release from the European Council. Brexit talks are expected to begin in earnest during the week beginning 19th June according to Michel Barnier, the EU’s chief negotiator. This will be shortly after the UK General Election

The Council, meeting in an EU27 format, adopted a decision authorising the opening of Brexit negotiations with the UK and formally nominating the Commission as EU negotiator. The Council also adopted negotiating directives for the talks.

Both texts are based on a recommendation presented by the Commission on 3 May 2017 and build on the guidelines adopted by the European Council (Art.50) on 29 April 2017. Their adoption allows for the start of negotiations with the UK following the notification of its intention to withdraw from the EU (under article 50 of the Treaty of the EU).

“Today we have established the EU position on the key issues for the beginning of the talks. The rights of citizens are at the very top of our agenda and we aim for an ambitious solution, where those affected continue to enjoy their rights”.

Louis Grech, Deputy Prime Minister of Malta and President of the Council

Negotiating directives and phased approach

This first set of negotiating directives is intended to guide the Commission for the first phase of the negotiations. They therefore prioritise issues that have been identified as necessary for an orderly withdrawal of the UK, including citizens’ rights, the financial settlement and the situation of Ireland, as well as other matters in which there is a risk of legal uncertainty as a consequence of Brexit.

The first phase of the talks aims to provide as much clarity and legal certainty as possible and to settle the disentanglement of the UK from the EU. Once the European Council deems sufficient progress has been achieved, the negotiations will proceed to the next phase.

An agreement on a future relationship between the EU and the UK can only be concluded once the UK effectively leaves the EU and becomes a third country. However, discussions on an overall understanding of that future relationship could start during a second phase of the negotiations.

The negotiating directives may be amended and supplemented during the negotiations.

Citizens’ rights

The first priority for the negotiations is to agree on guarantees to protect the rights of EU and UK citizens, and their family members, that are affected by Brexit. The EU27 insist that such guarantees should be reciprocal and based on equal treatment among EU27 citizens and compared to UK citizens. This should cover, among others, the right to permanent residence after five years of legal residence, including if this period is incomplete on the date of withdrawal but is completed afterwards.

The negotiating directives specify that workers, self-employed persons, students and other inactive persons should be covered, as well as frontier workers and family members. Guarantees should protect residence rights and free movement, as well as all the rights attached to them (such as health care). All rights should be protected for the lifetime of the persons concerned.

Financial settlement

The EU27 agree there must be a single financial settlement and the UK must honour its share of all the obligations undertaken while being a member. The UK should also fully cover the specific costs related to the withdrawal, such as the relocation of EU agencies currently based in the UK. The agreement should include a calculation of the total amount and a schedule of payments, as well as further rules and arrangements to address specific issues.

The situation of Ireland

The EU is committed to continue to support peace, stability and reconciliation on the island of Ireland. Nothing in the UK withdrawal agreement should undermine the objectives and commitments of the Good Friday Agreement. Negotiations should aim to avoid a hard border, while respecting EU law. Issues such as the transit of goods will need to be addressed.

Goods placed on the market and procedures based on EU law

The negotiating directives also cover other issues were arrangements are needed to reduce uncertainty and avoid a legal vacuum. This includes addressing what will happen with procedures based on EU law and with goods already on the market. For instance, if a product is already placed on the single market before the withdrawal, it should be ensured that it can remain in the market afterwards.

Other matters where there may be a need to reduce uncertainty or avoid a legal vacuum, such as services, will be covered in future negotiating directives.

Next steps

The Commission will agree with the UK the dates for the first negotiating sessions. The first formal meeting between the EU and the UK negotiators is likely to take place in June.

 

Aspirations, but little detail

The Government’s eagerly-awaited white paper, “The United Kingdom’s exit from and new partnership with the European Union” appeared yesterday. It consists of over 70 pages in total, although one or two pages are blank.

It has twelve sections, which are as below:-

1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.

2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.

3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.

4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.

5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.

6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.

7. Protecting workers’ rights – We will protect and enhance existing workers’ rights.

8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.

9. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world.

10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.

11. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.

12. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

After reading it through, the abiding impression it creates is that it has identified the key issues we will face in leaving the EU and also sets out in very broad terms what the Government would like a post-Brexit UK to look like. What is missing is the detail, including how we will arrive at the end point.

To take one subject which will be familiar to readers of this website – fishing.  All the White Paper tells us is that “it is in both our interests to reach a mutually beneficial deal that works for the UK and the EU’s fishing communities. Following EU exit, we will want to ensure a sustainable and profitable seafood sector and deliver a cleaner, healthier and more productive marine environment.” There is no detail regarding what is to supersede the Common Fisheries Policy, even though there would be huge problems if it were  repatriated into UK Law.

For instance, Regulation 1380/2013, the most important fisheries regulation, contains numerous mention of “union waters”. On leaving the EU, the waters up to 200 nautical miles from our shoreline (or the median point where we are less than 400 miles from another country’s coasts) will no longer be union waters, so a lot of re-writing would be necessary. Why bother, however, when the CFP and its quota system is so seriously flawed?  We can but hope that by the time negotiations get under way, the Government realises the importance of excluding fisheries legislation from any large-scale repatriation of the EU Acquis into UK law.

The White Paper raises the issue of the EU customs union and our future relationship with it. The Government has been very enthusiastic about wanting to make the most of our freedom to strike our own trade deals but there is very little detail about how it proposes to maintain trade with the EU. “There are a number of options for any new customs arrangement, including a completely new agreement, or for the UK to remain a signatory to some of the elements of the existing arrangements.”

The positive assessment of the UK’s involvement in Ukraine (under Section 11) does not make for happy reading, sadly. Now we are on the way out, it is time to leave the EU to its own empire building and to join President Trump in seeking rapprochement with Russia rather than than continuing foolishly and unnecessarily to antagonise Moscow.

Of course, this white paper has been produced to satisfy demands by MPs to be given some idea about the Government’s Brexit plans. The government has a bit of a tightrope to walk. MPs understandably don’t want to be left in the dark but at the same time, there are good reason for Mrs May and her team keeping their cards close to their chest so as not to give too much away to the people from the EU with whom they must negotiate.

On balance, however, anyone who has been listening to the recent speeches by Mrs May and her Brexit team would have not found much in this document which they did not already know. It defines the important tasks which needs to be addressed and paints a very positive vision of what life will be like once we’re out. How the Government will take us to this point is another matter and we hope more will be revealed soon as it cannot afford to get this wrong.

 

Overturning Referendums – it’s the European way.

Sometimes I don’t know how they do it, these politicians. They stand there with straight faces and say things that are not true. They know they are not true, we know that they are not true. And yet still they expect us to believe what they are saying.

Just recently we have seen a great deal of this. One after another pro-EU politicians have queued up to tell us that they are now reformed characters and that they have no intention at all of trying to keep the UK inside the EU. Oh no, of course not.

“There is no serious chance that the House of Lords will block Article 50” Yvette Cooper tells us. Nicola Sturgeon says she is interested only in protecting the rights of the Scottish government. Gina Miller, who launched the Article 50 court case, assures any one who will listen that she is concerned only to establish the proper process for the move.

You can believe them if you wish. Personally, I do not.

Let’s look at how the EU élite have reacted when previous referendums have gone against them.

In 1992 the Danish voted NO to the Maastricht Treaty on European Union. Everyone agreed that democracy was paramount and that the result would stand. Then the EU promised to give Denmark some opt-outs. The slavishly pro-EU Danish government then held a second referendum, which it won.

In 2004 the EU panjandrums agreed the grandly named “Treaty establishing a Constitution for Europe”. This sought to sweep away all previous treaties and replace them with a single, unified constitution. That would be a constitution like any other unified state has.

Ratification got under way with Parliaments in several countries pushing it through with big majorities. Spain held a referendum that approved the treaty. Then France held a referendum, which ended with a vote of 55% NO, followed by the Netherlands which gave a resounding 61% NO. Referendums were promptly cancelled in Poland, Portugal, Ireland the UK and Denmark. EU leaders promsied to “respect” the referendum results and called for a “period of reflection”.

That period of reflection ended with the Lisbon Treaty, which was virtually identical to the failed Constitution. This time it was pushed through the French and Dutch parliaments without a referendum. So much for respecting the results.

Then the Lisbon Treaty ran into trouble when referendum in Ireland saw a 53% NO vote. In June 2008 the EU Parliament held a debate on the Irish result. Speaker after speaker declared that they would “respect the result”. But of course, they did not. Just a year later the slavishly pro-EU Irish government held a second vote. This time the EU leaders issued a series of high sounding promises about legal guarantees. This time the Irish voted YES.

So we can see the pattern. If a referendum produces a result the EU does not like, the élites issue high sounding – but utterly worthless – statements about respecting democracy. They they announce a few cosmetic changes and hold a second vote.

I have no doubt at all that this is what is being planned by the Europhiles who were so aghast at losing the British referendum in June. The key difference is that in Denmark, Ireland and elsewhere the national government was obbsequiously pro-EU and could be relied upon both to hold a second vote and to assure their populace that the vague changes were truly wonderful.

Britain in 2016 is different. We have a Prime Minister who has declared that “Brexit is Brexit”. Like her or not, Mrs May and her pro-Brexit administration is all we’ve got to stand a chance of enssuring that our referendum result is not only “respected” but also implemented.

 

Rupert Matthews

Rupert Matthews

Rupert Matthews is a freelance writer and historian. During the recent EU Referendum campaign he served as Campaign Manager for Better Off Out and spoke at meetings from Penzance to Aberdeen, Belfast to Dover. Rupert has written over 100 books on history, cryptozoology and related subjects. He has served as a councillor for 8 years and has stood for both the Westminster and European Parliaments. You can follow Rupert on Twitter at @HistoryRupert or on Facebook as rupert.matthews1.

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