A Simpler Explanation

Several months ago I wrote a piece examining what I described as Carole Cadwalladr’s “strange fever dream” of an article concerning the overweening influence of big data analytics on the outcome of Britain’s EU referendum.

To that end, the details that Vote Leave Campaign Manager, Dominic Cummings, has made available are long on hype and short on results. Based on what we have seen to date, the notion that his campaign were “do[ing] things in the field of data that have never been done before” sounds like little more than bluster from a man whose primary talent is self-publicity.

In recent days, proceedings have taken a more sinister turn with another Guardian journalist raising the spectre of Russian influence and maybe even “dark money” (is that different to regular money?, ed.). These are serious allegations. In the circumstances, we can but wait for the outcome of any investigation that follows.

However, the tide of people leaping on this news as means to delegitimise the referendum result need to be rebuffed.

None of this changes the fact that the Remain campaign lost the vote. A majority of the British electorate voted to leave the EU in the most unlikely of circumstances, with the Prime Minister, the Chancellor, the Leader of the Opposition, the Tory Party, the Labour Party, the Liberal Democrats, the Greens, the Bank of England, the Church of England, the CBI, the OECD, the IMF, and even President Barack Obama recommending the opposite outcome. Weighted against that amount of institutional prestige, the “leave” result was, I would argue, far more significant, than the figures 52 percent and 48 percent would ordinarily indicate.

The British have never particularly liked the EU. Even the most ardent Remain campaigners argued that Brussels is in need of “reform” (whatever that means). How or what that reform should be was never spelled out. The Remainers’ primary argument was that EU withdrawal is a risk.

In that regard, they have proved more right than anybody could have known. Certainly, I did not bank on the apparently bottomless ineptitude of the political parties and of large parts of what is called the British establishment (media, academia, trade associations, etc.).

Faced with the reality of EU withdrawal, rather than digging into the details, the respectable media is engaged in a fantastical search for a mastermind or super villain—whether it be in the form of a big data billionaire or Vladimir Putin—to blame for their failures. Maybe this mysterious individual is secretly controlling events from an underground volcano lair somewhere on the moon?

Do journalists imagine that these sub-Bond narratives are an effective substitute for investigation and fact-finding (normally involving nothing much more glamorous than a lot of reading)?

The Occam’s Razor explanation for the behaviour of the appointed campaigns—Leave and Remain—and of our present government is much more down to Earth. The British establishment is presently peopled by large numbers of lazy, ineffectual, and, on the whole, not particularly bright people. David Cameron offered a referendum he thought he couldn’t lose and lost it. Theresa May fought a General Election from which she thought she could not fail to gain seats and lost seats.

Now, we’re being told the serial failures of these inept careerists are a result of dark web magic or Russian money. There is, of course, a more straightforward explanation.

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No Means No

What do people mean when they talk about the UK walking away from the Article 50 negotiations with “no deal”? And what about the phrase “no deal is better than a bad deal”?

Do they mean that, should the UK and the EU arrive at (what they deem to be) a bad deal then they would rather the UK have no formal agreements with the EU whatsoever? Or do they mean something else?

These are important questions and to date the media has been entirely remiss in not seeking clarification (from ministers in particular) regarding what they mean when they say “no deal”.

Even more frustrating than the politicians, in many respects, are the credulous apologists who seek to explain away their deceits.

Words have meanings and, if you depart from standard definitions, you are practically guaranteeing that people will attempt to exploit your weakness. The word “no”, for instance, denotes a nullity. In certain respects, it is difficult to conceive of a more straightforward concept. The distinction is binary. Yes and no. On and off. One and zero.

If this semantic game sounds drearily familiar, that is because the Remainers played exactly the same semantic game during the referendum, claiming that Norway has “no say” in the making of Single Market rules. A lie, every bit as brazen as Cummings’ £350 million, and one with far more institutional support.

No deal is similarly nonsensical. When pushed, Dr Lee Rotherham, for instance, explained that “no deal” does not mean no formal agreements whatsoever, only that the deal signed under a “no deal” scenario would be limited to necessary bureaucratic and technical agreements.

Sorry, Lee, but an alternative deal is still a deal. Using the words “no deal” to describe that scenario is, to use a technical term, bullshit. People who refuse to use accurate terminology—to the point of persistently misusing such a simple word as “no”—should not be indulged.

Whether it is Stronger In referring to the EU as “Europe” or Michael Gove talking about remaining in a non-existent “European free trade zone”, people would be better served if they were less tolerant of these semantic games. Perhaps we could begin by insisting that “no means no”.

Saying The Unsayable

One of the few things on which I have heard practically every referendum campaigner agree is that the appointed campaigns were appalling. Outside of a tiny claque of legacy media pundits, who apparently know no better, Vote Leave and Stronger In have been slammed.

Given that context, why is it that Vote Leave’s £350 million claim is regarded as absurd (and worse) while Stronger In’s widely broadcast and just as false, “pay but no say” slogan is still regarded as credible?

If you like to rely on the researchers and university professors who work for traditional institutions of higher learning to provide you with reliable and accurate information, you may wish to look away now.

In a piece published by Prospect magazine, which, prior to the referendum, told us that Britain would not even be in the room during the Article 50 talks, Anand Menon and Jonathan Portes, of the UK in a Changing Europe initiative, write as follows:

The problem here is obvious—any “off the shelf” model looks, in economic terms, very like existing EU membership. And in political terms it looks even worse: during the referendum campaign, both Remain and Leave dismissed—crudely but not inaccurately—the “Norway model” as “pay but no say.” And indeed EEA membership implies not only accepting free movement, but also acceptance of EU law, and continued payments to the EU.

For people of this stature to lend legitimacy to the ridiculous “pay but no say” lie is, frankly, offensive.

Let us begin with the “no say” part.

Anybody who has followed this blog for more than five minutes (seconds?) will know that the assertion that Norway has “no say” in the framing of Single Market rules is a particular bugbear of mine. The reason is simple. The assertion is false. Not only is it false, however, it is trivial to disprove.

The high-level description of the “decision-shaping” procedures, which are part of the EEA agreement, accessible on the EFTA website, is sufficient evidence to affirm that Norway, Iceland and Liechtenstein—the EFTA members that participate in the Single Market via the EEA agreement—have a say in the formulation of EEA (i.e. Single Market) rules.

Now, at the risk of labouring the point (too late!, ed.), I am going to go over that one more time, even more slowly. Note, I am not addressing whether EFTA members have as much or less than or more say than EU Member States in the formulation of Single Market rules. What concerns me here is the binary distinction between “a say” (some input) and “no say” (no input).

How much say Norway and the other participants in the EFTA pillar of the EEA agreement have or do not have is a debate that can only happen once it is acknowledged that those countries do, without any shadow of a doubt, have a say .

If we are going to understand one another, we must first establish a factual basis for our interactions. The phrase “no say” denotes a nullity, as in none, and, by definition, “no say” cannot accurately describe countries that participate in technical committees and consultation exercises as part of the framing of Single Market rules.

That rather low bar having been met, it is also important to note that the EEA acquis—those parts of the EU acquis that are deemed “EEA relevant”—is roughly one quarter of the size of the EU acquis. That this fact is omitted from the article above allows for further confusion regarding the phrase “acceptance of EU law”. How many people know that the EFTA/EEA arrangement would allow the UK to jettison roughly three quarters of EU law while continuing to have a say in the framing of EEA relevant legislation? Far fewer than ought to be the case, I would suggest, owing in no small part to the misrepresentations of EFTA/EEA perpetuated by leading academics.

That is without even mentioning escape from Article 34 and the “common position” that EU Member States are bound to adopt on a large number of world governing bodies, operating above the level of the supranational EU. Not to mention Menon and Portes’ faux pas regarding the “pay” part of the “no say” slogan (a subject for another blog).

In light of the trivial amount of knowledge needed to debunk the “no say” lie, one is minded to ask, how did this vapid deception come to be not only repeated but reaffirmed by a pair of leading academics and supposed subject-matter experts, writing for a respected political journal? Do they not know that the countries that participate in the EFTA pillar of the EEA agreement have a say in the formulation of Single Market rules? If they don’t know, what else have they got wrong?

More to follow.

Lowered Expectations

I do not remember a time when I did not regard Britain’s EU membership as important. To be very honest, though, it was only in the run up to last year’s EU referendum that I made a concerted effort to marshal my arguments and come to an understanding of the differences between, for instance, the European Free Trade Association (EFTA), the European Economic Area (EEA), the EU customs union, the European Court of Justice (ECJ), the European Commission, the European Parliament, the Council of the EU, and the European Council.

I could now provide a basic definition of each of those terms, along with some historical context and a broad overview of how those bodies relate to one another.

Even reading that last sentence back, I can imagine some eyelids are already beginning to droop.

The administrative structures that govern the EU and EU relations with the broader European political sphere are not a particularly engaging topic, unless one has a reason to learn about and attempt to understand them. For me, the EU referendum was that reason. Politics is not a science, people of good faith can arrive at different conclusions, but a firm grounding in the facts is nevertheless vitally important, especially when it comes to thinking about practical policy options.

The ideals that motivate people are important too, but, presented with the opportunity of a (possibly) once-in-a-lifetime referendum vote, I did not only want to recommend to people that they cast a vote to leave, I wanted, in so far as I was capable, to describe to people how leaving the EU could be done, taking account of as many of the trade-offs as foreseeable.

Playing at leaving the EU would not be good enough, faced with a legacy media and political parties that would attempt to frustrate any serious approach, the people, the electorate themselves, would need to engage with a level of detail that was not ordinarily part of the political picture.

That, however, was the last thing the established players would tolerate. The “leave” campaign was co-opted by a group of right-wing Tories who ran a campaign so bad that even now their idiot slogans are an albatross around the neck of anybody trying to make a more reasoned argument. Allied with the oafish Vote Leave crowd were the snobby Remainers, never missing a chance to condescend. And that, by a rather circuitous route, brings us to the topic of academics, and their contribution to the post-vote debate.

Today’s case study is a video published as part of the Cambridge University “Turbo talks” series, featuring Professor of European Union Law, Dr Lorand Bartels, discussing the trade aspects of the ongoing Article 50 negotiations. Reflecting upon what Bartels tells us is a “somewhat confusing” statement made by the UK Chancellor, Philip Hammond, Bartels affirms:

The whole point of being in a customs union is to have completely frictionless trade. Customs unions are essentially what you do in order to get rid of customs border posts.

Now, there is, indeed, a great deal of confusion regarding the EU customs union. Some politicians, not to mention members of the press, persist in proposing that the UK could remain within the EU customs union after EU withdrawal, apparently unaware of the fact that the EU customs union is only open to EU Member States.

In certain respects, the idea that the UK could remain in the EU customs union after EU withdrawal is the Remainer mirror of the Leaver idea that the administrative structures, which assure UK regulatory equivalence within the union, could forestall the need to agree new mechanisms for assuring regulatory equivalence between an independent UK and the EU once the UK ceases to be an EU Member State. As I implored people to understand, EU withdrawal means EU withdrawal; the biggest shortcut the UK could take with respect to trade would be to seek to remain in the Single Market by rejoining EFTA.

With respect to Bartels’ notion that the essential aspect of a customs union is the elimination of customs border posts, it is important to note that while the EEC customs union (later to become the EU customs union) eliminated internal tariffs between the member states and introduced a common external tariff with the rest of the world, the elimination of customs border posts was not achieved until decades later.

In short, Bartels is mistaken. The elimination of border posts between EU Member States was a product of the Single Market, not the EU customs union.

I am rarely surprised to see people who have not studied this subject fail to distinguish between the Single Market and the EU customs union (such is par for the course), but for an expert, and a representative of one of Britain’s world renowned elite institutions, to add to the confusion is a different matter.

During subsequent Twitter correspondence, Bartels said that the meaning he had intended to convey was that a customs union is necessary but not sufficient for eliminating customs border posts. Unfortunately, that is not what he said, and the present video content is therefore misleading.

Also on Twitter, Bartels expressed exasperation as to why this mistake should provoke such “drama”.

The reason is that no small number of politicians, who one presumes are supposed to provide policy direction, as well as legacy media commentators, who are supposed to inform the debate, are still focusing on the idea that the UK could remain in the EU customs union, in spite of the fact that, even if this were desirable, it could not be done.

Routing around the politically sensitive idea of a customs union, an agreement on customs co-operation could serve the required purpose, without raising nearly so many hackles.

The customs union and customs co-operation are separate in treaty law and in practical terms. Given the difficulties arising from the inability of politicians and press alike to understand and articulate basic concepts, the last thing we need is experts throwing further mud in the water, when they of all people should (surely?) know better.

EU Withdrawal Means EU Withdrawal

One of the big differences between what are broadly termed the “hard Brexiteers” and the rest of us is the belief that agreeing new trading arrangements with the EU will be straightforward because the UK has already eliminated tariffs between and has full regulatory equivalence with the rest of the bloc.

Putting tariffs aside, for the moment, it is the regulatory equivalence part that I struggle to understand.

EU Member States have full regulatory equivalence. Therefore, so the argument goes, the UK can simply apply the same standards after EU withdrawal and jobs a good ‘un.

Well, not really, no.

Can you see the problem? It is pretty fundamental. EU Member States apply equivalent regulations. EU Member States participate in joint programs and apply standards that reference and are ultimately policed by common surveillance, enforcement and dispute resolution mechanisms.

Countries that are not in the EU do not.

Upon leaving the EU, the UK will no longer be an EU Member State, and will no longer have (nor would it want) access to the same administrative infrastructure as the remaining EU Member States.

The UK will need to develop and, crucially, if the UK government wishes to preserve a similar level of trade with the remaining EU Member States, agree alternative arrangements for buying from and selling into the EU. What form these new arrangements should take is in itself a non-trivial problem.

In short, the UK cannot continue to work with the EU as if it were an EU Member State once the UK is no longer an EU Member State. (I keep wanting to say, “capisce?”). So the fact that we start from a position of regulatory equivalence is not the shortcut that Liam Fox and some others appear to imagine.

I am not sure how else to attempt to express what, to me, seems like such a simple idea. There are people I know personally, fellow Brexiteers, people of good faith, who are on the other side of this divide. If we cannot at least try to reach an understanding, there seems to be little hope of moving forwards.

It is because the regulatory equivalence that is currently assured by the UK’s status as an EU Member State is not a shortcut, that the UK government would be best advised to attempt to join EFTA, so as to participate in the collaborative structures that are already part and parcel of the EEA agreement. Joining the EFTA pillar of the EEA agreement would shortcut many of the complicated technical challenges associated with reversing what was always intended to be irreversible, without doing undue damage to the British economy.

If you imagine that very little needs to be done in order to establish the new policy-making and regulatory frameworks that the UK will inherit when it returns to being an independent country, then you haven’t yet begun to grasp the extent of EU influence and entanglement in the British political sphere.

Still Searching

The UK in a Changing Europe initiative, led by Professor Anand Menon of King’s College London, has produced a report describing some of the possible impacts of a “no deal” scenario. The authors adopt the term “chaotic Brexit” as a means to distinguish a failed negotiation, with no reciprocal agreement at the end of the talks, from the more familiar term “hard Brexit”, which broadly denotes a withdrawal agreement that would see the UK revert to trading with the EU27 (and, presumably, the rest of the world) on WTO-only terms.

The impact of failing to reach a deal with the EU would be, the report says, “widespread, damaging and pervasive”. What is notably absent, however, are any suggestions for how the UK government could mitigate or avoid such an outcome, and that, I would have thought, is where these experts could be providing real value. Not by telling us what must be done, but by narrowing what Bill Seddon calls the “plausibility scope”, in order that we might understand our options more clearly.

Just how damaging a “no deal” scenario would be has been explored on EUReferendum.com from a variety of angles since the “leave” vote. To my way of thinking, much of this is raking over old ground, the situation now is rather more urgent. What would be useful are possible solutions.

Then, as I read through the section about the impact of a “no deal” scenario on the agricultural industry, a thought which I had been struggling to concretise came together. Most academics are not practitioners. As such, they are (necessarily) reactive, rather than pro-active. They’re looking at what others (politicians and policy-makers in the civil service) are doing and trying to understand it, much like the rest of us.

Are they also expecting a steer from government, rather than thinking that maybe the impetus ought to be the other way around?

This short section made that idea loom even larger:

This means that some kind of transitional arrangements will almost certainly be necessary. These might allow the maintenance of trade with the EU on something like current terms, while the details and practicalities of any long term deal are thrashed out. But here again nothing will be simple. There is little prospect that the EU27 will allow this unless we agree to the continuation of free movement of people and the jurisdiction of the European Court of Justice during any transitional period.

The notion that two-years is too short a time to agree a new relationship with the EU will be familiar to anybody who has visited this blog over the past year. The part that really stood out, however, was the assertion that there is little prospect of the remaining EU Member States agreeing to any transitional arrangements that do not involve free movement of people and the jurisdiction of the ECJ.

That appears to ignore the existence of EFTA and the two-pillar EEA agreement, which uses the EFTA Court as an arbitration and dispute resolution mechanism. Is this an oversight on the part of the authors or are they unaware of the fact that there are states which participate in the Single Market without also being in the EU?

Given that the ECJ does not claim jurisdiction over any territory outside of the EU Member States, it strikes most people as untenable that this avowedly political court could retain such powers in the UK even after EU withdrawal. The EFTA Court, by contrast, is a viable alternative to the ECJ, the kind of pragmatic compromise that could pave the way to a deal both sides can accept.

This is an important piece of information, which should be more widely communicated and understood. Yet this report’s choice of words could be used to reaffirm the all-too-familiar narrative that would have us believe continuity ECJ is the UK’s only option over the short- to medium-term. It is all very well to present us with problems, but I would expect subject matter experts to be willing and able to offer creative solutions too.

Neither, given the sensitivity of the subject matter, do I think calls for greater attention to detail are unwarranted. Which brings me to my final piece of constructive criticism.

The leading academics who produced this report purport to provide readers with unbiased commentary and objective information. With that in mind, why then does their report include rejoinders such as this:

As for UK nationals living, working and providing services in the EU, so long as the UK remains a member they will continue to enjoy EU rights. But for how long will the EU tolerate UK nationals enjoying the rights of EU law in their countries when the UK has made it so clear that it wishes to turn its back on the EU?

Why is leaving the EU here characterised as Britain turning its back on the EU? Why not say, “leaving the EU” or “withdrawing from the EU”? I doubt whether such a turn of phrase would find its way into any of the author’s academic papers, so why adopt this emotive tone when writing for a general audience? By the same token, in what sense does the EU following its own rules require tolerating UK nationals? The EU is a rules-based organisation, tolerance does not enter into it.

Language matters and if you’re going to effect the position of one who is objective, it matters that you adopt a neutral and descriptive lexicon, which does not prejudice how readers interpret your arguments or assertions.

It’s odd to feel like the professor marking a capable student’s coursework, when the report is the work of experts and I am just an interested observer, but that is how it is. As was sometimes written on some of my earlier efforts, “You’ve made a start, where is the rest?”.

Expert Opinion

David Allen Green writes about the EU for the Financial Times. By his own admission, “[he] had hardly written about EU things” until just over a year ago. With that depth of experience behind him, Green today offers us his take on, “How Brexit should be done”.

The piece starts with Green telling us that he hopes to allay accusations that his criticisms of UK government policy are “unhelpful” by providing readers with a “constructive blogpost”, setting out how Brexit should and could be done, “if it is to be done at all”.

Okay, let’s pause the tape.

The referendum was won by the “leave” side, Parliament voted to grant the UK government the power to invoke Article 50, and that treaty provision has now been invoked. Are we not a little way past rejoinders inviting us to reflect upon whether EU withdrawal should happen at all?

It speaks to Green’s lack of self-awareness that he should whine about people accusing him of harbouring an anti-Brexit bias while still leaving open the idea that the UK could yet choose to remain in the EU.

Right, start the tape again.

Next, Green asserts that “Article 50 is not the only means by which a member state can leave the EU”. That sound you can hear is probably me hitting my head against a brick wall.

The last time I was forced to endure this nonsense was when Dominic Cummings, of Vote Leave fame, was telling us the very same, warning that Article 50 was a “trap”. A disproportionate amount of campaign time was spent rebutting people who were keen to exaggerate the horrors of this straightforward exit mechanism. Article 50 is about a negotiated exit. That is practically all there is to it.

Why this should be raised as a point of contention is beyond me. Moreover, given that Green trailed this piece as offering a “constructive” way forward, it is hardly practical to say, “I wouldn’t start from here”. Indeed, for a writer for the portentous Financial Times to be dragging us back to a time prior to the firing of the starting gun, when a thousand paranoids were saying that even the Article 50 process was a trap, is just sad.

However, I have to praise Green for pointing out that David Cameron “irresponsibly prevented the civil service from preparing for a Leave vote”. Since the referendum, people have questioned me as to whether that really happened, when the fact of the matter is Cameron’s behaviour is well documented. Not only did the government not make plans, David Cameron acted to prevent any such plans from being made. Still others have attempted to argue that the absence of planning was not significant. Often these are the same people who criticise the near-incoherent approach of the May government.

The rest of the article is (I’m writing this as I read it—can you tell?) not nearly so interesting. The final two-thirds of the piece essentially assert that the UK government should ditch the childish rhetoric and approach the negotiations in a manner that keeps its options open, while retaining clarity regarding the essential objective of delivering the referendum mandate—withdrawal from the European Union.

That is so obvious one wonders at why it should even need to be asserted. Yet, Green is praised for providing such bland commentary.

If a Financial Times journalist imagines that this doleful stuff describes how Brexit should be done, it is little wonder that the legacy debate is so enfeebled. There seems to be few who are willing to recognise just what a vast project EU withdrawal really is because that would mean coming face to face with the extent of the deception that was done, when politicians and journalists consented in telling us that EU membership was mainly about trade.