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.

Defining Terms

One of the odder characteristics of what is called the Brexit debate is the tendency of people to adopt alternative definitions for familiar terms.

The sui generis example must surely be Mrs May’s circular, “Brexit means Brexit”, which, taken seriously, can only mean, “Brexit means what I tell you it means”.

Picking up that particular baton and running with it, several politicians and journalists have taken to saying that, “hard Brexit” means Brexit but “soft Brexit” means Remain. When is a Brexit not a Brexit? There is a joke in there somewhere.

So, instead of discussing the various important issues relating to Britain’s future relationship with the EU and EU Member States (not to mention the rest of the world), politicians, journalists and academics seem to be more interested in divining the Platonic ideal of the one true Brexit.

That is precisely what the Flexcit plan attempts to avoid. In order to decouple UK administration from EU institutions, policy will need to be flexible and open. In the short-term that means prioritising leaving the EU.

It seems remarkable that the above should need to be said, yet there is a strange alliance of former Remainers and a small fringe on the Tory Right, who, although they would deny that they have any shared aim, assert that remaining in the EU after the Article 50 talks have concluded would be a viable approach.

In the case of the Tory Right, I would refer you to Mrs May’s Lancaster House speech, and the idea of an indeterminate “implementation phase” following the current rounds of negotiations. How that would be achieved or what that would mean in practical terms is not something I have heard anybody address. For the former Remainers, the idea seems to be to remain through courting catastrophe.

If we could adopt and agree upon a clear definition of what Brexit means, much of this nonsense could be avoided.

In the blogosphere, it turns out that this is a solved problem. In January 2016, Bill Seddon coined what I have since regarded as the canonical definition of Brexit and, in my opinion, the basis by which the UK-EU negotiations should be judged:

Brexit = Withdrawal from EU Treaties, Institutions and Representation: “Not A Penny More And Not A Penny Less.”

Viewed in this particular context, the confusion that the legacy press tends to foster, simply falls away.