As humiliations go, accepting this Brexit deal would be complete and unendurable

After the end, the beginning. The long months of talks in Brussels have brought forth a draft withdrawal agreement to leave the European Union – all 585 pages of it. Amid the drama, the essential themes are clear. There will be a backstop agreement to the deal without an end date and with no ability for […]

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After the end, the beginning. The long months of talks in Brussels have brought forth a draft withdrawal agreement to leave the European Union – all 585 pages of it. Amid the drama, the essential themes are clear. There will be a backstop agreement to the deal without an end date and with no ability for the UK to extricate ourselves without the consent of a third party. And there will be a grave threat to the Union.

Northern Ireland will find itself in a different regulatory regime to the rest of our country – to use the analogy that is being deployed about the “backstop within a backstop”, it will be in the deep end of the swimming pool while the rest of us are only paddling up to our knees. This represents gold dust for the Scottish Nationalists, who will seize on a different arrangement for one part of the country to demand a separate arrangement for Scotland.

We will be asked to sign up to all this, and hand over £39 thousand million, in exchange for a flimsy 15-page “political declaration” about the hoped-for trade relationship that would lie beyond this, should we ever be able to escape. That political declaration will be drafted to mean all things to all men, but will lead inexorably to the ultra-high alignment agreed at Chequers in July rather than the Canada-style free trade deal we should be aiming for. There will be so-called “non-regression clauses” to ensure the UK cannot out-compete the EU. This would scupper our hopes of being a global trading titan and bind us into EU manufacturing rules in perpetuity. As humiliations go, this would be complete and unendurable. The Prime Minister will have unerringly delivered a deal that delivers none of the benefits of leaving the EU and none of the benefits of remaining.

85 years ago, Churchill warned: 

“All down the centuries, one peculiarity of the English people has cost them dear. We have always thrown away after a victory the greater part of the advantages we have gained in the struggle. The worst difficulties from which we suffer do not come from without. They come from within… from the mood of unwarrantable self-abasement into which we have been cast by a powerful section of our own intellectuals. They come from the acceptance of defeatist doctrines by a large proportion of our politicians… Nothing can save England if she will not save herself. If we lose faith in ourselves, in our capacity to guide and govern, if we lose our will to live, then indeed our story is told.” 

Such will be the legacy of Brexit if this deal goes through. The brave decision of the British people to leave the European Union, taken in the largest democratic vote in our history, will have been reduced in two years to a shameful and squalid surrender. This must be resisted at all costs, and I have little doubt that the House of Commons will indeed defeat the deal should matters go that far.

The burning question will then arise: what next?

A deal may still be salvageable, based around the broad and generous offer made by European Council President Donald Tusk in March. This would be an advanced free trade agreement, encompassing services and covering all sectors with zero tariffs and no quantitative limitations. Alongside this the UK would offer deep security cooperation and mutual recognition of practical issues from aviation regulations to driving licences. The EU’s offer, of course, was made to Great Britain and not the whole of the UK. The EU was not prepared to extend its offer to Northern Ireland – hence so much of the tortuous negotiation that has ensued.

But there is a way to deliver such an agreement, in the form of a free-standing treaty on trade facilitation between the UK and Ireland to be negotiated in parallel to the wider negotiations, as it surely could be. Such a treaty would deliver an invisible border that would satisfy WTO rules and could be referenced in the wider UK-EU free trade agreement. There would be no hard border and no need for a backstop beyond this.

This seems to me to represent a deal that could secure sufficient votes to satisfy Brussels and pass the House of Commons. In tandem with this, an immense national effort must be set in motion so that the UK Government and businesses prepare themselves day and night between now and 29th March next year for a no-deal scenario. Every moment that passes without such an effort is a moment wasted, and weakens our hand in securing the good Brexit deal that our country expects and deserves.

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The ‘Norway for now’ option is far from perfect, but Brexiteers should consider its merits

Sentiment about a Brexit deal fluctuates wildly almost by the hour. Whatever the current state of speculation, we surely have to prepare ourselves for what happens if Chequers falls over. I know this is anathema to many Brexiteers. But my personal view is that while No Deal would likely be fine in the long run, […]

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Sentiment about a Brexit deal fluctuates wildly almost by the hour. Whatever the current state of speculation, we surely have to prepare ourselves for what happens if Chequers falls over.

I know this is anathema to many Brexiteers. But my personal view is that while No Deal would likely be fine in the long run, in the short term it would be an embarrassing economic fiasco. The consumer story from hell. It would be to Brexit what Gerald Ratner was to cut-price jewellery.

Instead of going down that risky route, I want to ask BrexitCentral readers to consider falling back on the UK’s membership of the European Economic Area. This is the so-called “Norway then Canada” or “Norway for Now” strategy advocated by myself, Nick Boles MP and others.

Please hear me out. It is quite possible that neither Chequers, nor “No Deal” nor trading on World Trade Organisation terms, nor a second referendum will pass in Parliament. In which case, the European Economic Area will be the only thing left on the table. Should we not seize it?

Far from reducing Britain to a “fax democracy”, where we have to pay huge sums into the EU and yet have no say over the rules and regulations passed in Brussels, the EEA is a commercial treaty between sovereign nations and could be a good resting point, outside the EU, the Common Agricultural Policy, the Common Fisheries Policy and the jurisdiction of the European Court of Justice – but with useful legal and economic options. We would effectively be members of the Single Market, but with sovereign protections.

George Yarrow, the Oxford professor who is the intellectual godfather of the strategy, also estimates that our payments to the EU – which would be limited to participating in relevant programmes – would fall from around £9.5bn to £1.5bn.

What is more, we are already contracting parties to the EEA. It is not true, as some have asserted, that we are leaving by virtue of having given notice under Article 50 to leave the EU. The EEA is a separate treaty, which we have signed on our own right, and has its own withdrawal arrangements. If we want to make the EEA treaty operative, all we have to do is to apply to the related European Free Trade Association (EFTA). This is the other “governance pillar” to the EEA.

There is not much the EU could do to stop us exercising our treaty rights without falling foul of a higher law, the 1969 Vienna Convention on the Law of Treaties. Don’t take my word for it. Take the word of Sir Richard Aikens, a former appeal court judge, on the Briefings for Brexit website. If the EU cut up rough, we could take them to the International Court of Justice (ICJ).

As for the infamous Irish backstop, the EEA would put in place the legal structure to make the technical border solution suggested by David Davis work. As we would be members of the Single Market, it would anyway be unnecessary.

On any measure, the EEA is also superior to the proposed transition arrangements. Inside the EEA we would have decision-shaping rights, and also the right to adapt and veto new legislation. We would, anyway, only be in the Single Market which accounts for just 28% of EU legislation.

If, while in the EEA, there was a dispute with the EU, it would be adjudicated by the EFTA Court, on which we would have two out of five judges. Contrary to myth, it is not bound by the ECJ. They do have to develop a homogenous area of law together but frequently the EFTA Court has disagreed with the ECJ.

Nor is it true that we would not be able to control freedom of movement. The EEA Treaty focuses in freedom of movement of workers and includes various measures to impose limits and restrictions, including an emergency break (as used by Liechtenstein). There is no common citizenship and British passports would be back.

Let’s be honest. It isn’t perfect. And it seems to me the biggest risk, which some Brexiteers have already pointed out, is we get stuck. Like Income Tax (introduced temporarily in 1798, it remains with us) the EEA might perpetuate itself. Some have called for a hard legislative commitment to leave before 2021.

However, I would contend that is a glass half empty way of looking at the EEA treaty. The exit mechanism, giving one year’s notice under Article 127, is much more permissive than the Article 50 process. Rather than put a hard stop on our departure date, which creates another cliff edge against UK interests and upsets the Norwegians, we should commit to a review and a break clause to be voted on by Parliament. If it did not work, we could leave to join a Canada-style free trade agreement. And in the meantime it might evolve into a congenial home for us.

The question to which the EEA is the answer is clear. So let me repeat it. What happens if Chequers falls over and the other options are blocked too? It is hard to see any other realistic, legally deliverable alternative. I urge Brexiteers not to rule it out.

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Theresa May needs to tell Michel Barnier that we will happily leave the EU on WTO terms

So here we are in the last days of the negotiations. Our Government stands on one side of a rhetorical gulf, terrified of No Deal and having made no significant preparation for it, its finest minds baffled by the impossible Irish Rubik’s Cube constructed for it by the EU. On the other stands the EU, […]

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So here we are in the last days of the negotiations. Our Government stands on one side of a rhetorical gulf, terrified of No Deal and having made no significant preparation for it, its finest minds baffled by the impossible Irish Rubik’s Cube constructed for it by the EU.

On the other stands the EU, sure from the outset that the UK would, in its delicate phrase, “take dictation” and now convinced that the strategy will pay off. No doubt the British officials leading the negotiations are assuring the Government that a deal can still be pulled off.

But what a “deal” it will be: a binding treaty in which the UK gives away large amounts of money and what seems to be a perpetual lien on Northern Ireland and in exchange gets an expensive “transition” period (with an option, it seems, to pay more for an even longer one) and a non-binding “framework” (possibly only a few pages long) that will guide the trade talks we will begin (but can hardly hope to conclude) in the never-ending “transition” period. During that “transition” we shall be fully subject to EU law but have no representation in its legislature (in possible contravention of the European Convention on Human Rights, but what the heck).

This will be mendaciously described by some as a “good deal for Britain that delivers the referendum result” and the Government will set out to frighten and cajole MPs of all parties into supporting it, with the clock ticking and the fanciful “cliff-edge” just a short hop down the road.

It is a scandal, really. But is the alternative “crashing out with no deal”, as some put it? No. It is still possible for the UK to take back control of the negotiations and achieve a successful and workable Brexit. But to do that means being willing to embrace the prospect of leaving without a trade deal. And it requires a proper understanding of what the EU intends the Irish backstop to achieve.

Our politicians have largely failed to present the backstop to us in its proper light. They say it is a transitional measure, one that will cover a gap between next April and a new trading relationship that will be so close as to make it redundant. They talk freely therefore of an “end-date” to the backstop, anticipating that close relationship as permanent.

But the EU perfectly understands that, once we leave the EU, there is nothing they can legally do to stop us from diverging, piecemeal or suddenly, from our new trading relationship. Michael Gove has told them that is exactly what we intend to do, after all. And if we do that, they may feel forced to erect a border on the island of Ireland to “defend” their Single Market. They want a guarantee that they can never be obliged to do that.

So what the EU is seeking in an Irish backstop is not a transitional or temporary thing. It has to be permanent (“workable, enforceable and all-weather”, as Michel Barnier put it recently, “all-weather” being the new euphemism for “permanent”). It will not be effaced or rendered null by a future trading relationship. It is what it says: a backstop, a perpetual insurance policy ensconced in international law that will come into play if ever we want to change our future trading arrangements in a way that could be judged by the EU to necessitate a “hard” land border between the UK and the Republic of Ireland. The EU thinks they have made this sufficiently clear and they look in bafflement at British interlocutors when they say there must be an end-date to the backstop!

In short their view is that Great Britain (not the United Kingdom) can strike any reasonable trade deals it can manage, with the EU or with other countries, but that, if we do so, we must leave Northern Ireland behind in the Customs Union and large parts of the Single Market, permanently deprived of a say in substantial parts of the laws affecting it, and with a goods border in the Irish Sea.

And since no British Prime Minister will ever propose abandoning Northern Ireland (unless it freely and lawfully chooses to join the Republic under the terms of the Good Friday Agreement), the whole UK will be trapped in perpetual subservience to the EU, tied to their rules and laws and having no say in them. That is what signing it means. Like a virus, the backstop may lurk in the marrow for many years unnoticed, but it will pop out if ever we seek to make a real break for freedom. Properly understood, it destroys the notion of some Brexiteers that surfaced in mid-year that we can “get out and fix it later”. We can’t fix it later: not while maintaining our territorial integrity.

If that is the price of a “deal”, clearly we must go for No Deal. But there are in fact two deals: a Withdrawal Agreement, as envisaged by Article 50 and a future trading relationship, formal talks on which will not begin before we leave. We would do well to split them. We can certainly offer a Withdrawal Agreement acceptable to us, but uncoupled from a deal on the future relationship.

Old-fashioned diplomats, going into negotiations, always sought to avoid being in the position of the party seeking something: the demandeur in diplomatic parlance. Our weakness in the negotiations is that we are desperately seeking something and the EU, through canny sequencing of negotiations (in which we lazily and stupidly acquiesced), has managed to make out that it is not. The only way to break out is for us to cease to be the demandeur. And the only way to do that is to embrace leaving on WTO terms and be willing to do so.

What we need to say now to the EU is that we no longer wish to discuss our future relationship as part of these negotiations. We are under no legal obligation to do so. We will have the default relationship that any independent country has with the EU, just like the USA and many other countries do. But we will sign a Withdrawal Agreement that will involve our paying our dues and agreeing citizens’ rights and the other administrative matters that it has suited both sides for practical reasons to include to date in the draft Withdrawal Agreement.

Our proposed Withdrawal Agreement will also contain a promise by both sides to use best endeavours to have a minimal Irish border and will remit the question of practicalities to technical talks outside the Article 50 process. In effect, we will offer the EU money for their coffers and stability for their and our citizens. We will also recognise that underlying legitimate Irish concerns about the “border” are more fundamental issues about the economic and social future of Ireland and we shall offer to work together to address those.

Our proposed Withdrawal Agreement will not include a “transition” period. But we will offer more money should the EU agree a strictly time-limited one, concluding in December 2020. Both sides can use this to prepare in more detail (if needed) for trading on WTO terms.

It is an offer that will be understood by Parliament and the British people as proposing an exit that is neither “disorderly” nor “chaotic”. With luck, it will maintain a smidgeon of goodwill with the EU and allow closer relations to be rebuilt over time. Crucially it will preserve the independence and the territorial integrity of the UK.

The choice will then be for the EU to accept the proposal or to invite us to leave with No Deal. Our offer will remove EU leverage from the negotiations, since if they refuse it, we will simply leave it on the table. They may come round one day and in the meantime they will look wholly unreasonable, to the world and to their own citizens. And we will be out.

Of course, as I say, this does mean we would leave on WTO terms. But, if the EU decided to accept our payment for a transition period, it is more than possible that a working trading arrangement, if not a full all-UK/EU Free Trade Agreement, could be worked out in that 22-month period. However, we would not be seeking that: we will no longer be the demandeur.

The art of leadership, if you don’t know the answer to the question, is to change the question. That is what the Government needs to do. But to do so, we must be seeking nothing, and so remove the EU’s negotiating leverage.

Here, therefore, is the letter Mrs May should now write to Mr Barnier:

Dear Michel,

We wish to take a new approach to the negotiations surrounding our departure from the EU.

The UK will cease to be a member state on 30th March next year. We no longer seek to conclude a framework agreement with you on our trading relationship with the EU after that date as part of the current negotiations. Nothing in Article 50 requires us to do so. This will mean a degree of disruption to both of us, but we will cope and in due course we will, as separate states, start to repair the web of relationships that geography and mutual interest imply between two neighbouring but independent entities with so much in common. But it is clearly the case that we find it impossible to agree those things now in a way acceptable to both sides, so we need to let time and good sense take their healing course.

As a responsible state, however, we are willing to enter into a Withdrawal Agreement as contemplated by Article 50 to cover matters of common interest relating to our departure in an orderly way and on a mutually acceptable basis.

The Withdrawal Agreement we propose will cover:

  1. The orderly assignment of assets and liabilities between us, to be assessed and adjudicated by an impartial, independent body;
  2. The rights of EU citizens resident in the UK and of UK citizens resident in the remaining EU states, though with no role for EU law within the UK beyond an eight-year time limit;
  3. An agreement to work together in good faith outside the Article 50 process to establish and implement the minimal proportional customs arrangements on the land border between the Republic of Ireland and the United Kingdom consistent with the status that will subsist between us as “third countries”; these discussions will be undertaken by competent technical officials from the United Kingdom, the Republic of Ireland and the EU and, in our view, will build on technological monitoring, electronic filing and remote enforcement. The shared objective will be to have as “invisible” a border as can be agreed; and
  4. Other matters of a practical character already agreed between us.

We note that the current draft Withdrawal Agreement includes payments by the United Kingdom covering our budget contribution during an implementation or transition period of some 22 months from next March. These payments would no longer form part of the Withdrawal Agreement we propose unless the planned implementation or transition period were retained. The United Kingdom would be willing, however, to make those budget contributions if the implementation or transition period were retained on a basis fully consistent with the European Convention on Human Rights and we believe it would help minimise disruption for both parties, should that be agreed.

We are conscious of our legal and constitutional responsibilities under the 1998 Belfast Agreement and are fully committed to their fulfilment. Outside the Withdrawal Agreement, but alongside it, we therefore propose to work closely with the Irish Government and all communities on the island of Ireland to ensure that the legitimate concerns and aspirations of all communities embodied in the Belfast Agreement remain fully credible after Brexit. The assistance of the European Union in facilitating those discussions in support of the peace process would, of course, be welcome.

We hope you will accept these terms. If not, we will, if so obliged, proceed to leave in March without a Withdrawal Agreement.

Yours sincerely,

Theresa

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