Brexit: flagstones breaking beneath our feet

Monday 10 December 2018  

If we can discern anything with clarity from the noise that dominates the Brexit environment, the one thing that stands out is that the idea of a "Norway-style" plan B is dead in the water.

In all probability, it always was dead. The main window of opportunity was shortly after the referendum, before the environment had been polluted with rival plans. Then, below-the-radar approaches could have been made to Efta states and careful soundings made as to what would be needed for a successful UK re-entry.

However, with both sides – remainers and leavers – having dismissed the Efta/EEA option prior to the referendum, there was never going to be a point in the early aftermath when the political classes could switch tracks and embrace something they had already rejected. They may have looked through the window but, just as quickly, they slammed it shut.

The next possibility arrived with the "coronation" of Mrs May as leader of the Conservative Party and prime minister. With her talk of market access, it looked for a while as if she accepted the need to stay within the Single Market, which inevitably meant embracing the EEA option.

When that hope was demolished by Mrs May herself in her Lancaster House speech, that ruled out any formal government approaches to the Efta states, and when the official line emerged, about an EU exit automatically including leaving the EEA, it was effectively game over.

The only thing that kept hope alive was the certain knowledge that the UK still needed access to the markets of the EU Member States. And, as Mrs May thrashed around trying to find a way out of the trap she had set herself in Lancaster House, the Efta/EEA option increasingly looked to be the only rational option.

Thus, when Nick Boles popped out of nowhere with his "Norway for Now" idea, there were those who said we should be pleased. It put the "Norway option" back on the table and had people talking about it once more, we were told.

Yet, in sporting circles, anyone will know that the best way of throwing a match is to field a weak team against champions. You don't have to set out to lose, but the chances of winning are slight.

In this case, we didn't get to select the team, but it was still second-rate. Its game plan was based on the idea that we should "park" the UK in Efta for a few years while we sorted out a better deal for ourselves (if there was one to have), there was unlikely to be a more calculated way of offending Efta states and thereby closing off any opportunity to pursue the "Norway option" proper.

Although prominent players in "Norway option" advocacy, Leave Alliance had not been consulted about Boles's initiative, or even informed after the event. But, when we reacted with less than unalloyed enthusiasm, we were treated as if it was us who were letting the side down. When we sought to explain why the plan was so badly flawed, we were told to have faith – Nick was about to produce something better.

Nick indeed did produce a revised plan. But he achieved something that we would not have thought possible – it was worse in many respects that the original, adding a "plus" which turned out to be an unnecessary customs union, toxifying the whole concept. But, said Nick, it was a good "compromise", whence he studiously ignored any criticism and concentrated his efforts on telling everyone who would listen what a good plan it was.

Now he has joined forces, very publicly, with Stephen Kinnock, even attempting in The Times to sell the merits of an "emergency brake", which Kinnock knows full well is a misdescription.

Although it has gained brief notoriety in the House, the lack of coherence of the plan comes over clearly, not least by its omissions. Boles believes this to be a "quick fix" – one of applying an off-the-shelf solution amounting to little more than a cut and paste job.

But what is so striking is that neither side, whether for or against, can mount coherent arguments to back their opposing stances. The antagonists amount to blind men in a padded room, lashing out at each other, occasionally landing a blow but more by accident than design.

Striking against the plan, we've already seen the People's Vote, with their report on Why 'Norway Plus' Won't Work. And a defence is now mounted by Andrew Yalland, in an article on the Reaction website.

Interestingly, Mr Yalland dates the genesis of the EEA Agreement from 1991, when – he says – the then Commission President, Jacques Delors, decided there was a need for a new, non-EU treaty "enabling non-EU European states to participate in the EU’s economic pillar without having to have membership of the political pillar".

This is a fiction. In fact, when Delors did intervene, it was in response to an already active initiative by the Efta states. And this came earlier that Yalland would allow, on 17 January 1989 when he laid out his ideas for what he called a "European village". This was a place where "understanding would reign" and "where economic and cultural activities would develop in mutual trust".

"If I were asked to depict that village today", Delors continued in his speech, "I would see in it a house called the 'European Community'. We are its sole architects; we are the keepers of its keys; but we are prepared to open its doors to talk with our neighbours".

The importance of this can hardly be overstated, positioning what became the EEA as an example of the willingness of the then European Community to open up its Single Market to Efta members.

But Yalland, having got this date wrong, compounds the error by telling us that Efta members "became signatories to the European Economic Area Agreement" in 1994. The Agreement was signed in 1992 and came into force on that later date.

In effect, this supporter of Mr Boles's plan would have the EEA Agreement negotiated in the impossibly short period of a single year (1991-92) when the more prosaic truth is that Delors in 1989 was responding to an Efta initiative. And this dated back to 13 May 1977 in Vienna.

The formal start of the process which eventually led to the creation of the EEA can be taken to be the Luxembourg Declaration of 1984, which announced an intent to "broaden and deepen" cooperation between the EC and Efta, with the aim of creating a dynamic European Economic Space (EES). The change from EES to EEA came at the end of October 1990, but the change of name was regarded as a "purely linguistic matter" (see footnote 11, p.10).

The significance of the dates highlighted is two-fold. Firstly, the sheer longevity of the period during which the EEA came to fruition illustrates how long it can take to develop and then negotiate complex trade agreements, even between relatively close partners with a long tradition of mutual cooperation.

The second "take-home" point is that, in his Reaction article, the hubristic Yalland purports to offer us a "history lesson". But, when it comes to easily verifiable historical facts, he gets the details wrong. (The history has been admirably recorded in a European Parliament Research Paper completed in 1993, with a shorter overview in my Monograph.)

Details are important, not least because – in this case – they indicate that the UK's path to the EEA as an Efta state might take very much longer than is generally acknowledged. But, as an added bonus, getting the details right in an article confers authority on the author, and builds trust.

Yet, sadly, according to Professor George Yarrow, to demand "perfection" (i.e., the absence of error) is "unwise". After all, he says, 70 percent will get you a first class degree.

This points to a crucial element of the overall Brexit debate – although by no means confined to this issue. In government and politics, in the media and academia, there no longer seems to be a premium on accuracy. Any old tosh will do if it fills the spot, to the extent that a senior academic can dismiss a demand for accuracy in "open book" research as "unwise".

When it comes to the EU, though – and related organisations such at the EEA, the "actors" are prisoners of their history. I've long held that you can never understand the EU, and institutional behaviour, unless you have a good grasp of its history – and not just the hagiography served up on the Commission website.

This is why so many lawyers – to say nothing of politicians – make a pig's of evaluating EU politics. Some of them might think they know the procedures, and the details of the treaties – but few of them have troubled to understand the historical background in which they are framed. And that means getting the detail right.

By the same token, only if you understand the history of the EEA – going right back to 1977 and before – can you fully appreciate how it came to be and what, even to this day, drives it. That knowledge will also tell you that the EEA is the perfect home for the UK as an Efta state – and illustrate with devastating precision the opportunity we are missing.

Giving the last word to Booker, though (column not on-line, again!), he in turn cites the words of Winston Churchill, spoken to the House of Commons in March 1938.

"I have watched this famous island descending, incontinently, fecklessly, the stairway which leads to a dark gulf", Churchill said. "It is a fine broad stairway at the beginning. But after a bit the carpet ends. A little further on there are only flagstones, and a little further on still, these break beneath your feet".

"Certainly in recent days", Booker concludes, "we have more than ever felt those flagstones breaking beneath our feet. Only the dark gulf remains". This is more true than we could even begin to imagine.

Richard North 10/12/2018 link

Brexit: making waves

Sunday 9 December 2018  

When it comes to Mrs May and Brexit, I've already done all the variations on the theme of a prime minister trapped between "a rock and a hard place" on this blog, which rather rules out using the theme again. But it is nevertheless fair to say that she is trapped.

On the one hand, she is driven by her determination to see the withdrawal agreement ratified and, on the other, she is paralysed by her refusal to look at any alternatives.

In that context, there is the possibility of another referendum being touted and then there is that infamous "Plan B" which apparently has the support of an undisclosed number of MPs, the essence of which is one or other of the editions of Nick Boles's "Norway Plus".

At a pinch, we could see the referendum giving Mrs May an escape route. Assuming that the ECJ does rule that the Article 50 notification can be revoked unilaterally, the expected refusal by parliament to ratify the agreement could lead to the prime minister asking the European Council to extend the two year period to give enough time for the vote.

If one assumes that the referendum could give a straight choice of "leave" or "remain", Mrs May might assure the Council that, if the nation votes for "remain", she will revoke the Article 50 notification. In the event of a "leave" win, the prime minister would have to do nothing. We would automatically drop out of the EU when the extended Article 50 period expired.

As to "Norway Plus", although it is being touted as an alternative, it was never a runner – even if it wasn't the dog's dinner that Mr Boles has created. For it to be contemplated, the EU would have to reopen the negotiations – something (Mr Prodi aside) it has repeatedly said it will not do.

Boles's answer to that is for parliament to support the withdrawal agreement and for us then to negotiate the implementation of his plan during the interim period. But I don't see parliament buying that. There are simply no assurances that Mrs May could give that would guarantee that happening.

Then, of course, there is that minor problem of it being a crap plan, so lacking in coherence that it could not possibly be put into action. And any properly structured Efta/EEA option would most certainly take more than three years to negotiate, assuming that the Efta states would allow us to rejoin Efta in the first place.

However, from recent events, and the behaviour of some of the advocates of a "Norway-style" option, it seems increasingly unlikely that all four Efta states would unanimously agree to allow the UK to enter into their ranks. That would leave us with an uncertain situation over which Mrs May had no control.

One could not rule out the possibility, though, that a refusal might be engineered. I am sure that, if Mrs May asked nicely to be refused, the Norwegian prime minister would happily oblige by stating that the UK was not ready to rejoin Efta – or some such diplomatic rebuff.

Personally, if it is going to go anywhere, I feel that the negotiating environment has been so polluted that, if it is to progress, the EEA concept has to be lifted from its Efta/EU home and transplanted into a wider arena. Yet, for the moment, that is premature and far too ambitious a leap for the parties even to consider. It could be that the amateur thrashing of the likes of Nick Boles have closed off this route for the foreseeable future.

With "Norway" ruled out, if Mrs May resists the pressure to call a new referendum after a "no" vote, that leaves her the task of trying to change parliament's mind and reverse its initial refusal. A further failure could lead us down the path of a general election, at which point sensible analysts give up trying to predict a path. There are still too many variables.

Nevertheless, that does leave the "do nothing" option, where Mrs May sits on her hands – or simply goes through the motions without any commitment to the success of any of her actions. Parliament may huff and puff, but it can't force her to succeed. If they instruct her to go to Brussels and reopen negotiations, or to extend the Article, she only has to come back with the message: "Mr Juncker, he say no". What is parliament to do then? Invade Belgium?

Ostensibly, an across-the-board rejection from Brussels would leave the MPs with but one option – to ratify the agreement. If they do not, on 29 March 2019 we drop out of the EU. The ball is in parliament's court.

That makes one wonder whether, despite all the talk of Mrs May's vulnerabilities, she actually has the whip hand. If she stands back and lets the "Ultras" have their own way, and we drop into a full-frontal "no deal" scenario as a result, she only has to smile sweetly and say "I told you so".

The "Ultras" are mad enough to go for the "no deal" bait, with David Davis still burbling on about dumping EU trade and seizing "the opportunities Brexit presents for us to be a truly Global Britain".

When the Channel ports are blocked, the flights are grounded and the pound crashes, the likes of Davis will have to eat their words. All the MPs who blocked Mrs May's deal can then explain to their constituents why they have brought the country to the brink of ruin.

This will not only apply to individual MPs. If Mr Corbyn's Labour Party has been instrumental in forcing the country into a damaging "no deal" scenario, this could weaken its chances of success at the next general election. In fact, an emboldened Mrs May, having successfully brokered emergency negotiations with Brussels to keep the show on the road, might look forward to another term of office.

In the meantime, it looks as if we might be about to see a little more theatre, with The Sunday Times claiming that Mrs May is about to emulate Margaret Thatcher by travelling to Brussels to demand a better Brexit deal "in a last-ditch attempt to save her government from collapse".

I'm not sure that was ever Mrs Thatcher's role but we are led to believe that ministers and aides have convinced the prime minister that she needs "a handbag moment" with the EU if she is to have any chance of persuading her own MPs to support her.

We are now supposed to expect Mrs May to announce on Monday that that she will launch "a final throw of the diplomatic dice" with a dash to Brussels to ask the "colleagues" if they will concede a time limit or a unilateral exit provision to the "backstop".

Even though any prospect of delay has been rejected by No.10, the ST has revived speculation that Tuesday's vote might be postponed, to give time for further negotiations or even a referendum.

In a further variation of the referendum theme, we might be looking at the "leave/remain" poll, followed by a second question as to whether we prefer May's deal or no deal.

Whether the combined questions would pass the Electoral Commission's intelligibility test (see Section 104) remains to be seen. But, to my recollection, there has never been a multi-question referendum and designing the questions so as to avoid any confusion is not going to be easy.

It could be the case, for instance, that voters would prefer Mrs May's deal to crashing out, but would prefer to remain rather than face the "no deal" scenario. How does one then stop a straight "leave/remain" question being tainted by sentiment bleeding over from the first question. And then, how would voting be affected if the order of the questions was changed? What precisely would the referendum be measuring?

All that, though, pre-supposes that the EU would extend the Article 50 timescale, which simply cannot be assured. It takes just one Member State to refuse and we're back to square one.

Whether the ST story even survives the day without being rebutted by No.10 is anybody's guess. Unaware of the ST "scoop", The Sunday Telegraph has an official saying they were "100 percent" certain that the Tuesday vote will be held on time, while the Independent was reporting at 1am this morning a Downing Street "denial" that there will be any delay.

True or not, the story gives the Sunday broadcasters something to be going on with, breaking out of an agenda that is getting tediously repetitive – if only for the morning. And, once again, The Sunday Times gets to set the news agenda for the day, which is all that really matters.

One can, though, never discount the power of well-crafted theatre. An essentially venal media, wedded to trivia, is quite capable of running with a "last minute dash" soap opera. And the image of our "plucky prime minister" bearding the "Euro-bullies" in their lair in Brussels could have a powerful effect on voting intentions in Westminster.

The same dynamic could even be enough to bounce the Commission into offering headline "concessions" of such opacity that no one will have worked out that they are meaningless before the Tuesday vote. A media that can sell Mr Cameron's phantom veto to the public shouldn't have much of a problem selling a May victory as she steps off her RAF transport, making waves.

Perhaps that is all it does need – a little bit of drama, a sheet of paper, and history is made. What possibly can go wrong?

Richard North 09/12/2018 link

Brexit: rewriting history

Saturday 8 December 2018  

Potential gridlock at the Channel ports was back in the news yesterday, the suspiciously convenient timing presumably aimed at convincing wavering MPs that the "no deal" scenario is not a terribly good idea.

One really cannot avoid the observation that, if Mrs May had stressed this point in January 2017, when she delivered her Lancaster House speech, we might be writing a different version of history right now. After all, it took very little imagination, even back then, to work out that there were going to be problems on the Dover-Calais route. That makes it doubly tedious that we should be having to rehearse the same issues not far short of two years later.

Nevertheless, while I was raising the spectre of empty supermarket shelves in February 2017, by June of this year I was suggesting the queues at the ports could be avoided. All it needed was for the authorities to operate a system where the loading of ferries at UK ports was restricted, matching the rate at which consignments are cleared at their destination ports.

Very quickly, this became a permit system where, without prior authorisation, UK vehicles would not be permitted to travel to the ports. In order to keep the goods flowing, this could mean sending transports to the continent either empty, or laden only with empty vehicles returning after delivering goods to the UK.

Interestingly, this concept has been raised by Kent County Council with government as part of a national contingency plan. Lorries would be kept in depots up and down the country until they get the call to move south to the disused Manston airport near Dover, whence they would be held for final release to Dover.

Given a failure to reach a deal, the EU will not allow the import of some categories of goods from the UK, so there will be no point in dispatching them to the ports. Thus, with the reduction in traffic on top of movement controls, there will be no headline-grabbing queues of lorries waiting to cross the Channel, even in a worst-case scenario.

One could imagine, though, that it suits Mrs May to have pictures of lorries queueing covering the newspaper front pages, complete with dire warnings of drug shortages and even unburied bodies. The BBC has already obliged, running the lorry story as its main item on the main evening news yesterday. While its news website proclaims: "No-deal Brexit: Disruption at Dover 'could last six months'".

Unsurprisingly, the "Ultra" Muppets are still refusing to touch base with reality, with Brexiteer Andrew Bridgen dismissing the reports as "Project Fear on steroids". The intellectually challenged Simon Richards, CEO of the Freedom Association, tells his Twitter followers: "We've had more time to prepare for this than we had to plan D-Day, the biggest seaborne invasion in history. Please retweet if you've had enough of Project Fear".

The bizarre thing is that, if effective contingency plans are put in place, there will be no lorry queues. But a lot of people in the UK will be unhappy with the price we have to pay, as our export earnings drop through the floor.

Alongside "Project Fear", though, we are also seeing a number of pieces driving down expectations on the so-called "Norway Plus" option. Although it is so transparently awful that even Hannan can see the pitfalls, while some regard the Boles plan as sabotage, the Guardian recruits a Norwegian MP to labour the downside of Efta/EEA membership.

This is Heidi Nordby Lunde, whom the Guardian styles as a Conservative MP in Norway. Somehow, the newspaper omits to tell us that Ms Lunde is also president of the European Movement in Norway, dedicated to taking her country into the European Union.

Unsurprisingly, therefore, she does not believe it is in Norway’s interest to invite the UK into the Efta bloc. It would, she says. "certainly upset the balance within Efta – and thus our relationship with the EU. Further, the EEA agreement presupposes a consensus between the countries to harmonise with the same EU laws and regulations the UK wants to veto".

Not without good cause, she also slams Boles's first version of the Norway option, remarking that the UK seems to be considering joining the Efta family as a temporary solution – Norway for now – until it gets a better deal.

It really surprises me, says Lunde, "that anyone would think Norwegians would find that appealing. It would be like inviting the rowdy uncle to a Christmas party, spiking the drinks and hoping that things go well. They would not".

As for her general comments, these illustrate that some Norwegian politicians are just as clueless about the functioning of the EEA Agreement as their UK counterparts. Being Norwegian doesn't automatically confer greater wisdom or clarity on their politicians. They are just as capable of getting it wrong.

It cannot be a coincidence, though, that her remarks appear at the same time as the publication by the People's Vote campaign of a report on "Why 'Norway Plus' Won't Work".

Predictably negative in its view, it trots out the same dire mantras that can be heard anywhere from the hard of learning. "It would", says the report, "leave the UK following EU rules without a voice, vote or veto, whilst paying large sums of money without a say over how it is spent, and blindly following the EU's policies on immigration, agriculture, fisheries and trade". Far from "taking back control", it concludes, a "Norway Plus" Brexit would be "a historic abdication of power and influence".

But even without that low-grade propaganda, the report nonetheless gives some credence to the view that Boles is a saboteur. He has left so many holes in his "plan" that all People's Vote has to do is stroll through it, picking them up with consummate ease.

Not least, the authors remark of Norway Plus that we would not simply be negotiating off-the-shelf Efta or EEA membership. There would be exemptions needed in the Efta convention and then we would have to separately negotiate add-ons for agriculture and fisheries.

Actually, we would need many more add-ons, as well as the additional bilateral agreements on such things as aviation and VAT. Neither the agreements nor the issues are mentioned, indicative of a lightweight, derivative production which relies extensively on secondary sources. Good quality research this isn't but it's good enough to leave Norway Plus sunk without trace.

As an aside, it is a sad reflection of modern politics that so much published work, like this production, is so shoddy. If I could be bothered to do a detailed demolition job on Norway Plus, I would have done a far better job than this tawdry little effort.

Unfortunately, the media continues to demonstrate its almost total incompetence when it comes to describing the Efta/EEA option, typified by the latest contribution from cretin Ciaran Jenkins who tells his Channel 4 viewers that the Norwegians "pay into EU coffers and have no say in shaping its rules".

This child-like dogma is matched by an equally inane contribution from the great guru Matthew Goodwin who tells us that Norway "is not a meaningful reply to the two drivers of the Brexit vote: reform of free movement and restoration of sovereignty".

Even Stephen Kinnock, the Labour advocate for Norway-plus, managed to balls it up in an appearance on the Today programme, asserting that the Efta treaty (sic) allowed for "an emergency brake on migration in exceptional circumstances".

With that level of advocacy, we don't actually need "attack dogs" to bring down the Efta/EEA option. All we need is the commentariat to explain what it is. By the time they have finished butchering it, it would be hard to find anything less appealing. Heaven knows what they would say if they wanted to discourage people from considering it.

In one sliver of good cheer, though, we've had Norwegian prime minister Erna Solberg say that Norway may lend support for a potential bid by Britain to rejoin the European Free Trade Association (EFTA) if so wished by London.

But that was last Wednesday, a whole world away and another world from Tuesday when, if we are to believe the hype, Mrs May's world will start to collapse in on itself. But never fear, Simon Jenkins is on the case. Of Norway, he says, "It's increasingly clear there is only one deal that can be done. It may not be ideal, but it is workable".

If that had been said with conviction in 2016 by a lot more people - before the concept had become so polluted - then we could also have been rewriting history. But, with the noise level so high, even Jenkins is just another voice trying to be heard above the tempest.

More so is Amber Rudd who becomes the first cabinet minister to break the taboo of discussing a "Plan B". She says that a "Norway-style" Brexit, which would keep Britain tied to large parts of European law, "seems plausible not just in terms of the country but in terms of where the MPs are".

We thus descend into the twilight zone, where Mrs May's plan is set to be rejected, but only in favour of a fantasy plan that would be worse than May's, but for the fact that it is not deliverable. And this is seen by some as progress.

Richard North 08/12/2018 link

Brexit: when the prattle has to stop

Friday 7 December 2018  

A brief exchange on Wednesday, at a private seminar in London on Brexit, has had me thinking about how far we have to travel before we can even begin to deal with the vast well of ignorance and prejudice which pervades even the knowledgeable and the well-educated.

The context was simple enough – a discussion about the Irish border and whether technology could remove the need for border controls. I had made the point that such claims as had been made applied only to customs controls which was only one small sub-set of a much larger system of checks applied at borders.

Not least, I averred, were the sanitary and phytosanitary (SPS) checks, which included checks on live animal movements. There was not a robot yet, I said, that could carry out veterinary examinations of live animals. When you added foodstuff, this meant that there was inevitably going to be a significant amount of activity on the border, with no obvious means of avoiding it.

At that point, my interlocutor airily expostulated that this was just a "matter of bureaucracy", for which a simple solution could be found if there was the will to do so. There was no reason why such issues should provide any obstacle to a Brexit agreement.

So often have I heard such sentiments that the temptation is wearily to dismiss them, but here was an opportunity to lay out before an important audience precisely what was involved.

Laboriously, I explained that, inside the EU, the UK was subject to a system known as "official controls". As set out in my Monograph, these comprise a multi-tier system of controls, starting at the very highest level, with the coordination of food safety policy, to the minutiae of food premises construction and operation, right down to the frequency of inspection and the qualifications of officials engaged in monitoring standards.

As a food safety professional (I still practise), I have been working in and with this system for many decades and looked in great detail at part of it in my PhD research. As such, I have plenty of reservations about the functioning of certain aspects of the system and of the competence of some of the people involved. But, for all that, the fundamental system is sound.

That it should be is hardly surprising. It is a development of, and builds on the British system for controlling the standards of food imported into this country. This (or its failures) came into high profile during the 1964 Aberdeen Typhoid Outbreak, which I looked at in detail here, caused by contaminated corned beef produced by Fray Bentos. The events then are surprisingly relevant to today. 

Sticking only to the points strictly relevant to this narrative, one needs to know that the cause of the outbreak was eventually attributed to a minor defect in the can which had allowed the ingress of typhoid-contaminated process water used to cool the cans.

What was especially interesting about this is that, theoretically, this was supposed to have been detected. It had always been assumed that, if bacteria-laden water got inside a can, once they started feasting on the contents they produced copious quantities of gas.

In order to assure the safety of the food, therefore, it had become standard practice to incubate the cans before release, for up to three weeks. In theory, if the cans were contaminated, the natural flatulence of the bacteria would cause the cans to "blow", providing visible evidence of unfitness.

Like all good theories, though, this had a minor flaw: Salmonella typhi bacteria do not produce gas. Thus, in the rare event that the bacteria gained access to a can of meat, unaccompanied by other bacteria types (which was supposed not to happen), then the incubation would not reveal anything.

The point that emerges from this is that safety systems which rely on a single, end-point safety check are unlikely to be dependable. Derided as "end of pipe solutions", the lessons have been learned (to an extent) and, for most of my working career as a food safety practitioner, I have been dedicated to evaluating and installing multi-tier systems, characterised by a series of overlapping checks.

For all its many flaws, the EU system is just that – a multi-tiered system. And, by all means, a well-endowed white-collar executive in a comfortable venue in fashionable Mayfair, can dismiss this as "bureaucracy". But, there again, he might pause to reflect on when we last had a food-borne typhoid outbreak in Europe or, indeed, in the United States where a very similar system is in force.

Now to put this firmly in the context of Brexit, what the UK will be doing when it leaves the EU (without a comprehensive agreement) is detaching itself from this complex, multi-tiered system. But, with the weight of history and experience behind it, it is not going to rely on a fragile system of border controls.

Hence, upon the UK (which will become a third country), the EU will superimpose a layered system to replace that which has been abandoned. So, this is not a matter of "bureaucracy". This is not something that can be sorted and it is not something that is going to go away.

The trouble is though, there is a huge credibility gap here. Some ten years ago, I wrote a piece called "Invisible Government", remarking on the complexity of modern government and how much of the detail was unknown to most people.

And that really is a problem. So few people know how the detailed business of government operates that they do not understand what is involved. And when, as is the case, we are exposing the system to fundamental changes, there are bound to be consequences. But if people don't even know that the system exists, it is unsurprising that they don't get too concerned about the details.

My further problem is that, to get the message over, one has first to explain the nature of a complex system, how it works, why it works, what we are losing and what has to be done if we are going to mess with it.

Personally, I also find it interesting how my fifty years of background in food safety – with a very rare PhD in the subject – seems to count for nothing when it's up against the ranks of self-appointed Brexit "experts", their media hangers-on and think-tank starlets.

This is especially serious when we have an information environment where people simply do not do detail. They are not interested in detail and the moment an attempt is made, you can see eyes glaze over. It's all "bureaucracy" and, with a little bit of good will, everything can be sorted.

But what I wrote in 2008 stands as much today. When "invisible government", disappears and no one realises it has gone, because so few knew it was there in the first place, that has the makings of a tragedy.

If we are going to mess around with complex systems, then we need to know what we're doing and the potential consequences. Yet, as we listen to the MPs prattling their way through the debate in the House of Commons, amplified by the echo-chamber of the media, I don't get any sense that there is any understanding of what Brexit really involves.

It just so happens that food safety (and in particular cross border trade in food) is one of the oldest and best-established areas of community activity. The interest goes back to the directives of the early 60s, when the EEC was in place and we hadn't even joined.

Since then, what is now the EU has got itself involved in a huge number of safety-critical systems. And while one can so very easily rail against the bureaucracy inherent in these systems – and the general inadequacies of their laws – what we should not be doing is countenancing rapid change that will cause unnecessary stresses in safety-critical systems.

And this is where we came in with Flexcit. Far from supporting the idea of the EU's Single Market, it was always my objective that it should eventually be abolished. But what you simply mustn't do is dismantle systems that have taken many decades to build up, without taking the time to ensure that there are workable alternatives in place. Hence, there was always a need for a plan, and there still is.

Those of us who have been involved at the sharp end, away from the comfortable offices and the sneery certainties of the Westminster village, know how fragile some of the systems really are, and how easy it is for things to go wrong. Such things go beyond politics, or should do so. Those people who are messing with Brexit are not only changing people's lives - they are putting them at risk.

Whatever one might think of Brexit – and I am not going to entertain that debate here – it is incumbent on government to manage the process effectively. So far, we are not seeing any evidence that government is discharging that duty. But not only does it need to get a grip. Parliament also needs to take a long, hard look at itself. It too needs to remind itself of where its duty lies.

We have got to the stage now (and have been for some time) when the prattle has to stop. But is there anyone left in Westminster who is capable of doing anything else?

Richard North 07/12/2018 link

Brexit: a statement of the bleedin' obvious

Thursday 6 December 2018  

Now that we have seen it, what is remarkable about the legal advice to the government on the withdrawal agreement is how unremarkable it is.

Readers of this blog are far from being the only ones who would have found the advice telling them very little that they didn't know already, especially in terms of the headline issue – the possibility that the customs union could become a permanent feature of the agreement, rather than the temporary arrangement that the government insists it will be.

We also have confirmed to us that there is no unilateral mechanism for extracting ourselves from the UK-wide customs agreement in the event that we are unable to reach a subsequent agreement. This remains the case even if the parties are still negotiating many years later, and even if the parties believe the talks have clearly broken down and there is no prospect of a future relationship agreement.

In a helpful addendum though, we find Geoffrey Cox (pictured), the author of the advice, warning that the resolution of such a stalemate would have to be "political". This, from the government's own lawyer, is a clear shot across the bows of the noisy claque of lawyers who have sought to "own" the Brexit debate and exclude those whom they regard as lesser mortals from it.

That does at least remind us of an unalterable truth about treaties. Although they are clothed in the word of the law, and the courts are increasingly involved in their administration and interpretation, they remain essentially political instruments – made by politicians and, in the final analysis, to be disposed of by politicians.

With so little new to add, though, it is entertaining to read the "take" of the Irish Times. Sharing almost exactly my view, journalist Cliff Taylor decides that, from the Irish viewpoint, the conclusions of the legal advice are merely "a statement of the obvious".

It is only in the hothouse atmosphere of Westminster they are being treated as "incendiary", although the indignant surprise is largely feigned. Even our MPs cannot be so lacking in political intelligence that they weren't already fully well aware of what the legal advice might say.

That, of course, leaves the only unknown of any consequence – what the MPs are going to do when they come to vote on the package next Tuesday. But here, there are so many permutations that even many MPs probably don't know which lobby they are going to walk through.

One interesting facet of this whole affair is that the general public seem to be more sympathetic to Mrs May's plight (even if it was self-induced) than are the majority of MPs. That could well affect sentiment, after MPs return from their constituencies over the weekend, having sounded out local opinion.

However, despite issues of monumental importance being at stake, with massive long-term consequences for our nation, the bubble, rather typically, is more concerned with the short-term career prospects of the prime minister.

Amongst that, we get Nick Timothy, one of the people least qualified to comment on events, pontificating that, as a result of Dominic Grieve's amendment, "a no-deal Brexit will almost certainly be stopped".

This same lacuna graced the front page of The Times yesterday (print edition). A significant number of politicians and journalists apparently believe that parliament, by way of an amendment to the government motion, can instruct Mrs May to reopen negotiations with Brussels, thereby preventing a "no deal" scenario taking effect.

One really does wonder what it will take to eliminate this mistaken belief from the system. But when the government cannot force the EU to come back to the negotiating table, and where "no deal" is the default option in the event that the withdrawal agreement is not ratified by parliament, it is a matter of astonishment that supposedly sophisticated political actors can get it so wrong.

Since Nick Timothy was Mrs May's trusted adviser at the time of her Lancaster House speech, it is hardly surprising that she sought to remove the UK from the Single Market without understanding the implications of what she had done, or even clearly realising that this is what she had done.

And now this feeble little man asserts that, if the Government loses next Tuesday's vote, we will be left with two likely options: the Norway model, or a second referendum.

It is not possible to be sure precisely what Timothy means by "Norway model" – probably, he has only a vague idea himself. But, if there are any guarantees in this world, one we can rely on is the simple premise that this will not be going to Brussels any time soon. And nor indeed is it at all likely that we will be seeing a referendum launched as a response to a parliamentary rejection of the withdrawal agreement.

The procedure that must be followed is set out in the European Union (Withdrawal) Act 2018 – Section 13 refers. Within 21 sitting days of the agreement being rejected, a minister must make a statement to the House and then, no longer than seven sitting days afterwards, the government must table a motion to the effect that the House has "considered the matter" of the statement.

It is this that can now be amended and possible amendments that are being touted are the demand that the government either go to Brussels with this fabled "Norway model", or that a referendum is launched – although on what has not been specified. One presumes that the People's Vote activists will want to put the May plan to the test.

But if neither of these is a practical proposition, the alternative is that the House either accepts or rejects the motion. Where the former takes us is too early to say, but the latter could lead down the path to a vote of confidence. Again, the outcome of this is hard to call.

Yet another permutation is creeping onto the agenda though, as we see news that "cabinet ministers" are urging Theresa May to delay Tuesday's vote, for fear that a defeat could be so catastrophic that it could bring down the government.

Some MPs, on the other hand, are still harbouring the illusion that they will get the vote, whence they can vote it down in order to send Mrs May back to Brussels to renegotiate the "backstop". That could possibly be another outcome of the government's motion on the statement, although it is yet another which does not lie within the realms of practical politics.

What all this amounts to, therefore, is that no one has any real idea what might happen over the next week or so. However, there is a fixed point looming in Mrs May's diary – the European Council on 13-14 December. The prime minister will be expected to give her fellow European leaders some indication of progress. If she arrives empty-handed, it is likely that she will not be greeted with the greatest of enthusiasm.

But overshadowing the thinking of the "ultras" is the spectre of Brexit being abandoned altogether. Mrs May so far has been consistent in her determination to see Brexit through and, even if the ECJ does formally allow unilateral revocation of the Article 50 notification, she says she has no intention of exercising that option.

However, the continuity remainers have been nothing if not inventive in launching road blocks to the Brexit process. Stopping Brexit is not being ruled out altogether, the fear of which could drive some Tory rebels to support Mrs May's plan.

Yet, in her increasingly desperate efforts to garner support, Mrs May isn't doing herself any favours. Her latest ploy is to promise a "parliamentary lock" – giving MPs a vote before the backstop could be implemented.

If a proposal to introduce unicorn farming would be more credible, it says something of the Brexit process now that the collective fantasies of the political classes are now driving the agenda. And where we go from there is very far from bleedin' obvious.

Richard North 06/12/2018 link

Brexit: ironies galore

Wednesday 5 December 2018  

One must be careful about the ECJ deliberations on whether the UK could unilaterally revoke its Article 50 "notification of the intention to withdraw from the EU". The full court has not ruled on the matter yet. All we have seen is the proposal of Advocate General Campos Sánchez-Bordona, as to what the ECJ should declare when it rules in about two weeks.

For those interested in such matters, the Advocate General – having noted that the matter is not addressed specifically in the Article - has turned to the relevant provisions of the Vienna Convention on the Law of Treaties (VCLT) on which Article 50 TEU is based.

There, he finds that Article 68 permits notifications of withdrawal from an international treaty to be revoked at any time before they take effect. And since the EU treaties are still regarded as international treaties, Bordona has chosen to apply the provisions of the Convention.

The law being the law, however, it could have gone the other way (and still might). As I remarked in a piece written two years ago, he could have relied on the legal maxim, ubi lex voluit, dixit; ubi noluit tacuit.

This means, in effect, that where the law (treaty) has no wish to regulate a matter, it remains silent. Thus, because Article 50 specifically does not deal with the matter of revocation, it must be assumed that revocation is not permitted. If it was intended, the Article would have said so.

This, of course, relies on the principle of lex specialis derogat legi generali – specific law overrides general law. If European Union Treaty provisions could be taken as overriding Article 68 of the Vienna Convention in the absence of explicit provisions in the treaties, a right to revoke the Article 50 notification cannot be assumed.

However, the Advocate General does not rely entirely on the VCLT. A little past the top of the second page of the press release, he deploys what might be considered a "bombshell" argument.

Because withdrawal from an international treaty is the reverse of a treaty-making power, it is by definition, he avers, a unilateral act of a State party and a manifestation of its sovereignty. Thus, unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision.

The irony should not go without remark. We are dealing with the ECJ, an organisation which has an effect on sovereignty similar to that of Kryptonite on Superman. And a senior officer of this institution is stepping in to protect the sovereignty of a nation which is leaving (in part) because of complaints of loss of sovereignty.

But the irony doesn't stop there. The activists behind this case are motivated primarily by their desire to reverse the result of the 2016 referendum, all so that we can continue to ladle the powers of the UK government into the maw of Brussels.

Similarly, never in recent times do some members of the Commons seem to have been so fiercely motivated to defend the powers of their "sovereign" parliament as when they are faced with a return of power from Brussels, and want to give it back. The only time we see them acting as jealous guardians of parliamentary sovereignty is when they want to reduce their own powers.

If his proposal is endorsed by the full court, the Advocate General may have made that process easier, but not just by allowing unilateral revocation of Article 50. Further into the ECJ press release, we see the observation that a Member State is required by Article 50 to frame its decision to withdraw from the EU "in accordance with its own constitutional requirements".

If this is "projected onto the subsequent phase" (of negotiating the terms of its withdrawal with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State's constitutional procedures, its constitutional foundation will disappear.

If one takes that a little further, it could have massively important implications. What Bordona is saying, in effect, is that the decision to withdraw from the EU is valid only as long as it is underwritten by its constitutional foundation. By contrast, therefore, if the foundation "disappears" the decision is no longer valid.

Since the Miller et al case in the Supreme Court, it is now undisputed that the "constitutional foundation" amounts to a vote of approval by parliament. Now, according to Bordona,if parliament withdraws that approval, the UK's Article 50 application is no longer valid. 

That this removal could now happen came with another event of yesterday, when Dominic Grieve won a motion in the House, by 321 votes to 299, to amend a standing order on what amounted to an arcane procedural matter.

What this does is address the situation where parliament rejects the Government's negotiation package. When that happens, a provision of the European Union (Withdrawal) Act 2018 kicks in, requiring a Minister to make a statement of intent on the government's proposals, followed no later than seven sitting days afterwards by "a motion in neutral terms, to the effect that the House of Commons has considered the matter of the statement".

Until yesterday. under the provisions of Standing Order No. 24B, this motion could not be amended by anyone other than a Minister, a situation changed by Mr Grieve's amendment. The Standing Order has been disapplied and MPs are free to table their own amendments, for selection by the Speaker.

It is at that point that a motion could be introduced, overturning the approval of the Article 50 notification, thereby removing its constitution foundation and rendering it invalid. Here, though, Bordona suggests that "certain conditions and limits" should apply to unilateral revocation. First, he says, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council.

While the nature of that "act" is not specified, if one assumes that it constitutes a formal notification by HMG, then Mrs May will continue to exercise some control. She can block the process by refusing formally to communicate the parliament's action to the Council.

However, that writ only applies to unilateral ratification. If the constitutional foundation has "disappeared", what is to stop a further reference being made to the ECJ – perhaps by the President of the European Council (maybe at the request of UK MPs). And, if the Court then ruled that the notification was no longer valid, the UK's bid to leave the EU would lapse.

Until we leave the EU, of course, we are still subject to EU law, and if the ECJ rules that our Article 50 notification is no longer valid, we really have nowhere to go. An appeal to the UK Supreme Court could only deliver the same finding as the Luxembourg court.

Arguably, therefore, we are closer today to being sucked back into the maw of the European Union than at any time since the referendum. And, under writ of the ECJ, there is not even any need for the uncertainty of a referendum before the event.

Rather, we might find that the government's response to a declaration of invalidity would be to hold a new referendum, to confer a new mandate. In the absence of an unequivocal victory for "leave", we could find parliament refusing to authorise a further Article 50 notification.

And that leaves space for just one final irony. Tucked in the Telegraph today is an authored piece from Nigel Farage announcing that he is leaving Ukip, thus abandoning the party to the extremists who will drive it to extinction.

Farage is not without responsibility for that state of affairs. As I remarked on Sunday, not only did he desert the party after the referendum, leaving it open to a take-over, his failure to bring forward suitable successors has left the leadership vacuum which Batten is now filling.

Furthermore, it was Farage who progressively weakened the NEC, with successive changes to the party constitution, leaving it ill-equipped to bring an errant leader to book. Now a toothless cypher, it is effectively a bystander at the death throes of an organisation that once had the mighty Conservative Party running scared.

Now, when we probably need Ukip as much as we have ever done – if not more – we have an empty shell of a party and no rallying point. All we have to rely on are the untrustworthy Tories, where Mrs May will use the ECJ intervention as further grounds for supporting her plan.

We are rapidly coming to the situation where the best possible outcome for leavers is Mrs May's plan. Increasingly, there is the prospect of us not seeing Brexit at all. But then, Farage might get to keep his job. Who will claim credit for that, I wonder?

Richard North 05/12/2018 link

Brexit: contempt all round

Tuesday 4 December 2018  

It is a little hard to get excited about Speaker Bercow ruling that there is "an arguable case" to make that Mrs May's government is treating parliament with contempt. There is nothing new there at all, as the government quite routinely treats both Houses with contempt – and not without good cause.

In fact, this is more like one of those old-fashioned lovers' triangle, where each treat each other with contempt, both treat the public with contempt, and the public tends to reciprocate, treating the whole damn lot with contempt. And on top of the dung hill is Bercow, whose greatest contempt is for the hard-pressed taxpayers who have to bear his over-generous expenses, right down to his drinks bill and Sky TV package.

One is aware, however, that the term has a technical dimension, in that the government has failed to publish the legal advice available to the cabinet on Brexit when it made its formal decision to back the prime minister's plan, following a humble address ordering its publication.

As always, however, the politicians are playing games – and especially opposition MPs, who see in the government's stance an opportunity to make mischief. There is no yearning desire to improve their knowledge on the withdrawal package. The explanations they need – or as good as they will get - were published yesterday.

What is perhaps significant about this document – and others like it - is how little of substance they are telling us that we don't already know and hadn't worked out on the first day of publication.

The key issue in the draft withdrawal agreement remains the Protocol on Ireland and, within that, the touch-paper item is the backstop and the ability (lack of) to withdraw from it unilaterally in the event that we fail to reach an agreement on the future relationship.

The point I made, up front, was that nothing in the political declaration could lead to any arrangement which would ensure frictionless trade across the border. And, on that basis, the criteria set for the EU to release the UK from the backstop could not be satisfied.

Nevertheless, Attorney General, Geoffrey Cox, would have it that the parties "would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes [the backstop]". But the fact remains that there is no satisfactory arrangement that can be agreed, on which basis, the theoretically temporary backstop would effectively become permanent.

Predictably, this has become the point (or the main point) on which as many as 200 MPs may or may not vote against the plan, with many MPs having convinced themselves that a major defeat will force the EU to re-open the negotiations.

Even though the chances of that happening are as close to zero as makes no difference, that hasn't stopped Nick Boles leaping out of the woodwork with the latest iteration of his "Norway Plus" master plan.

With the hubris that only an ego-centric Tory MP could manage, he triumphantly tweeted about hoping:
… that our Norwegian friends have noticed that we have listened to their concerns and adapted the proposal. All the MPs supporting Norway Plus understand it implies indefinite membership of the EFTA pillar of the EEA. We'd be in it for the long haul.
This prompted Chris K-B, a less than impressed observer, to ask Mr Boles, "How on earth did you not realise this from the outset?" Suggesting that our Pete is right about the man, he goes on to say: "I'm a dad to two young children and I have a job, a hard one, and a busy life, and I'm not an EU expert and I'm not very clever, but even I knew this".

It was then left to Chris to express a sentiment that needs to be addressed to the bulk of our MPs, and in as direct a form as possible: "Up your game or fuck off", he says.

In an  article – the only paper which seems to have carried news of the conversion to the indefinite membership – Mr Boles makes great play of having "listened to criticisms". And, when he has modified the proposal to meet them, he proudly declares that he has "not pretended that nothing has changed".

One would not be aware from his article however, that Mr Boles has been very selective in the criticism he has listened to. Despite having been told, unequivocally, that a customs union is unnecessary in the Efta/EEA scheme, he has us staying in the EEA and [re-]joining Efta, yet still "moving into a temporary customs union with the EU until we've agreed new arrangements with the Republic of Ireland and the EU".

Nevertheless, we are not told what those "arrangements" might be, even though nothing in a customs union adds anything to the Efta/EEA option that could not already be provided by the EEA Agreement or which will help maintain frictionless trade.

Not only do we have this incoherence, though, the man has been listening to the naysayers and completely thrown in the towel on free movement. One major downside, he says, is that we would still be bound by the principle of "free movement".

Bizarrely, he then goes on to say that, under the EEA agreement, we would also have the opportunity to exercise an emergency brake on free movement if it causes "serious economic, societal… difficulties". The brake, he adds, "has never been used and we don't know precisely what it would achieve, but it is a legal remedy that we did not have as members of the EU and it would give us additional leverage in a negotiation".

Still mistakenly referring to the "emergency brake", he thus ignores a substantial body of work, including Monograph 1 and Monograph 10, which have been drawn to his attention. This is classic behaviour of the breed – the inbuilt arrogance that has Boles position himself as a superior being who can ignore the work of us "invisible" plebs. He has his own brand of contempt down to a fine art.

The reality is, though, that Mr Boles's efforts are wasted. Even if his work was sound – which it isn't – the EU has made it very clear that it is not prepared to re-open negotiations. Thus, his ambitions of having "Norway Plus" used as a Plan B in the event of Mrs May's plan being rejected by parliament, will come to naught.

Even then, there is further incoherence. Mr Boles would have MPs supporting the withdrawal package, so that the UK could leave the EU next March and "enter" the EEA (despite his saying we're supposed to stay in) and Efta at the end of 2020. This has certainly confused the Mail which has the man setting out a proposal for Britain "to stay in the EEA until a free trade deal is negotiated - effectively to leave the EU but stay in close orbit as a member of the single market".

In the real world, though, we would be committed to Mrs May's package, which includes the political declaration. To shift from this would require a major change of direction and a willingness of the EU to abandon its current plans for a future relationship. That is not likely to happen.

Probably, the only workable scenario for an agreed settlement is to run with the withdrawal package as it stands, negotiating a comprehensive trade agreement to take effect at the end of the transition period. This would have to have a strong element of regulatory alignment, amounting to a "shadow EEA", effectively the EEA Agreement in all but name.

Only after that, could we then seek to transform this agreement into a fully-fledged Efta/EEA membership, which might take three or more years to negotiate. By that time, of course, everyone will have forgotten about "Norway Plus", while Mr Boles will have found something else to play with. And, as it has been since 2014, Flexcit will still be there.

Richard North 04/12/2018 link

Brexit: parallel lives

Monday 3 December 2018  

It was early evening yesterday before I finally went an hour without having to block an abusive tweet from my timeline - some 24 hours after my original tweet. Even though Michael Gove can warn Andrew Marr that holding a second referendum on Brexit would "undermine faith in democracy and rip apart the social fabric of this country", it seems I'm not allowed to say something to like effect, without having to suffer a torrent of abuse. 

I'm not even sure though whether I find this more offensive than the preachy lectures that some readers feel entitled to publish on this blog's comment facility, but my response to either is the same. There is no point in engaging.

But that, in its own way, illustrates the way the political discourse is developing in this country. The age of the internet, with the massive outgrowth of information available to us all, has not led to a new blossoming of the age of enlightenment.

Rather, the control afforded by the internet enables individuals to select their sources from increasingly narrow spectra. They then need only refer to opinion that pleases them and reports of events presented in ways which support their prejudices. But enough passes through the filters for the recipients still to claim that they are well-informed.

Unfortunately, there is no obvious way round this. The volume of information is such that one must filter it if one is not to be overwhelmed, and we would be less than human if we did not choose, of preference, those sources that we trust and which do not take us out of our comfort zones.

From this, one could argue that the ultimate consequence is a fractured society – although one must take care not to confuse chicken and egg. Are we being more partisan in our selection of information sources because we are a fractured society, or are we a fractured society because we are increasingly partisan in our selection of information sources?

Perversely, there is one thing we cannot claim to be, with access to the unimagined wealth of information – and that is more informed. This might be one very real area where more is less.

This struck me as I was scanning an editorial from the Guardian - something which I rarely bother to do. On the eve of a week-long debate on Brexit in the House of Commons (when the chamber, for the most part, will be near-deserted), the newspaper declares that: "it is time to choose". There are four options, it says: May's deal, a softer deal, no deal or a second referendum.

Tucked into the text, though, is the devil's work – an insidious distortion that has that paper declare that the question that faces MPs is whether "the EU withdrawal agreement and the declaration on the future framework of relations … are an acceptable basis for Brexit to go ahead".

This allows this long-standing Europhile newspaper to announce that, in its view, the two documents are not a sufficient basis for Brexit to go ahead – the natural inference being that Brexit should be abandoned if they are rejected.

But that is not the question before the House. Whether we should leave the EU was settled first by the 2016 referendum and then the parliamentary vote. Thus, MPs are being asked to address the phase of the process brought about by the decision to leave - how we should achieve our departure, encapsulated in Mrs May's deal.

If the MPs reject the deal then the obvious consequence is that we end up with no deal. This is the default value which kicks in automatically. Even then, there are still parliamentarians – including those in the higher ranks of the Labour Party – who believe that the Article 50 process can be stopped by Westminster procedures. It can't.

At this point, neither is there provision for re-opening negotiations, so that effectively rules out the Guardian's "softer Brexit" in the form of the "Norway Plus" option. In any event, this is not a viable option. Any workable plan based on Efta/EEA membership would take some years. If this was to be negotiated, it would have to wait until the end of the transition period – as long as that was possible.

Basically, therefore, the only way to avoid a "no deal" scenario - in the event of the MPs voting "no" - is to abandon Brexit altogether – which is what Mr Gove seems to be asserting. Although we have not yet had a ruling from the ECJ on whether a unilateral revocation of Article 50 is possible, there is a likelihood that unanimous agreement (or even by QMV) on revocation could be allowed. In theory, this makes it a possible option.

It is being argued that we would need an Act of Parliament before the Government could apply for revocation, which may or may not be the case. Assuming that the EU agrees – which isn't a foregone conclusion - it is inconceivable that the move could be made without another referendum. As to any result, that could go either way.

Here, though, the Guardian gets it right, saying that this "would deepen bitter national arguments still further". We are getting back to my civil disturbance theme again. In this context, it is well worth reading this analysis by John Lichfield of the gilets jaunes disruption over the weekend.

The savage violence in Paris was not a protest, he writes, but an insurrection. It was not largely the work of a fringe of casseurs (thugs) and professional trouble-makers. Nor was it provoked by the riot police, who behaved with almost super-human discipline and restraint.

Despite lurid claims to the contrary, at least 70 percent, by Lichfield's reckoning, were not urban guerrillas from the ultra-right or from the anarchist left. They were amateur provincial guerrillas overwhelmingly hailing from the "suffering areas" of northern or western France or from the outer Paris suburbs. Mostly, they were men in their 20s and 30s but there were many older men and some women.

As to the violence, this was "at once planned and disorganised", but the most extensive destruction was in the capital, the worst in central Paris since 1968. On the face of it, it was a continuation of protests that started a month ago as a rebellion against green taxes and a spike in petrol and diesel prices but, since then, it has morphed into a wider cry of anguish against the high cost of living, unemployment and poor local services in small provincial towns and hard-scrabble outer suburbs of the thriving French metropolitan areas.

Emmanuel Macron and his government, says Lichfield, were undoubtedly slow to take the movement seriously but it is foolish to blame the long-standing problems of Peripheral France on a president who has only been in office for 18 months. It is time for opposition politicians in France to stop pretending that Macron is the only source of yellow jacket anger.

In what might be seen as a chilling parallel with the UK, Lichfield goes on to say that "many, many yellow vests are decent, frustrated, suffering people". They no longer believe that any of the mainstream political movements – or even Marine Le Pen's Far Right or Jean-Luc Mélenchon Hard Left – will do anything to help them.

They talk of a new "movement of the people and for the people" but have declined so far to choose recognised leaders or to put forward a united programme. "This instant, anti-political, political movement not only detests the young technocratic President who was elected only last year. It detests anyone from within its own ranks who “put themselves forward as above the rest".

And what is so striking about that is not the tale of differences, but how uncannily similar to the UK it looks – two different societies but parallel lives. There is that same, huge reservoir of resentment, disenchantment with politicians and the political system, and the "left behinds" outside the capital who feel the system is no longer working for them.

In the event of a "no deal" Brexit, it does not take a rocket scientist to work out what might happen. Even Bloomberg's Therese Raphael can manage a stab at it:
... we won't see the Victorian stoicism of the stiff upper lip. Someone will begin passing out high-visibility vests or another symbol of defiance. It may not be immediate, but chaos, loss, uncertainty and disruption will breed palpable anger. It may be Leave-voting forces in hard-up areas, those who have the most to lose from a no-deal Brexit, who protest in favor of no deal; as in France's riots, causes can be co-opted and arguments conflated. There is a lot of anger in the U.K. Stabbings and violet crime have been on the rise. So has opioid use. Britain is a hugely successful global economy, but that masks the fact that it also houses some of northern Europe's poorest regions.
The scenario I outlined in my blogpost was exactly a "no deal" scenario, but one where the government then took fright and sought to re-join the EU "without due process" – i.e., without a referendum or even parliamentary approval. Yet, even the suggestion of a violent outcome was enough to trigger the reaction I have experienced.

That said, those who think Brexit is going to mend our broken society are going to be disappointed. But then, the purpose of Brexit is to get us out of the EU – not to resolve the entire range of society's problems. And, by the same measure, anyone who thinks another referendum will solve anything will be equally disappointed.

Brexit cannot be the repository for all the ailments afflicting our society, any more than it can be that elusive solution. Just getting us out of the EU is proving hard enough, without ladling even more problems into the mix. And if violence is the end result, it is unlikely to help us forge a solution. Things will just get messier and more brutal.

However, the point has been made from numerous quarters that a potential outcome of what we might consider a "bodged Brexit" could be a serious outcrop of violence. If Lichfield has it right, this could amount to insurgency. We are not so very different from the French that it would be wise to ignore the possibility. And that puts a great deal of pressure on MPs, this week, to get it right.

The only small problem is that, immersed in the tumultuous noise of the Brexit debate as we all are, I'm far from certain that anyone knows what "right" is any more.

Richard North 03/12/2018 link

Brexit: that sinking feeling

Sunday 2 December 2018  

There was a time once when Ukip played an important part in the process of what became Brexit. But once the party had been abandoned by Farage in the wake of the referendum, as the former leader pursued his own career, it was eventually taken over by Gerard Batten – and only had one place to go.

And now, if we're to take the word of The Sunday Telegraph, the party has all but arrived. Not only has Batten appointed Tommy Robinson as his personal advisor, it appears that there is another extremely suspect member of his retinue.

This is Daniel Thomas, 29, who appears to have been heavily involved in the organisation of a "Brexit Betrayal" march and rally to be held in London next weekend. Yet this is a man who has a conviction for attempted kidnap, and has served a jail sentence for the offence.

At the rally, Robinson is expected to speak, which – with the more general links to Ukip – means that no self-respecting "leaver" will go near the event. It will thus reach only a tiny fraction of attendance claimed by the recent "People's Vote" march.

This is one of many ways in which Ukip is letting down the Eurosceptic movement – not that a successful march would have been any help to the cause, given its "leave now" obsession. The physical collapse merely reflects the intellectual deterioration of the party. It is a long, long time since it had anything coherent to offer.

It is all very well, therefore, for Farage then to whinge to the national executive council, urging it to pass a motion of no confidence in Batten's leadership. But not only did Farage desert the party, leaving it open to a take-over, his failure to bring forward suitable successors has left the leadership vacuum which Batten is now filling.

Furthermore, it was Farage who progressively weakened the NEC, with successive changes to the party constitution, leaving it ill-equipped to bring an errant leader to book. Now a toothless cypher, it is effectively a bystander at the death throes of an organisation that once had the mighty Conservative Party running scared.

Another organisation to take a dive this weekend is the Institute of Economic Affairs (IEA). Its star spokesman, Shanker "Snake Oil" Singham is already on the back foot, complaining of being "deeply frustrated" because the prime minister was ignoring his proposals, and now his parent organisation has had to suffer the ultimate humiliation.

It has been forced by the Charity Commission to remove Singham's work from its website and to cease promoting it. This was the infamous "Plan A+", subtitled "Creating a prosperous post-exit UK", an error-strewn 150-pages published in September that constituted Singham's bid for fame and fortune as author of the plan that took the UK out of the EU.

Now, as it stands, Flexcit is still there, unchallenged, while the only place you can get the con artist's oeuvre in the public domain is on the Wayback Machine.

Slapping down the IEA, the Charity Commission decided that the contents were "not sufficiently balanced and neutral as required of an educational charity under charity law". It also found that the IEA "had been undertaking political activity not in line with the charity's purposes".

Ignoring the complaints from Neil Record, chairman of the IEA board of trustees, David Holdsworth, the Commission's deputy chief executive, said: "Charitable think-tanks are first and foremost charities and need to behave as such. It is disappointing that the trustees of some charitable think-tanks appear not to fully understand their duties".

Somebody else getting that sinking feeling this weekend must be no less than Theresa May. When (or if) she reads The Sunday Times, she will find it publishing leaked details of attorney-general Geoffrey Cox's legal advice on the draft withdrawal agreement, which the government has been so reluctant to release.

To nobody's great surprise, the advice contains "a stark passage" that makes clear the UK could end up locked in the "backstop". In a letter to cabinet ministers last month Cox thus declared: "The protocol would endure indefinitely". The only way we could escape it he says, is to sign a new trade deal, which could take years. But he also warned that the UK could remain trapped if those talks collapsed.

This is more or less what I wrote the day after publication of the draft agreement, pointing out that it was most unlikely that the UK could agree a free trade area which would deliver frictionless trade across the Irish border. "As the agreement stands", I wrote, "it is possible to see a scenario where the UK is locked in perpetuity into a customs union with the EU".

A week later, it is nice to have the attorney-general confirm what we managed to work out within hours of publication of the draft. But the details, we are told, "will enrage Eurosceptics and are likely to harden opposition to the deal". Unsurprisingly, a cabinet source says: "The legal advice is very bad, which is why they don't want anyone to see it".

With only nine days to save her "historic" Brexit deal, with 100 or more Tory MPs apparently determined to sabotage it, Mrs May most certainly should have gone to the Brexiteer's equivalent of Specsavers – the Efta/EEA option.

Booker returns to that theme in his column today – which the paper hasn't yet published, despite a full house of all its other columnists. When the Sunday Telegraph gets round to putting it online, readers will find it saying that after 20 months of negotiations Theresa May can only now ask Parliament to make a seemingly impossible choice.

That choice is either to support a deal largely dictated by the EU – the nature of which the Sunday Times has just confirmed, or to leave with "no deal". The first is so poor that even the Treasury can only present it as an economic disaster. But the second, the Treasury computer model guesses, would be an even worse disaster.

It was unsurprising, therefore, that in all the resulting confusion, we last week saw a strange little cross-party alliance, including Tory and Labour MPs, Northern Ireland's Arlene Foster and various others, forlornly reviving as a "Plan B".

Unlike Mr Singham's now invisible "Plan A+", this is "Norway Plus", their version of a Norway option which, in its original form, retained access to the single market, with us re-joining Efta and thus remaining in the wider EEA.

While the MPs supporting the bastardised version which has them wanting to take us into an entirely unnecessary customs union, there are those of us who, after prolonged study, have been urging a proper "Norway option" since well before the referendum as the only rational solution to most of the problems now becoming so obvious.

But what is so striking is that none of these belated converts to the idea, let alone those who have been only too quick to ridicule it, have been able fully to grasp what this could have brought us.

In particular, as Efta members, it would, surprisingly, have given us more influence over shaping EU trade rules than we had previously, despite the unending mantra spewing from both politicians and media that arrangement turns us into a "rule taker".

Scarcely any MP has managed to get to grips with Article 112 of the EEA Agreement, under which we would have been free to exercise selective control over immigration from the EU.

And not one politician or journalist has mentioned the additional bilateral agreements (Norway has around 50 of them) with the EU that we would need, to cover such issues as aviation and VAT. Only with these and substantial amendments to the EEA Agreement could we secure virtually "frictionless" access to by far our largest export market, and solve the Irish border problem.

Properly understood and explained, all this could have united the nation as by far the least damaging option available. But because Mrs May was too much under the spell of her Brexiteers, this was what she rejected in her Lancaster House speech; although it was part of the reason why Sir Ivan Rogers, our much more clued-up ambassador to the EU resigned just before that speech, warning darkly of "muddled and ill-informed thinking" at the top.

And that is why Mrs May is stumbling doggedly on towards the utter chaos we see today, threatening to land us with by far the gravest economic political and social crisis our country has faced since World War Two. The tragedy is that this was only too easily avoidable.

That this could even lead us to civil disturbance was the theme of yesterday's post (and a Twitter thread), which had what Pete calls "FBPEtards" spitting with rage and accusing us both of inciting violence - and getting Pete banned on Twitter for a week.

Not a single complaint was heard, however, when the Guardian aired the same concerns. The sinking feeling thus spreads as we confront the growing antagonism and faux outrage from people with demonstrably limited reading skills. There feels to be no end of what seems to be a bottomless pit.

Richard North 02/12/2018 link

Brexit: countdown to disorder

Saturday 1 December 2018  

There was a time when we would have been pleased to see a headline declaring: "Eight Cabinet ministers hold secret talks about 'pivoting' to Norway if PM's Brexit deal is voted down", even if the EU has ruled out further talks.

Unfortunately, though, it is the Telegraph which is running the story and its idea of the Norway option is the plan "being championed by Nick Boles, a former Tory minister". In other words, it is not the Norway option at all. 

It is perhaps also significant that, while those who have become familiar with the option now label it the "Efta/EEA option", while the newspapers still call it by its earlier, less accurate title. But then most of the media is so far behind curve that it's hardly worth bothering with them – the Telegraph advising us that, "under the Norway scenario the UK would retain access to the Single Market after Brexit but be forced to accept continued free movement".

Sadly, that is also the view of the prime minister, who thereby claims that it would not deliver what people voted for in the EU referendum. And, with that, she has refused once again to consider it – not that there is any value in her so doing for the moment. We have to play out the May plan to the bitter end, before we can even start to think of something else.

All we can take from this, therefore, is fresh evidence of the unending capability of the political classes – from top to bottom – to mess up a good idea, or to fail comprehensively even to understand it.

If I hadn't already remarked on it numerous times, I might now be tempted to write a blogpost on the intellectual poverty of our politicians, perhaps spurred on by a comment from Stephen Kinnock who argued that the Telegraph's James Rothwell had "extensively researched" the Efta/EEA option.

Yet, this is the journalist who writes of Norway that it "is not an EU member state but pays millions into the European budget each year and follows EU regulations - without having a say in their drafting - in exchange for market access".

Thus revealed is the level of sheer, pig ignorance we're getting from a leading national newspaper, only for the man responsible to be cited as an authority by an MP. That is a reflection of how far down the rabbit hole we have gone, although I have long observed that perhaps the only people left in the world who believe what they read in the papers are politicians.

As for Rothwell, I rather unkindly observed that his attempts to instruct us on the intricacies of Efta/EEA membership was rather like watching a two-year-old gravely instruct his mummy on how to change a nappy – in practical terms a complete waste of time, but pure comedy gold.

The problem though, is the players in such dramas are so bottled up in their own little bubbles, and so isolated from the real world, that they have no idea how awful they are. 

As long as the politicians and media can indulge themselves in their never-ending ritual of mutual grooming – with the clapping seals in the background – they never need to step outside their cosy isolation and confront their critics. We simply do not exist, having acquired the same patina of invisibility that is conferred upon elephants when they take up residence in diverse rooms.

One journalist and author who is clearly in his own bubble – divorced from the consequences of his own rhetoric – is Will Black who took it upon himself to declare on Twitter yesterday that: "For many people, stopping Brexit will be the UK's biggest achievement since defeating the Nazis", claiming: "We are closer to stopping Brexit than we were to defeating Hitler in 1944".

In this case, the infelicitous use of language and the immoderate assertions brought from me the response: "If you actually get close to stopping Brexit (not that you will), you will find you have a bigger battle on your hands than the nation had with Hitler. You will spark a civil war, the likes of which will rip the country apart".

This is a view that can be found elsewhere but, nevertheless, my post sparked the nearest thing I've been to a "Twitter storm". My response was to publish a short thread, explaining my concerns about the possibilities of war. There are, I noted, many levels of war, from the full-blooded heavy metal type to the low-grade insurrection amounting to chronic civil disobedience and occasional outbreaks of violence.

The latter can be a variation of the "four block war", a phenomenon noted in Iraq where, in one city block there was peace and normality with shoppers in the streets, while four blocks away, there was a raging gunfight. Moving on from total war, conflict can be a highly localised event, shifting from place to place with bewildering rapidity.

Not infrequently, the cause is the breakdown of the social compact. And in this country where we have been largely demilitarised and do not have ready access to high volumes of firearms, we are more likely to see low-grade conflict. However, it can escalate, especially if people develop IED-making skills. Even at a low-level, conflict can still be dangerous.

A crucial point about such conflict is that it does not require large numbers to pursue it. At the height of the Troubles in Northern Ireland, it was estimated that active members of the Provisional IRA in Belfast numbered only hundreds. But once the social compact fractures, there is created Mao's "fish in the sea" environment where anti-state activists, with the tacit support of their communities, can operate with impunity.

Furthermore, a conflict may start small, with only sporadic violence – indistinguishable from background civil disorder. I noted in my book, Ministry of Defeat, that it took the British Army occupying Southern Iraq in 2003 nearly six months to realise it had an insurgency on its hands, even in the face of sustained attacks.

But what fuels the disorder is over-reaction by the state or neglect of justified grievances – or both. These can easily inflame matters and trigger escalation. With a high-density population of 60 million in the UK, it would not be easy to regain control.

What experience has also shown is that, even in an unpractised population, insurgency skills - such as bomb-making – can be quickly acquired. Information is readily available on the internet if you know where to look, and cannot be suppressed. Materials are commercially available and bomb-placers can range from children to old people. There is no real physical defence against the determined insurgent who has nothing to lose.

For its defences, therefore, society (and the state) relies on violent activity being regarded as the unacceptable exception. As long as the government is regarded as legitimate and there is strong public support for the security services, people will cooperate in efforts to root out violence. But once you take away the legitimacy and erode the support, you have your "war".

That is why it is never untoward to warn about civil war. We are always closer than most people think, with society relying on a skein of consent which is fragile and capable of being broken. People who dismiss the prospect out of hand have clearly never studied history and yet, there were those on the Twitter thread who chose to see in the warnings an overt threat – which is simply not there except in their imaginations.

Already, public authorities have expressed concern about the possible breakdown of law and order in the event of a "no deal" Brexit, but such is the fragile state of our nation, it is no great stretch to ruminate over the possibility of a violent backlash, should a government try to take us back into the EU, without due process.

A "perfect storm" scenario might arise should the nation be forced into a "no deal" scenario, triggering civil unrest, whence a panicked government might seek re-entry to the EU. Isolated food riots could spread out of control and rip into something far bigger and potentially far more disruptive.

It also goes without saying that prominent political activists in the "remain" camp would be obvious targets for mob violence. With the Army thin on the ground and the police heavily stretched, they would be hard-put to protect everyone. It could get very ugly.

On the bright side though, if there is one thing on which Mrs May has been totally consistent, it is in her determination to see Brexit through to the (bitter) end. That what she has negotiated may not feel too much like Brexit, but the path she is currently taking leads directly to a "no deal" outcome. By the end of March, we expect to be out of the EU.

The fact that there are many people disconcerted by this possibility is a given. It is equally a given that we have a fractured nation and that nothing, at present, is having anything that could be described as a healing effect. And I would not be alone in my suspicions that the situation could get worse. 

Richard North 01/12/2018 link

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