Taking Stock

Where are we with the Brexit negotiations and where would we like them to be going?

It’s hard to find any sort of consensus about the former, let alone the latter. Are we being led deliberately towards a Brexit in name only or are we about to see our side walk away from the negotiations and rely on so-called “WTO rules” to govern all our future international trade? Was Article 50 always a trap which was going to end up locking us into the EU?

Given the multiplicity of deeply-held views, this piece could end up being just one other person’s opinion. I hope not.  In summing up where we are now, I have read a fair number of different commentators and weighed their opinions before writing this summary.

Firstly, I think it is beyond dispute that the talks have not gone brilliantly from the UK’s point of view, but at least we can be thankful they did not grind to a halt last December as some had predicted.

David Davis and his team got off to a bad start by agreeing to the EU’s sequencing – in other words, “sufficient progress” had to be made on the Irish border issue, the rights of EU citizens resident in the UK and the “divorce settlement” before we could proceed to other issues. Under Article 50 of the Lisbon Treaty, there was no requirement for him to agree to this.

Next comes the transitional arrangement. This was our side’s idea and does not reflect well on our politicians and civil servants.  Not that long ago, we were hearing from some quarters that a trade deal between the EU and the UK would be “the easiest in human history” because of our regulatory conformity. It has since dawned on at least some politicians (although possibly not even all of them, even now)  that this isn’t the case.

The mistake is a very fundamental one because it reveals a profound ignorance of the purpose of the whole European project. We have always viewed the EU as a trading bloc – after all, that was what Edward Heath sought to emphasise in the early 1970s. He did occasionally talk about the sharing of sovereignty, but he didn’t exactly bend over backwards to  explain even to Parliament what we were joining. Of course, Heath knew the truth and now our team is having to learn the hard way. The EU is primarily a political project and trade issues are only a means to an end.

It is also a very rules-bound organisation. Belatedly, our team is discovering that “flexibility” is not a popular word in Brussels. Treaties with precise wording govern every aspect of the EU project. The EU’s chief negotiator, Michel Barnier, knows its workings inside out and unfortunately, comes across as far more on the ball than David Davis.

Is Barnier an ogre? Does he want to punish the UK? Is he merely a puppet whose strings are being pulled by Berlin? A delegation of pro-Brexit businessmen met him in Brussels recently. One of them, CIB Committee member John Mills, described him as “tough and charming“. Essentially, he wants these negotiations to succeed but not at the expense of the integrity of the EU’s single market.  The European project unquestionably took a knock when we voted to leave and he as much as any senior figure in the EU is committed to damage limitation and keeping the show on the road.  The EU has other crises on its hands and Brexit is an unwelcome distraction. After all, it was our decision to leave.  Given these factors, Barnier is merely sticking to the EU rulebook which he knows so well. There is no evidence of any personal animosity towards us our our politicians.  His biggest gripe is that we don’t seem to know what we want from Brexit.

This is essentially where our request for a transitional arrangement comes in. There have been pro-withdrawal groups, including the Campaign for an Independent Britain, even before we joined the European project in 1973. We have been good at arguing the case for independence and ultimately persuaded over 17 million voters of our point of view. We have been less good at explaining how we can leave seamlessly and this has been the root of the Government’s problems.

The Transitional deal, at least if it is negotiated according to the rules laid down by the European Parliament, will be very bad news for us.  It seems to be being pursued purely because the Government knows that a full trade deal will not be ready by March 2019; in other words, it buys us more time.  Theoretically, there is a “sunset clause” – it will only last 21 months, but what if the trade deal isn’t signed by the end of this period?

The significant and surprising support for this transitional deal seems to be based entirely on the assumption that this won’t be a worry. If there’s something good to look forward to, these 21 months of being essentially controlled by Brussels is a price worth paying. This is a fallacy, however, as this piece helpfully explains.

The dilemma we face is that while there is widespread agreement about where we actually want to be after Brexit, there is no agreement on how to get there.

Apart from diehard remoaners, most people would probably agree on all or most of the following:-

i) The ECJ must have no power whatsoever to interfere in the government or legal process in the UK – including those EU citizens currently resident here. We must remove ourselves from Europol and the European Arrest Warrant – in other words, we are back to being a normal sovereign independent country as far as criminal justice is concerned.

ii) Fisheries and agriculture must be 100% under domestic control (and fishing should not be managed on a quota system)

iii) We must be separate from the EU’s military machine, including in the areas of procurement.

iv) We should not make any contribution to the EU’s funds apart from covering our costs where we wish to participate in a specific scheme such as the Erasmus student exchange.

v) we must have complete control of our borders

vi) we must have complete freedom to set our own levels of taxation, benefits and tariffs.

Agreeing our long-term goal is the easy bit. The problem is that we may never get there unless the Government can define in terms which the EU can understand what we want in the immediate post-Brexit period. The transitional arrangements might at least keep industry happy inasmuch as no new guidelines need be given for life could continue for a further 21 months more or less as it does now, but this is only kicking the can down the road. If we find ourselves bogged down in a transition arrangement along the lines already discussed and this period is then extended to (and beyond) the next General Election, we may find ourselves stuck in a sort of limbo which would please no one and would leave many voters vulnerable to the remoaners’ propaganda and thus eventually crawling back into the EU. Alternatively, if we walk away from the negotiations altogether, the net result could be a sudden and severe recession. In this instance,  once again we could be faced with a clamour to re-join.

This would be a tragedy. The key to preventing this happening is to focus on the unacceptability of the current transitional proposals. While many leave voters are strongly opposed to any further membership of the European Economic Area, as a stopgap, it is much less awful, as Nigel Moore argues here. What is more, according to Profesor George Yarrow, unless we give notice that we are quitting the EEA before 29th March of this year, we will still be in it on Brexit day by default, as leaving he EEA is totally separate from leaving the EU.

Yarrow’s thesis has not been put to the test, but then, Brexit as a whole is breaking completely new ground. It is hardly surprising that the path has not been a smooth one. All the same, progress has not been satisfactory thus far and although on balance, I think that the Government’s poor performance has been borne out of an inability to master the issues as quickly as anticipated rather than out of a devious plan to stifle Brexit, Mr Davis and his team desperately need to up their game if we are to achieve a successful Brexit in just over a year’s time.

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  1. Phil JonesReply

    John, I agree with your excellent article but wanted to mention one thing. Professor Panos Koutrakos of Monckton Chambers has studied the legal question as to what happens if the UK does not give a separate notice to the EEA to leave, His article is below.


    His conclusion, as I read it, is that the UK ir any other Member State effectively leaves the EEA at the same time as it leaves the EU unless it has become a member of the EFTA. A territory either has to be a Member State or in the EFTA to be in the EEA. To me he says that as the UK leaves the EU it effectively also leaves the EEA because otherwise it would be in breach of international law and in nowhere land. In other words you can’t get the benefits of the EEA unless you are either a Member State of the EU or are an EFTA member such as Norway, Iceland, Switzerland and Lichtenstein. Norway, Iceland and Lichtenstein are in the EEA (not Switzerland) but it is their EFTA membership that allows those three to be in the EEA. Given this situation, the UK wouldn’t have to give notice of leaving the EEA because such leaving is implied by its leaving the EU. Possibly the UK is going to play the game of not giving notice on leaving the EEA so that it comes into the awkward international law situation mentioned by the Professor on 29 March 2019 and at that time will turn around and say that it has to join the EFTA immediately. I wouldn’t think that would be the case. Rather I think that the UK and EEA probably have a mutual, if unspoken, understanding that the UK will be leaving the EEA at the same time that it leaves the EU.

    On the broader matter of the UK not knowing where it’s going with Brexit, I look at things as follows:
    (1) the EU has made it very clear that after leaving the UK will not have the same trading arrangement as Member States;
    (2) because of (1), the UK is unclear as to what it should aim for in suggesting a new trading arrangement;
    (3) because the UK is unclear as what the new arrangement will end up being, the EU characterizes the UK negotiators as not knowing what they want.

    To me it’s a classic case of chicken-and-egg or Catch-22. I think the best further approach for the UK is to say to the EU: “What is the best trading arrangement you can offer us upon leaving the EU?” and look for the reply. The UK is constantly playing into the EU’s hands. It has to stand its ground and ask the foregoing question. The EU won’t answer it of course. At that point the UK should indicate what trading arrangement will satisfy it if it is not to ‘walk away’. And if the EU says no to that arrangement (as it will) then the UK just walks away. That’s the way I see the whole negotiations ending (walking away).

    There’s no EEA possible without EFTA once the UK leaves. So EEA alone is out of the picture. As far as the EFTA (Switzerland model), you just have to look at the present ongoing problems that Switzerland is having with the EU. It’s a total mess. It’s not working. The EU threatening and Switzerland threatening back. I’m sure that Mrs. May and Mr. Davis are looking at that and being turned off EFTA. Switzerland has in effect a political arrangement with the EU, not just a trading arrangement. I want the UK to return to being a separate independent nation-state/country and that means no EFTA and no EEA. I believe that Mrs. May’s Government is still on course for delivering that. A bit of business uncertainty, but better that than the UK being half-in, half-out of the EU, i.e. changing from EU province to EU quasi-province.

    • Jason BReply

      Interesting analysis Phil. We are still under the authority of the EU, whether we like it or not right upto Brexit and they are letting us know it. In your fourth paragraph ‘what is the best trade arrangements you can offer upon us leaving the EU? ‘ we must now step up and give them a give date to answer by adding – “Unless we hear to the contrary by the ………………..we will take it that you have no positive package and therefore we will act accordingly”. We must get off the back foot..

  2. Adam HileyReply

    the only thing We must do is remove the grip of the dishonest corrupt self serving and arrogant 3 failed old parties the only way Britain can truly recover from these failures of the past 50 years keep electing the Conservatives Labour or Liberal Democrats is a waste of time, I have never voted for these parties because it achieves nothing only wasting Money Mass Immigration sucking up to US foreign policy grovelling to the UN EU Theresa May Jeremy Corbyn or Vince Cable are hardly political giants are they also the House of Lords & Monarchy are little better libertarianpartyuk.com

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