The EU is humiliating the UK as Theresa May is left to beg for help in Brussels

I can’t prove it because all the big beasts who flocked to Brussels to do their country down have kept their dealings secret – but all the circumstantial evidence points to a cunning plot to frustrate Brexit, humiliate Britain and negate the wishes of the British people. Here’s how: First, discredit the referendum as the […]

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I can’t prove it because all the big beasts who flocked to Brussels to do their country down have kept their dealings secret – but all the circumstantial evidence points to a cunning plot to frustrate Brexit, humiliate Britain and negate the wishes of the British people.

Here’s how: First, discredit the referendum as the result of ignorance, racism and lies. Second, unleash a campaign of fear about the consequences of leaving. Third, undermine Theresa May’s negotiating position and lock her into a trap by precluding any customs border between Northern Ireland and the Republic. That will keep us in the Customs Union durante beneplacito.

Then collude with Brussels to ensure that the EU is intransigent and refuses all concessions so that Britain’s internal divisions so inhibit its negotiations that there’s no need to make any accommodations. Then the people will become so weary about a never-ending row that apathy, alienation and the Grim Reaper will ensure that they give up their naughtiness. The EU can’t allow democracy to stand in its way.

The plot worked brilliantly. Perhaps too well. Theresa hasn’t even been able to get her pathetic proposals through Parliament, so she’s now forced to return to Brussels and beg for help. Her pleas will be treated with the same contempt as David Cameron’s. Because of the collusion, Brussels has no need even to squeeze out a little more of its usual fudge, to help a failing government.

A strong government would play for time and delay as the only way politicians can deal with an impossible situation. If we did, the EU could extend the two-year notice. But why should it when it feels it’s winning anyway and knows that the British Government dare not leave without a deal?

An effective negotiator needs the power to walk away in reserve. Leaving on WTO terms would allow Britain to form new trade relationships, end the drain of French agricultural protection and the gaping deficit with Germany as well as the huge euro-geld payments to belong to the protective bloc doing the damage. It would hurt them and provide a new source of revenue in tariffs. A devaluation would allow us to overleap any counter-tariffs, and they’d hardly dare to try to damage or punish us.

Yet Theresa has never dared to threaten it, so the final stage of the plot is to create such a fear of no deal – rechristened “crashing out” to make it sound more horrible – that neither Government nor Parliament dares even to mention it.

So, with the enthusiastic support of the Bank of England and the Treasury, Remainers denounce it with every fibre of their vocal chords to ensure that the soft-hearted will flock to a second referendum as the only safe way out of the mess.

A second referendum could allow some of the people to negate the verdict of all the people, though sadly going back to a loving and caring EU won’t be all joy and hosannas. We’d be sat on its naughty step. The drain would continue and could even be increased.

After all, a nation which can’t negotiate its way out of a paper bag, whose parties are disintegrating and whose Parliament can’t decide anything, deserves humiliation. The EU is ever ready to provide it.

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The hunt for certainty

Theresa May has been telling MPs that they need to vote for her deal to give certainty. That has always been hogwash because the Withdrawal Agreement kicks so much about our future relationship with the EU down the road as to be virtually meaningless. In fact, the very existence of the much maligned backstop is […]

Theresa May has been telling MPs that they need to vote for her deal to give certainty.

That has always been hogwash because the Withdrawal Agreement kicks so much about our future relationship with the EU down the road as to be virtually meaningless. In fact, the very existence of the much maligned backstop is proof that it resolves very little and leaves us worse off.

But now, Theresa May’s quest to get her deal through the Commons is even more blighted. When she told Conservative MPs that she intended to step down ahead of the next election, she was probably thinking maybe sometime in 2021. The way some of her MPs, even those who supported her, are talking tonight, she’s got until March.

That adds even more uncertainty into the mix. We have no idea who will lead the negotiations shaping our future relations with the EU. Just imagine that Tory members elect Boris who thinks the chaos of no deal is just what this country needs? At least now we can revert to our membership of the EU but after March 29th we won’t have that safety net.

Leaving the EU under this deal, or any deal that involves future negotiation is like jumping out of an aeroplane with no parachute.

Not exactly strong and stable.

The way out is for May to look not to the right of her party, but across the Commons to build an alliance the other way and put the final decision to the people. If MPs can’t come to a conclusion, it surely has to be up to the people to mark the Government’s homework.

A People’s Vote to remain gives us enough certainty to get on with our lives and start work on the things that really do need fixing – sorting out  public services, tackling devastating poverty and inequality, making sure everyone having somewhere safe and warm to live, dealing with a mental health crisis.

Let’s hope that May sees sense. The 117 ERG obsessives were the tip of the iceberg. All the Tory Remainers who wanted the deal thrown in the sea voted for her today.

There is most likely a majority for a People’s vote to be had. It’ll need Corbyn to get on board.

He really should get on with moving his motion of no confidence. Any competent leader o the opposition would have done so ages ago. If that fails, he will surely have no option than to agree to a People’s Vote…

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

PM Confidence vote – open thread

I’m going to call it now. Theresa May is going to win and win big tonight. That is not going to mean that all is peace, harmony and love in the Conservative Party. Today’s extraordinary scene between James Cleverly and Andrew Budgen showed the toxicity of the atmosphere. .@vicderbyshire: “I gather you don’t necessary want […]

I’m going to call it now. Theresa May is going to win and win big tonight. That is not going to mean that all is peace, harmony and love in the Conservative Party. Today’s extraordinary scene between James Cleverly and Andrew Budgen showed the toxicity of the atmosphere.

Even if Theresa May was going to limp home, winning by one vote, she would stay on. Jeremy Corbyn doesn’t even have the confidence of half of his MPs and he manages it. I just hope that the Tory Remainers have extracted some concessions – maybe even a commitment to a People’s Vote – in return for their support. A convincing win would mean that she didn’t have to pander to the ERG anymore and could seek to build bridges across the House. If she’s told Tory MPs tonight that she isn’t going to contest the 2022 election and she can’t be challenged, then she has nothing to lose by going for a much softer Brexit, perhaps EEA, than she had envisaged. Whether she will take that course, because she’s not known for her flexibility, remains to be seen. I really don’t get why on earth the 1922 Committee thinks it’s going to take them an hour to count around 300 votes but we shall be around till the result is declared.

While you’re waiting, why not read my piece comparing this one with when Thatcher faced the challenge that ended her premiership in 1990.

One thing that has particularly annoyed me is that the Tories have restored the whip to two suspended MPs to enable them to take part in the ballot. One, Andrew Griffiths, has said that he is backing her. The other, Charlie Elphicke, has made no comment about how he is voting.

BBC News just showed a clip of an interview with Michael Heseltine, who of course was the initially successful challenger to Margaret Thatcher. I’d have liked to have heard more about his memories of that time. On May, he said that she may well win tonight, but her problems would not go away as she simply can’t command a majority in the House of Commons when it comes to her deal.

Back in 1990, I was sitting on the edge of my seat watching the BBC News specials in the days before 24 hour rolling news coverage. Mrs Thatcher was at an EU summit and BBC reporter John Sergeant was standing outside the building and she came out to talk to him and he had no idea she was there. On that vote, she won, but not by enough. Although she initially said she was going to fight on, she was gone within 48 hours. Her resignation was announced on the Thursday morning and she then had to go and do PMQs on the afternoon. Back in the day, PMQs was 15 minutes on a Tuesday and 15 minutes on a Thursday.

Feel free to chip in with comments.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

So it looks like there might be a Tory leadership contest after all…..

The rumours have been circulating all evening, but if Kuenssberg and Peston are now saying it, there has to be some plausibility to the story: Hearing that SirGraham Brady has asked to see the PM after #pmqs tmrw, and multiple sources, including senior tories and a cabinet minister, telling us tonight they believe the threshold […]

The rumours have been circulating all evening, but if Kuenssberg and Peston are now saying it, there has to be some plausibility to the story:

Our Layla got a bit over-excited:

How very unlike the Conservative Party to embroil itself in its own self-indulgent civil war at a time of national crisis.

Of course, even if the ERG has managed to get itself sufficiently together to submit the letters and settle on a chosen candidate, maybe even one who has had a haircut recently, getting the letters in is only the first part of the job. They then have to persuade a majority of their Tory colleagues to back them to force a leadership contest. Apparently there was a huge amount of cheering coming from their meeting last night, and we can probably assume that it wasn’t because they were happy that Joe Sugg had got to the final of Strictly.

I can’t help but think back to 1990 when Mrs Thatcher was on borrowed time. Then, her toppling was really exciting. An out of touch, seemingly heartless Prime Minister who had done so much to eat away at the fabric of our communities, who had encouraged selfish and uncaring attitudes, was on her way out. The likely successors, patrician and Tory though two of them were, seemed like an improvement. Then the choice was made by Tory MPs. Michael Heseltine was the challenger and was punished for his disloyalty. Douglas Hurd was the patrician foreign secretary and John Major the Chancellor who, conveniently had wisdom teeth out and a weekend off at the crucial moment and then emerged innocently victorious.

Nobody thought he’d be around for long. Everyone expected the Tories to lose in 1992, but people seemed to like him and his normality and the soapbox he dragged round the country. To be fair, he was and is a genuinely decent human being and that came across to people. Friends of mine who worked in Westminster at the time were shocked to have doors opened for them by Major after he became PM. That said, 10th April 1992 goes down as one of the most disappointing days of my life.

He spent most of his term in office fighting the “bastards” in his own party, the malign, reckless right whose small-state, xenophobic ideology is so toxic. The way they scapegoat entire groups of people is utterly sickening. Today’s lot are so much worse and they could be on the brink of taking over not just the Conservative Party but the country. If one of them becomes PM, they will try to drive us over the No Deal cliff in their honeymoon period. They likely won’t succeed because there is a majority in the Parliament who don’t want that outcome, but the whole thing is a mess.

108 days before we are scheduled to leave the European Union, we should be much more organised and together. Instead the only deal that is currently possible is terrible news for us and there is no alternative plan that unites enough MPs to push it through.

Of course, May might see off any challenge and, newly emboldened, could do what she should have done in the first place and sought allies across parties to find a less destructive solution to the Brexit nightmare. Alternatively, the party might look to a Rudd or a Javid to bring a more stable outcome.

However the electorate for leadership elections is a Tory membership who, more than any other group of people, want Brexit and a hard-as-you-like Brexit at that.

So while there was an element of getting out the popcorn and watching with expectant amusement in 1990, now it’s a lot more terrifying. There is a much greater threat to our future, to our democracy than there ever has been before. If you’re not frightened, you should be. But we should channel that fear into doing all we can to achieve the fair, free and open society, where no-one is enslaved by poverty, ignorance or conformity that we dream of. If there was a time to get our message right, to show what we stand for and who we stand with, it’s now.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

Fundamentally nothing has changed – my take on yesterday’s contemptuous shenanigans

Well, well, well. What a 24 hours it has been. On the one hand there’s so much to say, while on the other I am struggling to summon the words to express a whole range of feelings and emotions about yesterday’s events at Westminster: bemusement, anger, disappointment, confusion and, dare I say it, contempt. Yesterday […]

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Well, well, well. What a 24 hours it has been. On the one hand there’s so much to say, while on the other I am struggling to summon the words to express a whole range of feelings and emotions about yesterday’s events at Westminster: bemusement, anger, disappointment, confusion and, dare I say it, contempt.

Yesterday morning, Michael Gove was on Radio 4’s Today programme vigorously insisting that the meaningful vote on Theresa May’s Brexit deal would go ahead amidst rumours that tonight’s Commons division – following a fourth and fifth day of debate yesterday and today – would be pulled. “The vote is going ahead,” the Environment Secretary said. Even late yesterday morning, Downing Street continued spinning the same line to the media. “The vote is going ahead as planned,” said a No. 10 spokeswoman who, when asked if the Prime Minister was confident of winning the vote, replied: “Yes”.

And yet within minutes reports began to emerge that the vote was indeed being pulled, despite the Commons having already spent 24 hours over three days last week on the debate in which more than 160 MPs had already participated.

And so it was that just after 3.30pm, Theresa May rose to her feet at the Despatch Box to declare that the vote would be postponed, with the following explanation:

“I have listened very carefully to what has been said, in this chamber and out of it, by members from all sides. From listening to those views it is clear that while there is broad support for many of the key aspects of the deal, on one issue – the Northern Ireland backstop – there remains widespread and deep concern. As a result, if we went ahead and held the vote tomorrow the deal would be rejected by a significant margin.”

What struck me as particularly absurd about this statement was that it was clear to me and anyone else paying the slightest attention to current events that there was “widespread and deep concern” about the backstop as soon as the details of it emerged in November and certainly by the time of the debate beginning last Tuesday. Yet she stubbornly concluded:

“I am in absolutely no doubt that this deal is the right one. It honours the result of the referendum… But it also represents the very best deal that is actually negotiable with the EU. I believe in it – as do many Members of this House. And I still believe there is a majority to be won in this House in support of it, if I can secure additional reassurance on the question of the backstop. And that is what my focus will be in the days ahead.”

You can read her full statement here, but there you have it: the aim of the shuttle diplomacy on which she is now embarking and for which the debate and vote were abandoned is to “secure additional reassurance on the question of the backstop”.

As former Northern Ireland Secretary Theresa Villiers writes for us on BrexitCentral this morning, “even more disappointing than the cancellation of the vote was the announcement on what the Government plans to do next” since “Mrs May is not going to ask for the major rewrite of the withdrawal deal which is needed”. She explains the numerous aspects of the draft Withdrawal Agreement about which she has concerns – and on which the Prime Minister evidently has no intention of reopening negotiations.

Senior Labour backbencher Yvette Cooper perfectly summed up the feelings of many of us following proceedings in her intervention following the statement yesterday:

“Nothing has changed in the level of parliamentary concern about the Prime Minister’s deal since last week, but she still sent her Ministers and her official spokesperson out at 11 this morning to say that this vote was 100% going ahead, and yet we still, even now, do not know when she wants to bring this vote back, or even what she wants the deal to be. Does she not realise how chaotic and ridiculous this makes our country look? Given the importance of trust and credibility in this entire process, how can she possibly talk about duty and honour, and faith in politicians, when we cannot even trust the most basic things her Ministers are saying?”

May gave no answer to questions about the length of the postponement of the vote and while it was initially thought there might be a week’s delay, there was widespread speculation last night that it might not come until January.

The chamber was also treated to this astute observation from veteran left-winger Dennis Skinner yesterday afternoon:

“Does the Prime Minister realise that she has handed over power not to people in this House, but to the people she is going to negotiate with over there in Europe? She looks very weak, and she is. They want to be able to demonstrate their power to every other country that might be thinking about getting out of the EU, and she has handed them that power by demonstrating what Britain is doing. The British Prime Minister does not know whether she is on this earth or Fuller’s because of the actions she has taken. Mrs Thatcher had a word for what she has done today. F-R-I-T — she’s frit.”

Frit is of course the Lincolnshire dialect word for frightened or scared that the Grantham-born former Prime Minister once let slip out in the Commons in reference to Neil Kinnock. Those interventions from Cooper and Skinner are both included in our video highlights of yesterday afternoon’s proceedings which I would recommend catching up with here.

What many found confusing over the turn of events is that May arguably missed the opportunity that losing a vote in the Commons would have provided in terms of strengthening her negotiating hand. As of today, there has been no formal rejection of the deal from parliamentarians that she could have used as a tangible bargaining chip in Brussels, where the EU is eager to secure a deal.

And it was a non-vote in advance of which we learnt yesterday that the Government had spent near enough £100,000 during the last week alone on Facebook adverts promoting May’s deal. That’s surely a grotesque abuse of hard-earned taxpayers’ money in anyone’s book.

There was also damning criticism of the procedural trick of pulling the debate three-fifths of the way through, with Tory backbencher Mark Francois offering the following scathing assessment:

“What the Government have done today is shameful. It is a complete abuse of this House. Having been found in contempt recently for the first time in living memory, they have now gone for a “buy one, get one free.” The whole House wanted to debate this. We wanted to vote on it. The people expected us to vote on it, and the Government have gone and run away and hidden in the toilets. People watching this on television will be confused and bemused, and very, very angry at the way their own Parliament has let them down. The Government Front Benchers should literally be ashamed of themselves.”

Also irate was the Speaker himself, John Bercow, who observed from the Speaker’s chair:

“Halting the debate, after no fewer than 164 colleagues have taken the trouble to contribute, will be thought by many Members of this House to be deeply discourteous… many colleagues from across the House have registered that view to me in the most forceful terms.”

A little later he agreed to the request for an emergency debate on the Government’s handling of the issue which came from Jeremy Corbyn and that three-hour debate will be the first main business after question time today at around 12.45pm – although there will not be a substantive motion on which MPs can vote.

In the meantime, Theresa May has headed off on her European travels, with a bilateral meeting taking place between her and Dutch Prime Minister Mark Rutte over breakfast in The Hague this morning before she heads to Berlin for face-to-face talks with German Chancellor Angela Merkel. Then will come talks in Brussels with European Commission President Jean-Claude Juncker and European Council President Donald Tusk later this afternoon. The Cabinet meeting scheduled for this morning has been postponed until later in the week.

But what is she realistically going to achieve from a new round of talks? Tusk announced yesterday that he was calling a meeting of the EU27 leaders as part of the summit already taking place in Brussels this Thursday. But he was also clear that “we will not renegotiate the deal, including the backstop, but we are ready to discuss how to facilitate UK ratification”.

Meanwhile, Irish Taoiseach Leo Varadkar ruled out reopening negotiations around the Irish backstop and insisted the draft Withdrawal Agreement is “the only agreement on the table”.

So the Prime Minister may have bought herself a little more time, but right now it’s hard to see the House of Commons coming to anything other than the same conclusion as it would have done tonight whenever MPs are finally afforded the opportunity to vote on her deal. As someone once said: nothing has changed. But she has lost a whole heap of a rapidly diminishing supply of goodwill and trust as a result of yesterday’s shenanigans.

The above is the text of Jonathan Isaby’s Editor’s Letter in today’s BrexitCentral daily email briefing. To have it land in your inbox every morning, please click here.

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Without a major rewrite – which she’s not demanding – Theresa May’s Brexit deal will remain unacceptable

Yet again, Brexit produced unprecedented scenes in Parliament yesterday. Using a little known provision of parliamentary procedure, the Government cancelled the planned MPs’ vote on the draft EU Withdrawal Agreement. This latest turn of events will leave many people outside the political bubble feeling bemused and worried about yet another twist in the Brexit saga. […]

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Yet again, Brexit produced unprecedented scenes in Parliament yesterday. Using a little known provision of parliamentary procedure, the Government cancelled the planned MPs’ vote on the draft EU Withdrawal Agreement.

This latest turn of events will leave many people outside the political bubble feeling bemused and worried about yet another twist in the Brexit saga.

Even more disappointing than the cancellation of the vote was the announcement on what the Government plans to do next.

I have been calling on the Prime Minister to seek better terms from the EU. But in her statement in Parliament, it became clear that Mrs May is not going to ask for the major rewrite of the withdrawal deal which is needed. It seems that all she will seek is ‘reassurance’ on the so-called ‘backstop’. What form that reassurance will take is not clear, but it seems unlikely that it would involve altering even one word of the 585 pages of the agreement.

The draft Withdrawal Agreement is not the national interest and does not respect the vote to Leave. Even if the Government is successful in achieving some kind of side letter or declaration on matters relating to the backstop, that is not enough to make the deal acceptable.

I recognise the need for compromise as we settle a new relationship with our European neighbours. I strongly believe we need to listen to views of people on all sides, whichever way they voted in the referendum. But right across the spectrum of views on Brexit, there are many who believe that this draft agreement is not the right one for our country.

A legal obligation to pay in the region of £38 billion to the EU without any certainty on our future trading relationship will significantly undermine our negotiating position. We would be giving up a key advantage in the negotiations for little in return.

The so-called ‘backstop’ would do even greater harm. It is not acceptable for the United Kingdom to become a satellite of EU, locked permanently into their regulatory and customs orbit, without a vote or a voice or even an exit door. Even the EU’s trade agreement with tiny Moldova has a break clause allowing them to make a unilateral decision to leave.

Northern Ireland would have an even greater proportion of its laws determined by institutions in which they have no say than would be the case in the rest of the UK. Even listing the titles of those laws takes over 60 pages of the draft agreement.

As the Attorney General’s legal advice confirmed, Northern Ireland would be required to treat Great Britain as a third country in relation to goods coming across the Irish Sea. According to Martin Howe QC, the backstop is arguably inconsistent with the 1800 Articles of the Acts of Union, a core part of our constitution. These state that:

“in all treaties with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as his Majesty’s subjects of Great Britain”.

The Articles also stipulate that all prohibitions on the export of products from Great Britain to Northern Ireland, or vice versa, should cease from 1st January 1801.

Even if the backstop were to be entirely removed (and this is not something the Government has said it will ask for), there would still be unacceptable flaws in the draft agreement. In particular, the significant continuing role for the European Court of Justice would prevent us from restoring democratic control over making our laws. Yet when I appealed to the Prime Minister in Parliament yesterday to try to get the role of the ECJ scaled back, she declined to do so.

If Parliament ratifies this treaty, it will be legally binding and it will apply regardless of any warm words or declarations that might be secured from EU leaders over the next few days.

More people voted to Leave in June 2016 than have voted for anything else ever in the history of British democracy. This was a legitimate expression of the natural desire to be an independent self-governing democracy, the basis on which most countries around the world operate their systems of government.

EU membership means vesting supreme law-making power in people we do not elect and cannot remove, people who in this negotiation process have shown clearly that they do not have our best interests at heart and are prepared to try to inflict punishment on us for the democratic choice we have made.

Brexit is an issue which has divided the country. We need to try find a way to bridge the divisions which the referendum has exposed. But I do not believe that the draft Withdrawal Agreement is the right way forward for my constituency or my country.

I will continue to press the Government to seek changes from the EU to remedy the deal’s fundamental flaws. If the EU refuse. then we must be prepared to walk away without a deal and step up preparation for a clean break Brexit on 29th March on WTO terms.

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Exposed: the legal myths being promoted about the backstop and the Withdrawal Agreement

As the vote on Theresa May’s deal grows near, some people seem to be looking desperately for means of escape from the backstop Protocol – or worse still, persuading themselves that means of escape exist or can be invented which will prove to be a mirage. The Attorney General’s advice to the Cabinet explained the […]

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As the vote on Theresa May’s deal grows near, some people seem to be looking desperately for means of escape from the backstop Protocol – or worse still, persuading themselves that means of escape exist or can be invented which will prove to be a mirage.

The Attorney General’s advice to the Cabinet explained the position with stark clarity. If the UK ratifies the Withdrawal Agreement, we cannot prevent the backstop coming into force, nor escape from it once it is in force, except with the agreement of the EU – and if there is a breakdown in negotiations then it will “endure indefinitely” with no legal route of escape.

Despite the clarity of the advice, some Members of Parliament seem to be convincing themselves – or maybe are being convinced by others – that there could be other routes out of the backstop if only the right amendment is framed in Parliament. It is vital that Parliament should not vote based on a mistaken understanding or wishful thinking about the legal situation. So some of these ideas need to be examined very carefully.

We can get out of the backstop Protocol by arbitration

There is a clause in the Withdrawal Agreement which commits the UK and the EU to use “best endeavours” and “good faith” to agree a future trade treaty which would replace the backstop. 10 Downing Street were publicly arguing that this could be enforced against the EU by arbitration. Conservative Party Chairman Brandon Lewis described the “best endeavours” obligation as a “very high legal bar” in a teleconference call with Conservative Party activists.

But the Attorney General’s advice to Cabinet explains with great clarity why it is “highly unlikely” that the EU would conduct themselves in such a way as to be vulnerable to an adverse arbitration finding. The clause does not require the EU to set aside its own interests or propose terms which the UK would like or find acceptable; “all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours”.

So the Government and Party machines have been pushing in public legal arguments which the Government’s internal advice reveals they know to be rubbish. It is regrettable that Theresa May’s desperate political struggle to sell her deal to a sceptical Parliament, Party and country has gone beyond the realms of normal political spin and exaggeration into the territory of relying on misrepresentation of the legal consequences of the deal.

Now that this illusion about good faith arbitration has been put to bed by the publication of the Attorney’s advice, it is worrying that credence is apparently being given to other mistaken legal perceptions.

Vienna Convention and fundamental change of circumstances

An amendment to the Government’s motion has been tabled by Sir Edward Leigh. This “notes that the Vienna Convention on the Law of Treaties makes it absolutely clear that a sovereign state can abrogate any part of a treaty with an international body in case of a fundamental change of circumstances since the Treaty was agreed; notes that making the Northern Ireland backstop permanent would constitute such a fundamental change of circumstances; and therefore calls for an assurance from the Government that, if it becomes clear by the end of 2021 that the European Union will not agree to remove the Northern Ireland backstop, the United Kingdom will treat the indefinite continuation of the backstop as a fundamental change of circumstances and will accordingly give notice on 1 January 2022 to terminate the Withdrawal Treaty …

In fact Article 62 of the Vienna Convention makes it absolutely clear that a fundamental change of circumstances cannot be used to excuse a State from complying with its treaty obligations, except in the most limited and extreme circumstances which certainly do not apply here. If the negotiations between the UK and the EU deadlock in the way envisaged in the Attorney General’s advice, that doesn’t even count as “a change of circumstances”: it is just one possible way in which the terms of the treaty pan out, not a change in circumstances external to the treaty. Even if you call it a change of circumstances, it cannot be relied upon to excuse non-compliance with the treaty because it is “foreseen by the parties” at the time of conclusion of the treaty.

The Attorney General’s advice (rightly) does not even mention this Vienna Convention argument as a possible route out of the deadlock, because it is a complete non-starter. It is a matter of puzzlement and considerable concern that Sir Edward Leigh and his colleagues have somehow been given the impression that a notice of termination could be given on this ground on 1 January 2022 as suggested by the text of their amendment.

Can there be a Parliamentary lock on the UK entering the backstop Protocol?

This suggestion arises from remarks by the Prime Minister on the BBC Today programme on 6th December, and the tabling of an amendment by Sir Hugo Swire and others which is billed as giving Parliament control over the coming into force of the backstop Protocol.

The wording of this amendment is long and involved, but the fundamental problem is that the United Kingdom under the treaty has no “lock” against the backstop coming into force. For international law purposes, Parliament is an organ of the United Kingdom and therefore cannot exercise any greater powers than are allocated to the UK under the treaty.

Confusion is caused on this point by the domestic law doctrine that Parliament can make or unmake any law, including in cases where that would cause the UK to be in breach of its international treaty obligations. But breaching international treaty obligations is a grave matter and it is therefore extremely doubtful if Parliament were given a theoretical right to block the Protocol that it would ever be exercised.

The amendment asks that Parliament be able to approve the commencement of the powers implementing the backstop. Parliament has that power anyway, since an Act of Parliament will be required to give effect to the Protocol inside the United Kingdom. In theory as a matter of UK law, Parliament could refuse to pass that Act. But if the backstop comes into force as a matter of international law, Parliament would have no choice but to legislate and to approve commencement of the powers, unless it were willing to put the UK into overt breach of its obligations under international law.

The amendment also calls for a legal duty on the UK Government “to have an agreed future relationship” or other replacement arrangements for the Protocol one year after it comes into force, and an assurance by the EU that “both parties intend to agree” by that date.

That is an assurance which the EU can easily give, and no doubt will give in a stage-managed and choreographed way, but which is completely meaningless in practice. Saying that they intend to agree does nothing to stop the EU from holding out for terms which are totally unacceptable to the UK, and blaming the failure to reach agreement on the UK’s intransigence in not submitting to their demands. Likewise, a legal duty on the UK Government to agree a future relationship by a certain date is completely meaningless, since it would only be possible to reach an agreement if the EU were to offer acceptable terms.

Unfortunately what this amendment contains is a mixture of legal nonsense in the form of meaningless or unenforceable legal duties and assurances, coupled it would appear with a good dose of wishful thinking or even self-delusion.

The UK has a ‘choice’ about whether to enter the backstop

The Prime Minister claimed in her interview on BBC Radio 4’s Today on 6th December that it was “not automatic” for the backstop to come into effect, and that the UK has a “choice”. This is only true in the sense that the backstop will indeed automatically come into effect, unless the EU is willing to do an acceptable deal with us before the end of the transition period, or unless the transition period is extended.

The limited element of “choice” which the UK has is whether to extend the transition period in order avoid the backstop coming into force for a time. That defers but does not solve the problem of the backstop automatically kicking in, at great cost in terms of money and greater cost in terms of keeping the UK under EU laws in a state of vassalage for a longer period. The UK would have no vote or veto on regulatory changes to EU rules which could cause severe damage to the UK financial services industry, and the risk of this kind of damaging regulatory attack against UK interests would go up and up the longer the transition period is extended.

Even the choice to extend the transition period is not unfettered. Under Article 132, a decision to extend the transition period is by the Joint Committee. This means that the EU and the UK must both agree to the extension within that Committee. Under Art.132(3) that decision must deal with a number of matters including establishing the amount of the UK’s contribution to the EU budget.

That is rather like having an “option” to buy a house which does not specify the price, allowing the seller to charge what it likes if the option is exercised. If the UK were for whatever reason desperate to extend the transition period and so defer (but not avoid) the backstop, the EU would have us completely over a barrel on the financial payments.

The UK now has a “choice” to avoid the backstop, by a very simple means. That is to reject Theresa May’s deal.

The Grieve amendment allows Parliament to take control of Brexit

It has been widely reported in the media that Dominic Grieve’s amendment would allow Parliament to take control of the negotiations with the EU after Theresa May’s deal is rejected, or even “stop Brexit”. This is not the case and these suggestions may be attempts to induce Brexit-supporting MPs to back the deal out of misplaced fears of what a Remain-dominated Parliament might do.

The amendment does not change any law. It simply waives a rule in the Standing Orders of the House of Commons which would prevent amendments being made to motions before the House when the Government reports its future intentions. But a resolution of the House of Commons does not, except where specified by statute or in very special circumstances, have any legal force. It cannot amend any law. It cannot direct the Government in the exercise of its foreign relations powers as a matter of law. Any effect it has in that context is political only.

Leaving on 29th March 2019 without a deal is the default course of action which is now hard-coded into the law. Any alternative route – whether a different deal with the EU, an extension of the Article 50 period, a referendum, or (most radically) a withdrawal of the Article 50 notice – would require the active cooperation of the Government in all cases, and in almost all eventualities the passage of a Bill through both Houses to Royal Assent between now and 29th March 2019.

Therefore Brexit-supporting MPs who do not think that this deal is in the national interest should not be deterred from voting against it by the Grieve amendment, or by implausible claims by the Prime Minister that rejection of her deal might lead to “no Brexit.”

Conclusion

Members of Parliament would be well advised not to accept any assertions about the legalities of the deal which emerge directly or indirectly from the government machine, without first obtaining independent legal advice.

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Why I, a staunch Brexiteer, support the Prime Minister’s Withdrawal Agreement

In the face of a rigidly ideological, hard-left Labour Party, it is the duty of all Conservatives to embrace pragmatic political thinking in order to maximise real-world policy benefits. When it comes to Brexit, I believe that means backing the Prime Minister’s proposed Withdrawal Agreement in the Commons vote this week. Put simply, there is […]

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In the face of a rigidly ideological, hard-left Labour Party, it is the duty of all Conservatives to embrace pragmatic political thinking in order to maximise real-world policy benefits. When it comes to Brexit, I believe that means backing the Prime Minister’s proposed Withdrawal Agreement in the Commons vote this week. Put simply, there is no viable alternative; voting down May’s deal could throw the entire Brexit project wildly off course.

No Deal is not a plausible option. I do not make that statement as a Remainer who professes through gritted teeth to have accepted the referendum result as ‘the will of the British people’ but will lurch towards any opportunity to keep the UK as closely aligned to the EU as possible. Rather, I have long touted the benefits of an independent trade policy, unilateral immigration controls and true parliamentary sovereignty. Had I been of age in June 2016, I would have voted to leave the EU. I truly believe that the best way to grasp the opportunities presented by Brexit is by implementing the terms of Theresa May’s Agreement.

It seems to me that the key arguments presented by proponents of No Deal tend to wither under scrutiny. Whilst the notion of a ‘clean break’ might sound attractive in theory, when it comes to politics – “the art of the possible” – clean breaks are almost never desirable. If we were to leave the EU without a deal next March, British business would suffer immensely in the short term because of chaos at the ports and the instantaneous evaporation of any and all frictionless trade, thereby infringing on our ability to do trade deals elsewhere. Perhaps most devastatingly, a destructive hard border of one form or another would wreak havoc in Ireland. As much as one might resent the legacy of Tony Blair, tearing up the Good Friday Agreement would be like putting a hard border behind the nose to spite the face, to misquote Saint Ebba.

The most common rebuttal to this argument is that temporary measures could be put in place to ease the transition. Economist Ruth Lea, for instance, insists that deals would be done to avert chaos in the short term. Similarly, Dominic Raab talks enthusiastically of a so-called ‘managed No Deal’. The rhetoric of No Deal is loud and proud until it comes to inconvenient realities, when it seems that its feasibility suddenly comes to rest on the implementation of deals, which rather defeats the point. One is inclined to suggest that these deals could be agreed in advance and combined into some form of Withdrawal Agreement that could be put to a vote in the Commons.

The idea of a managed No Deal is a contradiction in terms. No Deal is, by its very definition, unmanaged, and that is precisely why it cannot work. It goes against every fibre of my political being to side with the Europhiles against the Brexiteers on this, but it seems that Corbyn’s ideological politics has had such a momentous effect on the climate of our discourse that even hardline Conservatives have become so idealistic that, having spent their entire careers campaigning for Brexit, they now find themselves denouncing it as it sits in front of them.

The consequences of No Deal, if it were to happen (which appears increasingly unlikely), will rest on the heads of those who voted down the proposed Agreement. Of course, some preliminary mitigating measures have been taken on both the British and European sides but, as the Government’s incessant PR machine has been saying repeatedly for the past eighteen months, nothing is agreed until everything is agreed.

If it turns out that, in the end, nothing is agreed (i.e. No Deal comes to the fore) the Conservative Party risks consigning itself to electoral oblivion for the foreseeable future. Barely three years ago, the UK’s third biggest party signed its own death warrant via an innocuous policy on tuition fees. If the Tory Party suddenly decides that it disagrees with itself on Brexit and causes us to crash out of Europe as a result, the consequences would be unimaginably grave, in the long term as well as the short.

If No Deal is out of the picture, what are the alternatives? Super Canada? Norway plus? Iceland minus? Lapland squared? The bandying about of totally unattainable hypothetical alternative deals is counter-productive and farcical. The Prime Minister’s Agreement is the only one that achieves all the required outcomes from Britain’s withdrawal from the EU. It is a remarkable exercise in pragmatism.

Renegotiation of the Agreement is clearly a fantasy best left to those on the Opposition benches. Even so, there is no other course of action that solves the Irish border problem. As the Prime Minister has pointed out time and time again, every conceivable withdrawal agreement must have a backstop element. I was fascinated by a remark from a Remain-voting Tory MP recently that Brexiteers’ apparent shock and horror when the draft Agreement was published last month seemed almost entirely artificial. For anyone who had been following Brexit, there were no major unexpected concessions at all.

The backstop solution is ingeniously designed for the mutual benefit of us and the EU (though mainly us) so that we essentially have access to the Customs Union that is free from both cost and Single Market immigration, an arrangement undoubtedly much coveted by many of our neighbours. It is not in Brussels’ interest to ‘trap’ us in the backstop for that reason, as well as the fact that their bad faith would be visible to the whole world and their trading reputation would be irreparably damaged.

The other major achievement of the backstop is that it negates the ludicrous ‘backstop to the backstop’ scenario. If a backstop needs a backstop, it is not a backstop. Calls for the insertion of a unilateral withdrawal clause are fatuous; I struggle to believe that all the Brexiteers who lament the lack of such a clause fail to understand that its presence would defeat the very point of the backstop. A safety net is of no significance if it can be yanked away at any moment. There is no feasible backstop-less withdrawal agreement, real or hypothetical. The inevitable conclusion is that many of the Prime Minister’s critics had already made up their minds to resolutely oppose her deal and latched onto the backstop as a means of doing that, despite it being cataclysmically unwise (assuming one actually wants Brexit to happen).

Somebody commented to me recently that the language surrounding the Withdrawal Agreement is highly misleading; it is just that, an agreement, not a ‘deal’ as it is so often called. Given the uproar it has provoked, one would be forgiven for thinking that it pertained to Britain’s long-term relationship with the EU, rather than merely the terms of our departure. The doomsday predictions of an impending government collapse which seem to re-emerge with a renewed vigour almost hourly make the Agreement seem much more consequential than it truly is. Canada+++ is a very good post-Brexit option. The Political Declaration is evidently mere bluster; the true negotiations for the future relationship have not yet got underway in earnest. They have nothing to do with the Withdrawal Agreement.

History will look back on Theresa May’s Withdrawal Agreement as an impressive political feat: she has emerged against all odds bearing an Agreement that is not only workable but ticks all the necessary boxes. That there has been a stark lack of sincere support for it from outside her government staggers me. The Financial Times clenched its jaw and reluctantly endorsed the Agreement, though at great pains throughout to stress that it still believes Brexit is “an act of national self-harm”. On the other side of the debate, Tim Montgomerie takes the line: “I know it’s rubbish, but it’s the best we’ve got” in his justification for backing the deal. The defence offered by both sides is hardly a ringing endorsement.

Providing a comprehensive analysis of the 585-page Withdrawal Agreement in a space such as this is an impossibility, but I believe I have covered the key points. I hereby wish to buck this depressing trend by humbly offering my whole-hearted, enthusiastic support for the Prime Minister’s Withdrawal Agreement. It is a commendable achievement in every sense.

Photocredit: ©UK Parliament/Jessica Taylor

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The Withdrawal Agreement seriously risks compromising national security

I believe those concerned with UK defence should be wary of supporting the EU Withdrawal Agreement proposal that is before Parliament for the reasons I set out below. You may be aware of an issue I have identified with the Withdrawal Agreement that could seriously affect our defence manufacturing industries and our sovereign ability in […]

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I believe those concerned with UK defence should be wary of supporting the EU Withdrawal Agreement proposal that is before Parliament for the reasons I set out below.

You may be aware of an issue I have identified with the Withdrawal Agreement that could seriously affect our defence manufacturing industries and our sovereign ability in defence – namely that much of our UK defence manufacturing industry would not sufficiently be exempt from state aid provisions as it currently is under the EU treaties, if we enter the “backstop”.

I have raised this in the House of Commons with the Prime Minister, the Home Secretary and the Secretary of State for Defence, in the International Trade Committee with the Secretary of State for International Trade, and in joint session of the European Scrutiny Committee and Defence Committee with the Minister for Defence Procurement. In answers, so far I have only been told that the official advice is that they don’t think there is a problem, or that they are not aware of the issue.

Apologies for the complex legal detail below but it is necessary given the cross provisions of the Withdrawal Agreement to set it out in detail to show how exactly my concern arises, from which I have not yet been dissuaded. At the end I include what seem to me to be the very possible practical effects.

In the Northern Ireland protocol of the Withdrawal Agreement (the “backstop”), there is not any (or any adequate) security exemption for a state aid given to a GB (i.e. the UK minus NI) undertaking which might affect trade with the EU. However, there is with respect to state aid given to a Northern Ireland undertaking.

The NI Protocol in the WA distinguishes between:

  • (a) state aid that might affect trade between NI and the EU (Article 12(1) and Annex 8); and
  • (b) state aid anywhere in the UK designed to maintain a level playing field between the UK and the EU (Article 6(1) applying Annex 4 Article 7(1) which in turn applies the EU state aid legislation listed in Annex 8 to the UK in respect of measures which affect trade covered by Annex 2 i.e. within the backstop customs union).

Article 15 of the Protocol applies Articles 346 and 347 of TFEU (the security exemption) to “…measures taken by …the United Kingdom in respect of Northern Ireland.” This would only benefit aid given to an NI undertaking. This should in practice cover (a) above.

I can find no similar provision in respect of state aid described in (b). It might be argued that the list of EU state aid legislation is implicitly subject to Articles 346 and 347. This is not convincing given that other Treaty Articles are listed in Annex 8.

Finally in explanation of Article 2(4) of Annex 2: this Annex sets out the high level rules applicable to trade in goods between the UK and the EU and between the customs union created by the Protocol and third countries (where so provided), and concerns matters which pertain to requirements for tariffs on imports (the EU’s common external tariff) and the EU’s right to make policy and treaties in that respect (the EU’s common commercial policy). Article 2(4) echoes, but is slightly different to, Article 346 and 347 of TFEU. For example, it applies to production and trade in arms, munitions etc. only “as is carried out directly and indirectly for the purpose of provisioning a military establishment.” This is consistent with external tariff barrier requirements being able to be waived for national security reasons.

Annex 2 does not apply to state aid rules applicable to GB undertakings and designed to provide a level playing field – given the specific provisions of Annex 4. Nor does Annex 2 Article 2(4) provide a general security exemption from state aid. However the existence of Article 2(4) highlights the absence of anything similar in Annexes 4 or 8; which might be taken as an indication of a deliberate decision not to provide a security exemption in these latter Annexes. It looks like this may go beyond sloppy drafting.

Parties could have a strong case against state aid being allowed to GB defence industries if the UK were to be in the backstop condition of the Withdrawal Agreement, and the 123,000 jobs in that industry which benefit from UK Government support would therefore be hostage to negotiation of any future Defence and Security or trade agreements between the EU and UK, at a time when the EU’s declared intent is for centrally planned EU forces, operations and defence industrial capabilities.

The meaning of the above mentioned provisions would be interpreted by the European Court of Justice, not UK courts, as per the governance terms of the Withdrawal Agreement.

The practical effect is that defence companies and the UK Government will have to consider whether anything they do together could be considered state aid and make applications to have it permitted. The EU Commission could take cases in UK courts on whether state aid had been applied to anything conceived as qualifying support by the UK Government, and those UK courts would need to refer interpretation of the Withdrawal Agreement and related EU law to the European Court of Justice. Hence our defence capability would be under the direct influence of jurisprudence of the ECJ, which we know takes a purposive approach to evolving the meaning of legislation.

I therefore believe the Withdrawal Agreement is a serious risk and compromise to national security and the UK’s sovereign ability in defence. Only on negotiating further agreement terms with the EU would GB be released, and the EU have already shown how they are prepared to mess with the UK on defence issues such as Galileo, even as the UK Government speaks of the “closest possible” future defence cooperation.

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Why the EEA Model is worse than the Prime Minister’s deal

As Parliament debates the Withdrawal Agreement, there have been calls for the UK to continue its membership of the European Economic Area (“EEA”) as an interim step before progressing to a more usual free trade agreement arrangement.  This has been called ‘Norway then Canada’. It is also now emerging as a potential Plan B in […]

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As Parliament debates the Withdrawal Agreement, there have been calls for the UK to continue its membership of the European Economic Area (“EEA”) as an interim step before progressing to a more usual free trade agreement arrangement.  This has been called ‘Norway then Canada’. It is also now emerging as a potential Plan B in case the Prime Minister’s (PM) deal fails in the Commons. We first look at the mechanics by which continued EEA membership might be achieved, and then go on to describe the reasons why remaining as a member of the EEA even for a short period would be damaging to the UK. Far from being a compromise, the EEA option even without the Customs Union attachment (the plus of Norway plus) is even more restrictive for the UK than the PM’s deal.  

Liam Fox testified to this effect in the International Trade Committee on December 5th where he stated that “In many ways it closer to EU membership than the agreement being put forward today. I find it unbelievable that those who can’t agree with the current agreement put forward by the government would want EEA or EFTA status.”

There are three variations to the EEA model:

    • Not joining the European Free Trade Association (EFTA) and ‘continuing’ as party to the EEA Agreement
    • Joining EFTA, and then becoming party to the EEA Agreement as an EFTA member
    • Joining EFTA as an Associate Member and then becoming an EFTA party to the EEA Agreement.

The EU would still claim all of these options require the UK to remain in a customs union with the EU to avoid a ‘hard border’ in Ireland.

All of these options require other parties to concede to the UK’s actions, whether in joining EFTA, or renegotiating the EEA agreement.

But time is running out for these negotiations and there is currently little evidence of political will.

Variation one (non-EFTA) can be discarded as the EEA Agreement is explicit about only applying to EFTA or EU members.  This is not easily altered as it is built into the ‘institutional provisions’ of the EEA Agreement. The EU could still claim there needs to be a backstop in the event that the UK eventually leaves to pursue a ‘Canada +’ deal.  

Variation two precludes membership of the Customs Union, as EFTA members must apply to become party to all EFTA Free Trade Agreements (FTA). Article 50 does not give the EU competence to negotiate this with an existing member state. Britain would need to leave the bloc first.

Variation three would require a renegotiation of the EFTA convention, and it would not be guaranteed that a new ‘associate member’ would be allowed into the EEA by the EU. As with option two, Britain would need to leave the EU and then negotiate this.

Even if the legal and political difficulties could be surmounted, all of these options simply delay the process of leaving, creating additional work in the interim for businesses, without dealing with uncertainty over the final arrangements.  The difficulty of leaving current arrangements demonstrates how challenging it would be to move out of EEA membership once in.

Once in, there are also further difficulties:

  • The UK would be unable to end free movement.
  • The UK would not have regulatory autonomy, and this would make any serious trade policy with countries like the US, or Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) accession impossible. This is because the UK would be unlikely to commit to the regulatory provisions of CPTPP given we would not have control over our regulatory system, and any deal with the US would fall at the first hurdle because we would not be able to offer regulatory concessions; especially on goods and agriculture.

 

Part 1 – Getting in

  • The Proposal

This proposal appears to be a rebrand of an idea promoted by some MPs in spring this year: joining EFTA in order to accede to the EEA Agreement. The re-brand proposes that joining EFTA and remaining in the EEA for a time could replace the “implementation period” under the Withdrawal Agreement currently being negotiated by the EU and the UK.  It would enable the UK to negotiate and transition to a more usual state to state free trade agreement with the EU, often called “Canada +”. Variations on this theme include not joining EFTA because our membership of the EEA Agreement will continue as we are a contracting party in our own right, and becoming an ‘associate member’ of EFTA.

EFTA membership (currently comprising Norway, Iceland, Switzerland, and Liechtenstein) does not by itself give continued preferential single market access.  EFTA is a free trade agreement between its parties. The link with the EU for EFTA countries requires signing the European Economic Area (EEA) Agreement, as Norway, Iceland and Liechtenstein have, or negotiating separate bilateral deals as Switzerland has done. For the purposes of this briefing we will concentrate on the EEA route, which its proponents consider to be an off the shelf route to achieving continuity and frictionless trade, as we continue our negotiation for a bespoke free trade agreement.  

 

  • Option 1 – Remaining in the EEA

First, let’s address the variation under which we simply rely on being a member of the EEA Agreement at present and do not give notice to withdraw.  This assumes that because we are named as a party to the agreement, the rights and obligations under the agreement must continue whether or not we are a member of the EU or EFTA.  Given the wording of the EEA Agreement, it is clear that this is not the case. It is specifically stated to apply only to the territories of the EU and the EFTA parties, known as the two pillars – the EU pillar and the EFTA pillar. The provisions that deal with managing and decision making under the agreement, the so-called “institutional provisions” are expressly designed to create a balance between the EU pillar and the EFTA pillar. The EFTA Secretariat is of the view that these provisions would not allow the UK to continue as a functioning EEA party in its own right.  In its FAQs on its website it states the following:

Article 126 of the Agreement on the EEA makes it clear that the EEA Agreement only applies to the territories of the EU, in addition to Iceland, Liechtenstein and Norway. Under the present wording of the EEA Agreement, it is therefore impossible to be a party to the EEA Agreement without being a member of either the EU or EFTA.

Even if the UK government were to change course and seek to claim that the UK’s membership of the EEA Agreement continues unabated by having left the EU, if the other parties don’t agree we would be caught up in protracted negotiation and even potentially litigation.  Given the current state of negotiations, such a change of course would not, one imagines, be popular with the EU and EFTA members.

 

  • Option 2 – Joining EFTA

So why not join EFTA and then accede to the EEA Agreement in the normal course?  This is not an off the shelf model. Membership of these agreements is not available as of right.  It must be applied for and conditions must be met. Although both EFTA and EEA membership can be terminated on 12 months’ notice, neither envisage temporary membership (other than in order to move from EEA membership into full membership of the EU).   It is highly questionable that the four EFTA members, all of whom would have to agree the UK’s accession to EFTA, and then the 27 EU member states who would have to agree the UK joining the EFTA group of the EEA Agreement, would agree such a disruptive process and time consuming negotiation in the knowledge that it would only apply for a period of two or three years.  A more recent iteration of the Norway then Canada model proposed by MP Nick Boles concedes this and proposes that the UK would agree not to exercise its right to terminate EEA membership “while the EU is working in good faith to conclude a new set of agreements that preserve in perpetuity no hard border on the island of Ireland”.  The prospect of ever leaving the EEA in that scenario seems vanishingly small, given that the effort to guarantee no hard border in perpetuity is exactly what has led us to the current impasse as the EU claims there is no way to achieve this without Northern Ireland remaining in its customs union and internal market for goods.

In any event there is not enough time to negotiate EFTA membership and transition to the EEA pillar of the EEA Agreement before 29th March 2019. This would require new negotiation guidelines to be agreed by the EU27 and ratification, by the UK, all the EFTA states, and all EU Member States. Relevant schedules and governance arrangements would all have to be renegotiated if the UK wished to be able to have any special arrangements to reflect our circumstances, for Gibraltar, for example or for the needs of financial services or other sectors.    Even if there were the political will to do so (which seems unlikely for a time limited arrangement), in practical terms the process could not be completed to take effect as a transition. The prime minister of Norway has already indicated that the interim membership approach would not be welcomed by the exiting members, noting that “to enter into an organisation you are preparing to leave at the same time is also a little bit difficult for the rest of us”.

There is a more serious obstacle before any such negotiations could even be contemplated.  The EU’s position is that it cannot negotiate such agreements with an existing member state, as Article 50 does not give sufficient competence and the other relevant provisions of the EU treaties do not cover negotiations with current EU members.  Many commentators consider that the boundaries of article 50 have already been strained beyond its limits by including in the Withdrawal Agreement an ongoing customs union and single market arrangement for Northern Ireland, and even more extending this to the whole of the UK, even on a temporary basis, and even as a backstop.  It would be very difficult for the EU to stretch this further and re-negotiate the EEA Agreement under Article 50 and doing so would almost inevitably be subject to legal challenge, making it risky and uncertain.

This means that to join the EEA, the UK would have to leave the EU with no deal in March 2019 and continue negotiations for the future relationship.  This takes away a large part of the claimed benefits of the EFTA/EEA model, as the disruption from leaving with no deal would already have happened and it would be more sensible at that point to focus on bilateral negotiations with the EU and wider trade policy.

The other critical reason why the EEA route does not resolve the current impasse is that whether it is temporary, permanent or indefinite, an EFTA/ EEA arrangement does not resolve the issues that the EU has raised in respect of the Irish border. EEA membership does not comprise, and in fact being an EFTA member precludes, membership of a customs union, so there would still be customs formalities for cross border trade between Ireland and Northern Ireland.  The Norway Plus proposal which includes a Customs Union removes all independent trade and regulatory policy.

The solution in the draft Withdrawal Agreement includes the whole of the UK remaining in a customs union with the EU. This is incompatible with the EFTA Convention, which prohibits customs duties and quantitative restrictions between members (which the UK could not commit to if it were bound to the EU’s tariffs, quotas and trade remedies) and binds acceding members to apply to become party to FTAs concluded by EFTA Members. The UK would not be able to do this if in a customs union with the EU, it could only enter into FTAs with countries that the EU has FTAs with, and only on the terms agreed by the EU.

 

  • Option 3 – Associate EFTA membership

It has also been suggested that we could work around the need to be an EFTA member to join the EEA Agreement in the EFTA pillar by becoming an “associate member” of EFTA.  This would presumably be intended to allow the UK to be in a customs union with the EU but still an EFTA member for the sake of EEA Agreement formalities. Let us be clear that there is no such thing as associate membership of EFTA.  The EFTA Convention provides for the creation of an association between EFTA and any other country or body in agreement with reciprocal rights and obligations, common actions and procedures.  This is not a form of membership.  It would be open to the EFTA members and the UK to create a form of associate membership if they wished, but this would be a matter of negotiation between them, requiring amendment to the EFTA Convention and they would not be able to compel the EU to recognise such associate status as qualifying for the EFTA Pillar of the EEA Agreement as of right.

While we know that it is in fact possible to attend to these matters without physical infrastructure or the routine interventions at the border, this has not been accepted by the EU side to date. An EFTA/EEA solution does not appear any more viable for the whole UK than a normal (“Canada-style”) FTA is, given the EU’s current negotiating position. The EU’s insistence on the backstop as a commitment that would apply in perpetuity  means that even EEA membership and a customs union would not remove the perceived need for the backstop: the EU would wish to be able to trigger the protections they consider necessary for the Irish border if in the future the UK gives notice to leave the EEA or customs union, or both, and the EU side does not consider that the border arrangements meet its requirements.

Even if it were politically and practically deliverable, the Norway then Canada proposal would make life harder, not easier, for business. It would mean another system they would need to understand, in between EU membership now and fully leaving EU regulation, later.  This would suggest that, even if the EU were satisfied on the Irish border, the eventual move out of the ‘Norway phase’ would be met with as much resistance as leaving the EU is encountering at present, and would in fact never happen. The same cliff edge arguments would be made by the CBI and others if we were ever to choose to leave the EEA, and the political forces in the UK would conspire to ensure that the UK did not trigger the notification provisions.  Once in, it is extremely unlikely that we would leave, especially since being in would eliminate our independent trade and regulatory policy completely so none of the benefits of Brexit could be realised.

Continuity EEA Membership in own right EFTA Pillar UK bespoke EEA Membership EFTA Associate Membership
Is it Available No Yes No No
Is it Negotiable No Possible, but only if not in customs union and likely with with major concessions, for example on fisheries Unlikely Unlikely
Is there Time No No No No

 

Part 2 – Why would we want to be in?

 

  • Control of Laws

What is the EEA? Well according to the EEA Agreement itself, it is an association formed to “promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area”

Already we can see some big clues as to why continuing to be part of this arrangement would not achieve the objective of taking back control of laws, and why, even if intended to be for a short period, it would be damaging to the UK’s interests.  In order to achieve the “same rules” and “homogeneous” conditions, the EEA Agreement provides for the EU to harmonise laws in in-scope fields with the EFTA EEA members. This is monitored by the EFTA Surveillance Authority and enforced through the EFTA Court, which broadly follows the rulings of the European Court of Justice.

EFTA EEA members have to adopt EU laws that are marked as “text with EEA relevance” into their laws.  This is not optional – there is no veto and they have no vote in the European Council or Parliament. Norway’s prime minister has said clearly “We do accept that decisions on the four freedoms are done in Brussels”. It is often claimed that the EFTA EEA countries can shape and influence EU laws as they are consulted at an early stage in the law-making process.  Although the EEA Agreement provides for consultation and communication at the early stages of formulating single market legislation, in practice, as described by the European Parliament, EFTA countries “have little influence on the final decision on the legislation on the EU side”. If an EFTA EEA country does not implement an in-scope EU rule into their law, the EU will take action against them, as Norway found out when it tried to get out of implementing a directive on postal services and was threatened with losing market access for its fisheries products.  As a result, the right of reservation in the EEA Agreement has never been used, and is, in essence, a theoretical construct that allows EFTA EEA states to respect their constitutions and claim that democracy is respected.

This illustrates the severe immediate political costs of even temporary EEA membership without a known end date (which as explained in Part 1 is unlikely to be negotiable so indefinite membership is the more likely scenario, which is of course even worse). Think about how this would work in the context of issues that are important to the UK economy.  EU financial services regulations are “text with EEA relevance” so EFTA EAA members are obliged to implement them. We know that the stated aims of many EU member states to win business away from the UK, and we know that the direction of travel of EU rules in financial services has been towards greater levels of intervention and integration, often in ways that have been detrimental to the UK even while we were a member. So, imagine what EU member states could do with regulation in this area to undermine the competitiveness of the UK market, knowing that the UK us obliged to accept it, with no real voice in the process.  Solvency III? MiFID III? And if our Parliament were to resist, the EU would be able to respond by withdrawing market access not just in financial services, but in unrelated fields like food or automotive. This is why firms and industry bodies in the City have moved on from prioritising passporting rights in the single market. Groups like UK Finance and the CityUK realise that the risks from being regulated from Brussels with no vote or voice is worse for the future of financial services in this country than the loss of passporting rights.

 

  • Control of Borders

Another issue that is of vital interest to the British people is immigration.  Free movement of workers is a fundamental part of the EEA Agreement and EFTA EEA members are subject to all the EU legislation supporting it.  It is unrealistic to suggest that a Lichtenstein-style immigration control could be agreed, or that the UK government could simply make better use of the controls on free movement that are already available.  The movement of workers safeguards are designed to apply in emergency situations. Liechtenstein was able to negotiate an enduring safeguard due to its unique position with a tiny population and mainly rural geography.  It was made clear to David Cameron during his attempted renegotiation before the referendum that the EU does not consider that the UK is encountering any difficulties that would justify deploying such emergency measures.  It is also clear that the existing controls that allow member states to remove immigrants from EEA countries who do not meet the criteria of being a worker or economically self-sufficient cannot be effectively used by the UK unless we introduce registration and identity systems (which would have to be for UK nationals as well as immigrants, otherwise they would be discriminatory) and make access to welfare benefits and healthcare much more rigorous.  These would be serious changes to the way we run the country and, in many respects, would operate directly against the concerns of many voters.

 

  • The Policy Implications

The UK cannot cherry pick its model as a member of the EEA.  The foundational principle of the EEA and its institutions is homogeneity of regulations and their application across the single market.  And the direction of travel is towards more areas becoming more integrated. Iceland’s finance minister recently said “Those that are for integration are stepping up the pace and if that is realised there will be even less tolerance for special implementation in the European Economic Area”. Carving out special treatment for sectors or to deal with movement of workers would mean seeking to reverse this and undermine the principle of homogeneity.  Why would the 30 EEA members agree to unbalancing their relationship and destabilising established structures for the UK, especially if they think we will leave in a couple of years?

The impact of EEA membership on financial services and immigration alone should kill it stone dead (even if the basic argument for democracy and accountability in who makes our laws, and how, are not sufficiently persuasive).  Even if the supporters of this model are right that these matters could be satisfactorily negotiated, for example to give UK regulators a voice in financial services regulation, or by allowing the UK a Liechtenstein-style ‘brake’ to cap immigration, there is no way that they could be negotiated in time to take effect on 30 March 2019. But there’s more – what about the impact on the UK’s international trade policy, which the government still claims to want?

If not combined with a customs union, as an EFTA EEA member the UK would be technically able to negotiate free trade agreements in the way that EFTA members do, either individually or as a bloc.  But the FTAs that EFTA countries have are not the kind of comprehensive and truly progressive deals that the UK would be looking for, in particular addressing services and regulatory barriers, because these matters would remain subject to EU laws so could not be negotiated by the UK with other countries. All of the reasons why the EU and the USA were unable to progress the proposed FTA between them (the TTIP) would still apply, and the UK would be even less able to work through them, so a UK/US FTA, one of the great opportunities from Brexit, would be unobtainable.  If we do not have control of our regulatory system, we could not in good faith sign up to the provisions of the CPTPP on regulatory coherence, and the CPTPP countries would not want to have a member that was unable to engage in deeper liberalisation among members including regulatory recognition. Over this we would have no control. UK accession would be like asking CPTPP members to allow the UK trojan horse to smuggle the EU rule book into the CPTPP, something none of its members would want. Even the Japanese, perhaps the most vocal proponent of UK CPTPP accession, partly on the basis that this would encourage the Americans to come back to the table, will understand that allowing the UK in on this basis would repel rather than attract the US.

 

Conclusion

The EEA option will be hard to get into and likely harder still to leave. The Norway phase would also have to be combined with either a customs union, or facilitations for the Irish border that the EU has as yet refused to accept. Such a mechanism would end any pretence of the UK having an independent trade and regulatory policy.  Once inside, the EEA Agreement would prevent the UK from exercising control over its borders and would give control of important areas of lawmaking in services to the EU without the UK having a vote or real influence. The proposal also does not remove the need for a backstop in the future, should the UK seek to leave, furthering the chances that it becomes an accidental end state. This is unlikely to be politically acceptable, given that the EEA has already been rejected as an end point by the Prime Minister due to concerns over the free movement of people and by the City due to the potential for new regulations to disadvantage our financial services industry.  It would more completely take independent trade and regulatory policy off the table than even the PM’s deal. When we referred to the PM’s deal as the worst of all worlds, we did not anticipate that an even worse construct could be seriously being proposed.

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