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.

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3 thoughts on “Lowered Expectations

  1. Thank you for pointing this out.
    I am not as good as you are at the EU law, but I can vaguely remember through the haze that the Customs Union in Germany was the forerunner of the Empire, and suspect that the same idea was true of the EU too – a forerunner of the United States of Europe. I suspect that, having dumped the “Single Market” the Bubbleteers have tried to substitute (wrongly) the “Customs Union”.
    Efta/EU was dumped ages ago – before Easter.
    Let me be frank: I went to Cambridge in the days before it was women dominated and I feel hurt that a man like this should spout such rubbish. My dons would have torn him to pieces!

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  2. This is ‘off’ the subject of your post but I admire your blog and wonder whether, drawing on your experience, you can help with a specific question…

    A London School of Economics report published in July 2107 paints a bleak brexit scenario for UK local authority finances, asserting that under both ‘hard’ brexit (WTO) and  ‘soft’ brexit (‘Norway style’) scenarios non-tariff barriers increase, although less so for  ‘soft’.

    If the EEA Agreement ‘guarantees equal rights and obligations within the internal market’ (and  bilateral agreements between EFTA and EU cover those sectors not covered by the EEA Agreement), my question is… is there any truth in the LSE’s assertion that  non-tariff barriers for EFTA member countries trading with EU member counties  are higher than those for EU member countries trading with each other?

    Any thoughts on this issue would be most welcome. Thanks

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  3. It seems, essentially customs unions do not get rid of border posts.

    But what does get rid of border posts is the single market.

    Or have I got that one wrong?

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