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 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.

The Paranoid Style Of Resentful Remainers

I have just read Carole Cadwalladr’s strange fever dream of an article, published in the Observer today. Britain’s vote to leave the EU was not a legitimate expression of the popular will—a culmination of years of condescension and neglect from an increasingly discredited political class—it was instead the result of a right-wing plot peopled by billionaires and “data scientists” (“You’re a wizard, Harry”) who used “sophisticated algorithms” (not spells?, ed.) to target and subtly coerce a small but significant number of credulous Facebook users to shuffle to the voting booths on June 23rd and mark the box labelled “Leave the European Union” with an “X”.

That may sound like the backstory for one of the lesser Bond films (maybe something from the Pierce Brosnan era), but Cadwalladr would have us believe (I’m sure that she believes) that “it were the big data wot won it”.

The story she tells is not wholly inaccurate. Cambridge Analytica is a real firm. The company may have done work (in some capacity) for Leave.EU and (probably in a much more significant capacity) for Donald Trump. But “big data” (or “data”, as it was known before the marketing bods got to work) is not magic. Nor are the techniques that campaign groups employ anything particularly new, as Conservative Councillor, Simon Cooke, explains here.

However, a simple narrative and a journalist who wants to believe are not easily parted. Ironically, another true believer (at least that’s how it appears to me) is the former Campaign Director for Vote Leave Ltd., Dominic Cummings.

Cummings has made several big boasts about his campaign “do[ing] things in the field of data that have never been done before”. That includes the Voter Intention Collection System, or VICs, about which Cummings wrote a long blog post. This is why I can only assume that Cummings is as ignorant as Cadwalladr. If he knew what he was talking about—unless he is playing an extraordinarily elaborate joke of Andy Kaufman-esque proportions—he would be embarrassed to share such shoddy work.

If the appalling campaign were not evidence enough, the VICs project ought to disabuse anybody of the idea that Vote Leave was the product of a strategic mastermind, using the remarkable power of big data analytics to get one over on “the establishment”.

Not only did Cummings write a self-aggrandising blog post about the system, he also published the VICs source code on GitHub, prompting no less a figure than the BBC’s political editor, Laura Kuenssberg, to write a laughable puff piece, repeating several of Cummings’ claims.

As an aside, given the very high regard the BBC has for itself, Kuenessberg should know better than to take Cummings’ assessment of his own work as gospel. The BBC must have people on its staff who could have looked over the code and provided an expert opinion, if requested. Failing that, the BBC political editor could have called any university computer science department in the country and asked any one of several hundred (thousand?) professors to give their opinion of what was published.

For what it’s worth, I did have a look at the source code, and to say that what I saw was unimpressive is an understatement. The parts of the VICs system that can be viewed on GitHub amount to little more than a half-finished web app. The idea that this was the “data analytics” tool that gave Vote Leave an edge in the campaign is ridiculous.

How ridiculous is summarised in this piece by Joshua Carrington, who went to the trouble of building the various dependencies and compiling the source.

If Stronger In did not have an equivalent, or even a superior system, I would be surprised.

As far as I was concerned, Cummings’ blog post read like a pitch for work. But the journos bought it, so I guess it did its job.

Similarly, this line from an anonymous source, referred to only as David in the Cadwalladr piece, made me laugh out loud:

Robert Mercer did not invest in [Cambridge Analytica] until it ran a bunch of pilots – controlled trials. This is one of the smartest computer scientists in the world. He is not going to splash $15m on bullshit.

Have these people never heard of the dot-com bubble?

In closing, this is yet another article aiming to identify a “prime mover” responsible for a result that caught the legacy press and the political parties off guard and which many among that demographic have not yet come to terms with. The fact of the matter is that the EU is not very popular in the UK and it never was. The lie that says the EU is primarily an economic rather than a political project is increasingly difficult to maintain. The British electorate never felt that they had given their consent for their nation to be merged with other European states and subordinated to a supranational executive called the Commission. The ongoing disaster in the eurozone and the fact that the Armageddon we were promised if Britain did not join the single currency never arrived also emboldened people. I could go on.

Success may have many fathers while failure is an orphan, but it does not seem that any paternity test will soothe the paranoids who write this drivel for the Guardian and the Observer.

No Maps For These Territories

During the referendum campaign, Stronger In said that seeking to rejoin EFTA in order to participate in the EEA agreement would leave the UK, like Norway, with “no say” over “EU rules”.

Post-referendum, that mantra was taken up by the “hard Brexit” crowd. Am I the only person who finds that strange?

The pretexts that are offered for opposing an EFTA/EEA transition now are practically identical to those that were offered during the campaign: money, regulation and immigration.

The “hard Brexiteers” say that participating in the EEA means paying into the EU budget, which it does not. Called on that one, they shift to saying that the EEA costs too much and that the UK would be better off without the “burdensome” regulation they associate with the Single Market. Presumably, these people are proposing a cost-free alternative? It is impossible to know; the “hard Brexit” crowd are long on criticism and short on ideas.

Free trade agreements, especially those of the “deep and comprehensive” variety apparently favoured by the May government involve shared bureaucracy, for which somebody has to pay. Furthermore, Britain’s domestic regulatory and administrative agencies will almost certainly have to expand as policy-making powers are brought back under the UK umbrella. Those also cost money.

In short, any cost-savings that accrue from not having to pay directly into the EU budget will not be saved or made available for spending on the NHS. They will have to be reinvested in many of the same activities that are currently outsourced to the EU. Indeed, many of those activities would be even better handled at a local level. What and how powers should be dispersed is the kind of question Brexit demands that we discuss.

The sterile non-debate, hosted in the legacy press, in which the usual eurowhingers drone on and on about their opposition to any remotely realistic proposals, while offering no alternatives of their own, is of no use to anybody.

International co-operation costs money. That’s a fact. But, supranational EU institutions are far from the only, let alone the best or even most appropriate means to facilitate cross-border collaboration.

Technical standards for trade are another area where the conversation has been allowed to become much too narrow. Leaving the EU demands (that word again) that the British electorate think about and discuss what an independent trade policy can deliver. The UK market is not big enough to create an alternative centre of gravity and compete head-on with the so-called “Brussels effect” (formerly the California effect), and nor do we need to. Greater agility and enhanced accountability will enable us to build new alliances, work to embrace and extend the multilateral trading system, and also encourage new voices to have their say.

Accepting an EFTA/EEA interim would near-enough guarantee that the UK is in a position to leave the EU once the scheduled Article 50 timeline expires. The UK could immediately jettison two-thirds of the EU acquis and start to look to the future, working to rebuild our long-neglected national and local governance. An imaginative approach to areas such as agriculture, fisheries, environmental and energy policy has the potential to yield significant gains.

Contrary to establishment myth-making, neither does the EFTA/EEA route involve accepting the continued jurisdiction of the ECJ. The EFTA Court is an existing entity with an independent track record which, crucially, unlike May’s promised “deep and special partnership”, actually exists. Who knows what the Tory Party will assent to given the option to present us with their version of “Brexit”?

Finally, the EEA agreement also includes safeguard measures—a standard feature of almost every international treaty (the supranational EU is very much the exception in that regard)—which Lietchtenstein was able to leverage to negotiate a permanent opt-out from freedom of movement while also retaining participation in the Single Market.

In brief, an EEA type deal offers a stable path out of the EU, would not involve paying into the EU budget, would not involve accepting the continued jurisdiction of the ECJ, and need not necessarily involve full freedom of movement. None of the three pretexts offered by the politicians and the legacy press are true. Yet, the UK government has already said that the rate of immigration may increase after Brexit and that they would be willing to accept the continuing jurisdiction of the EJC for the duration of an (as yet unspecified) “implementation phase”. Perversely, the people who attack the EEA agreement do not attack the government for making proposals which are ostensibly much worse and a lot less “hard” than the “hard Brexiteers” present themselves as being.

For the time being, however, the legacy debate is mired in a tussle over who is more obnoxious, Theresa May or Jean-Claude Junker…

Live And Learn

Pete North recently wrote a series of tweets about the virtues of blogging. What I found particularly interesting were the characteristics he described which distinguish blogging from legacy journalism.

The idea that “learning is a collaborative effort” and that “blogging is opening up a dialogue for cross-pollination of ideas” particularly chimed with me.

In the past I have drawn comparisons to the collaborative style of communication blogging encourages and the open source software movement.

This is another tricky subject. The “technology industry” as people now call IT (roads and writing are also technology, ed.) is full of techno-utopians who appear to think that applying Silicon Valley fads to subjects outside the domain of software design will solve all of the world’s problems.

I appreciate the danger of taking ideas from one domain and using them to describe another, but in the case of blogging and open source software I think that the domains are (or can be) quite similar. The similarities are especially apparent when you are writing about technical subjects or matters of fact and you are aiming for accuracy. Comments can help you debug your blog posts.

To that end, my previous blog post has so far prompted two responses. The first, a pertinent question, with a (hopefully) clarifying answer.

The commenter asks, “In the EU Treaties does the term “third country” not relate to a country which is not a member state of the Union?” In this particular case, I am nearly certain that the commenter in question already knows that the answer to that particular query is, “yes”. In the context of the EU treaties, the term “third country” is used to refer to any sovereign state that is not also an EU Member State.

Fine. That’s nice and clear. This being the EU, however, the matter does not end there.

As I wrote in my previous post:

To clarify, “third-country” is a value-neutral term, used by the EU to describe any country that does not participate in the Single Market. If the UK leaves the EU and does not negotiate to join EFTA, so as to participate in the EEA agreement, the UK will become a third-country.

At the risk of belabouring the point, I will note that, as already mentioned, in the EU treaties the term “third country” is used to describe an non-EU Member State, whereas above, I am using the term “third-country” to describe any state that does not participate in the Single Market.

So, was I wrong to use the term “third-country” in that particular context? The short answer is, “I don’t think so”. In all honesty, the division is not as clear as one might like, although I do think it is possible for people of good faith to agree a common understanding of the term, thereby allowing debate to move forward.

The complication stems, at least in part, from the fact that the European Commission uses the term “third country” to mean both countries that are not in the EU and countries that are not in the EEA, which also includes three EFTA members (namely, Norway, Iceland and Liechtenstein).

One such example is the Data Protection Directive, guidelines for which are provided here. The discrepancy arises, I suspect, from the fact that the three EFTA countries that participate in the EEA agreement are not considered “third countries” in matters covered by the EEA (Single Market) acquis.

Even the way in which the term Single Market is used is something of a movable feast. Amidst this confusion, however, lie the seeds of a solution. The fact that even the EU struggles to clearly articulate a coherent vision of its neighbourhood policy would appear to indicate that a British government imbued with a proper sense of purpose could present Brexit as an opportunity to build something much better.