How to uncouple ourselves from the EU’s quangocracy

The Red Cell’s latest research looks at the EU’s hidden layer of administration and governance. The Tangled Web: Dealing with EU Agencies after Brexit reflects on a massive growth industry in the EU. Today, Euroquangos employ 15,000 people and operate a budget of €10.1 billion. Clearly, this is not small beer territory but high ABV % Burton on Trent land, and should be an area of considerable focus for Brexit planners.

Their interpretation will clearly vary from case to case. Some institutionally are straightforward duplicates of national counterparts, undertaking missions that currently have minimal or a shared treaty foundation, but whose simple existence provides cover for the Commission or MEPs to justify their own ambitions to gain greater powers down the line. By contrast, a small number of others generate output that has a direct bearing on the interoperability of certain sectors. The question that arises in the latter case is therefore: can the same effect be duplicated by setting up an external liaison mechanism, and by providing legal cover for existing agreements to transition into bilaterals?

In most cases, it would appear to be so. The assessment reached is that of the 53 Agencies, only two merit something approaching formal UK affiliation; eight require a liaison role through a form of “Strategic Association”; while the rest (all 43 of them) can be dealt with by checking their website and picking up the phone. Clearly, much is dependent on how quickly legal bridges can be constructed to span those areas where treaty continuity is essential after Brexit, though in most cases a preliminary review would suggest this is an issue of specifics rather than generic concern.

So what then should be the guiding principles used to drive the audit, and what do ministers and civil servants need to plan around conceptually? The Red Cell report identifies seven themes.

In the first instance, association should default to the most minimalist level, unless a practical need for closer administrative cooperation is proven. What can be achieved by a phone call or monitoring a web site should be left at informal intergovernmental level. The default should not be to begin with where we are at now, if we are to make the most of the opportunities of Brexit.

Secondly, planners need to appreciate why that concept of institutional distance is inherently desirable. Euroquangos constitute an enduring element of political risk, owing to the strategic objectives of the EU. They are also a long term distraction and complication for UK delegates sitting in those international bodies that generate trading standards and which should constitute the priority arena.

Meanwhile, the nature of future cooperation should not be set up in such a way as to give one part of Whitehall a courtier’s monopoly. That risks generating a vested interest held by one department, supporting the body accruing powers at the expense of competing departments, but at actual cost to collective sovereignty.

Priority should be given to points of liaison that focus on cutting and pre-empting technical barriers to trade.

Fifthly, the money issue. Juste retour should apply: the funding of programmes should, taken collectively, be cost neutral in terms of the budget that comes back. The UK should no longer be subsidising expenditure done in poorer EU states – unless, that is, the Government is planning on taking those net sums off the 0.7% international development target, which one doubts.

Sixthly, any cooperation should not include automatic obligations for the UK to legislate, which must be the preserve of Parliament. As a future paper by the Red Cell will explore, the UK also needs in the interim to develop better mechanisms for monitoring how global standards are set, as it becomes closer in the food chain to the standards being set at their global source.

Finally, and associated with that theme of good governance, while UK quangos may in some cases initially take over from Euroquangos as a default, change must not end there. An opportunity exists for significant reforms of the national system of off-books government, with powers returning to more direct democratic supervision through ministers within departments, greater Parliamentary oversight, devolution to regional government level (and, importantly, beyond), and more direct legislative responsibility and accountability.

The EU Agencies collectively constitute a huge subject matter spanning the concerns and output of most government departments. To do the subject(s) justice, each Agency merits a paper in its own right. No doubt Whitehall is already well into the process of doing just that. Hopefully though, this research will encourage auditors to be justly bold in their approach and not take the assumed ‘benefits’ of current affiliation at face value. Otherwise, our fleet of Euroquangonauts will be orbiting us in great cost and numbers for a long time yet to come.

(this article originally appeared on the Brexit Central website and is used with permission) 

It’s time to establish what kind of relationship with the EU will be in the national interest

One of the myths put about by opponents of Brexit during the referendum campaign was that a Leave vote was a ‘leap into the dark’, or less energetically, a ‘step into the unknown’. While this may have suited Remain’s campaign narrative, suggesting that there was more fog around than could be found in a James Herbert horror novel was not a fair representation of the reality.

The truth is that a lot of work has been done on Brexit. But most of it has not had wide public recognition. That is not the fault of Eurosceptic thinkers and planners, but a counter-intuitive inevitability of our mass communications age – a matter of volume and noise, chance and choice.

It’s to improve the neon lighting that I have updated four major pieces of work from late last year. These were originally circulated in Eurosceptic circles by Better Off Out before the referendum started to motor. They are now more immediately relevant, especially for those engaged in restructuring the UK’s relationship with its EU counterparts, and have been further revisited to accommodate certain additional data that has since emerged.

The first in the updated series is being published today, for which I am hugely grateful to BrexitCentral. It’s intended to encourage those contemplating Brexit across Government to go back to brass tacks and think about what drove planners towards the EEC in the first place.

Simplistically put, the UK joined because key people concluded that the UK’s economic best interest lay in joining a developing customs union with economies that were amongst the best performing in the world, at a time of immense geo-strategic turbulence and threat.

We might usefully apply the same criteria today, though we would reach very different conclusions. Indeed, as the old Eurosceptic saying goes, if we weren’t already a member, we wouldn’t today want to join.

Looking more strategically at aspects of our relationship with the EU, there are several key components to the formula that I urge our diplomats and planners to reflect on afresh. The National Interest thus proposes a number of principles to help ministers and negotiators work out where the balance of interest lies. How close does the UK need to be with EU institutions? What areas does it genuinely need to cooperate in? At what point does Single Market affiliation start to add more costs that it saves? These are fundamentals that deserve to be challenged from scratch.

The answers to these questions will vary from country to country. The needs of the Slovakian economy (let alone the wider state) are very different from those of, say, Ireland. So this formula will carry separate significance for every nationality, and not just be of interest for Eurosceptic groups across the continent at that.

Reviewed dispassionately, the nature of all these variables puts the United Kingdom in a particular category that suggests a much looser arrangement is likely to be needed. That in turn implies that Whitehall has to be bold, ambitious, and to scan the horizon, if this country is to find its best relationship with the EU. Anything short of that will be at best a missed opportunity, at worst a strategic failure.

But we can’t get there without a reboot.

A problem the Brexit department faces is the starting biosphere, and the many streams and wells that have fed Whitehall ponds over the past decades. There has been too much of a monopoly on acquired wisdom fuelled by the Jean Monnet system – and its other EU-funded cousins, as we have seen in recent criticisms of the track records of some of our High Court judges.

This has had consequences less dire in the UK than in other states (a comparison that should be of some pride to our academics), but coupled with the EU’s immense PR machinery, it has still left deep marks on the base narrative.

Consider briefly the issue of the “Euromyth”, the media story that the Commission denies ever happened. As it turns out, as the source behind a number of those stories over the years, I can vouchsafe that many did indeed flow from genuine plans and proposals caught at an early stage. These were then, once they became public knowledge, subsequently and sensibly repudiated. Had they not been spotted, it is more than likely they would have become bad laws – again to be criticised, but at a point when they were beyond the point of easy repeal, and after causing millions of pounds of damage to the UK economy. (Unlike Will Straw, there was never a CBE for any Eurosceptic engaged in that thankless task, I might add.)

However, there is then a world of difference between saying a project that didn’t happen is a myth, and saying the Commission listened to the public’s concerns and then pulled the plug. Rather than ingeniously following the latter option, tellingly their press team resorted to the former. One is led to the conclusion staff do so because they believe their own spin, that nothing was happening. Eppur si muove, as Galileo might murmur before such inquisitors.

Couple this unhappy world of smoke and mirrors along with the complete strategic buy-in of government that has outlasted civil service careers, and one can begin to see how ingrained perceptions and interpretations might have become, and how a fresh appraisal by a new generation of civil servants can prove useful.

The baseline assumption across the Foreign Office has been that the UK’s national interest lay in EU membership, while lobbying to avoid the EU integrating too closely (or too quickly and perceptibly: it depended on whose notes you read).

Notwithstanding the entire Margaret Thatcher era, the hand of Heath still lies heavy on the Locarno Suite. While it has been exorcised by Thatcher from the rest of government, the Ghost of Suez still roams King Charles Street, wailing warnings of British decline. The policy response to that crisis was profound. Ditching EFTA was quite possibly the greatest strategic error since 1945. The 23rd June vote may have come just in time to allow a second model of European co-operation fully to re-emerge, an alternative with genuine prospect, more liquid in its form and thus less brittle.

In their review, planners need to go back to the foundation elements, reassessing what the national interest may be for any given state in its dealing with the EU, and how close its orbit profitably needs to be. Law drafters also need to grapple with the realities and complexities on the hierarchy of international standards setting (which has much less to do with the EU than most people believe). Business figures and City analysts need to acquaint themselves with what the default deals mean without the red tape generated just for EU suppliers and manufacturers and not for anyone else. In short, everyone in Central London needs to put the kettle on and completely rethink what trade agreements are there to do.

I choose to be optimistic. Our civil servants are intelligent, hard-working, patriotic people. They will tackle this task head on – if inspired to do so, and given the tools and leadership to be bold and innovative.

But four decades of assumptions need to be dumped across Government first, and across all levels of management. I hope these four short e-publications help achieve that vital national reboot, starting today with the base coding.

Expat rights – ignore the scare stories

This helpful article, which appeared in The Brexit Door blog, is a most helpful debunking of a myth which has been doing the rounds recently.

One of the constant themes that I have heard over the last few days, both in discussions and on social media, is a fear over the treatment of ex pat Britons who are now living in  the wider European Union if we were to leave it.

This has been fuelled by the media, and used as part of the ‘Remain’ campaign. I hadn’t taken it too seriously until a friend of mine in France posted one of the many UK Labour “mythbusters” links on my facebook time line, which also attempted to sow fear into the minds of Ex Pats and more recent immigrants to the UK. Clearly, she has been unnecessarily concerned by these attempts to misrepresent the facts, which I find both underhand and particularly unpleasant. (This has always been part of the tactical advantage for Remain of going to the polls early and shortening the campaign – fear takes hold quickly but longer to assuage with facts).

The law surrounding the rights of Expats is clear, and they have nothing to worry about (that they didn’t have already anyway).

The Doctrine of Acquired Rights.

This has long been a guiding principle of international law, especially in succession issues, where the sovereignty of a nation has changed. An early 20th Century example of how acquired rights are accrued in international law is that of the German residents and descendants living in Poland after the end of the Great War. Moves to treat them as ‘aliens’ with reduced rights were spurned by the Permanent Court of International Justice. They had been resident for many years (and some had been born there), and although the court at that time could not bind Poland to the decision ( the role of the court in this case of 1923 was only advisory), the doctrine upheld is clear. So this is not a recent legal development.

This is backed up by the more recent (1969) Vienna Convention on the Law of Treaties which in article 70.1.b states that termination of a treaty :

Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

This would apply to expats just as much as it would to EU citizens living in the UK. The current standing would apply, the obligations of the state would be unchanged. This should extend to anti discrimination laws also, which would be applied in the nation states themselves at a domestic level, and ultimately in the European Courts for the members of the European Union if not upheld correctly. The right to remove a case to the EU would remain unchanged in this aspect (as we see non EU citizens having access to the EU courts in disputes with the UK state based on residency or locus standi).

What does this mean for Expats and and EU Citizens on a practical level?

Quite simply, that whatever the outcome, they have nothing to fear. There is no political will here in the UK to do anything prejudicial towards the millions of EU migrants living and working in the UK. It would fall foul of our own anti discrimination laws, before we even got to thinking about how it would be treated in international law. It is also not in the nature of the UK courts, administration or its people to behave badly to foreigners or immigrants, despite some of the wilder accusations or minority opinions held in pockets by extreme nationalists. This is no different from any other country in Western Europe, we are an open and welcoming nation for all those who come here (observation of our laws and customs being our sole request to the international settler).

For the Expat Briton in the EU, the situation should be exactly the same. The law continues to protect the rights that have accrued under our membership of the EU even after we have left the political structures. There should be no change to the relationship that Expats have with their countries of residence, municipal authorities or the EU institutions as a whole.

One concern raised personally with me was that the French have never signed the Vienna Convention, would that distinctly affect Expats in France? The answer to this is a simple. No, because the Vienna Convention was only in this respect codifying what has always been clear in French Legal Doctrine, and was clear before the Convention was drafted.

I came across this rather old text, in which Law professor Pierre A Lalive, (the President of the Geneva Law Society), explains the doctrine and its history. He makes specific reference to the importance of the Doctrine in French legal history (and to Pillet’s theory, p157 if you care to read it). The French have no legal history of setting aside the doctrine of acquired rights. And also, the EU backstops this tradition as it requires France to practice correct anti discrimination law as laid down by the Treaties.

The Final Outcome

Let us be extremely frank here, the Government does not want to leave the EU. The civil service which advises it and will form the backbone of the negotiating strategy team will always look for the least disruptive method by which to leave the EU if the people force their hand. They do not want to leave the EU either, because their function is now so intertwined with it that it has become hard for all practical purposes to determine where Whitehall ends and Brussels begins.

This leaves (as Rafael Behr points out in the Guardian today) the civil service looking for the closest answer to EU membership while still upholding the strict will of the people. And of course, the question on the ballot paper is very straightforward – about ‘Leaving the EU’. The post EU settlement is not up for discussion as part of the Referendum question, we have discussed it so as to reassure those who have fears about the effect of Brexit that really there is little to worry about.

So this leaves the government open to many options, but it is clear as Behr points out, that it will seek the closest relationship with the EU that it possibly can without actually breaking the directly expressed will of the British people. This will be to retain our membership of the EEA (so therefore keeping the four freedoms in tact) and looking to re enter our relationship with the EFTA. This would give us significant gains in political freedom, especially in Justice, Home affairs, International Affairs, International Trade, Fishing and Agriculture, Environmental regulation, education, transport, social and welfare rules and such employment areas such as health and safety.

Even though this would not change the four freedoms it would allow us access to the ‘Unilateral Emergency Brake’ of EEA 112/113 (which we have seen Iceland use). Many other things would remain unchanged. Labour Law would not significantly change as we have obligations under the ILO (International Labour Organisation). Trade rules and product conformity assessments would not change, this is governed by the EEA rules (EU laws which have EEA application run to about 21% of the total of EU law and are largely market regulation and competition law). Most of those rules are generated by international bodies such as the WTO, UNECE and Codex Alimentarius. All of these bodies would now have a British direct influence, currently pooled by the EU and operated on our behalf.

So change would be slow and incremental, there would be no threat to businesses, trade, or to individuals working or in business in the EU or here where they are outside their country of nationality. Conformity would remain, the most major change for businesses would be that they would no longer be in the Customs Union, but of course that will free the UK government to reduce tariff  and non tariff barriers further to the wider world (and that’s something the British have proven to  be pretty good at, international relations).

You have absolutely nothing to worry about.

“A lie can travel half way around the world while the truth is putting it’s shoes on”.

(Mark Twain (Wit and Wisdom of Mark Twain: A Book of Quotations)).