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GERMAN COURT SETS ITSELF ABOVE EUROPE

The Federal Constitutional Court (FCC) of Germany this week attacked one of the fundaments of the European Union, the primacy of Union law.  It is long settled practice that, in its field of operation, EU law has superiority over national law.

The FCC of Germany has also rejected the primacy of decisions of the European Court of Justice (ECJ), over decisions of national courts, on the meaning of EU Treaties.

The FCC has furthermore attacked the independence from the politics of any one country, of the European Central Bank.  It instructed the German Bundestag and  the German government to ensure that the ECB did a new analysis of its bond buying programme in light of the principles it laid down. Failing that, the ECB bond buying in question should not be applied in Germany, it said.

This is wrong. It is not the prerogative of any one EU country to instruct the ECB!

I remember how, at the Dublin EU Summit of 1996 which I chaired, Helmut Kohl defended the independence of the soon to be created European Central Bank. He did not want member states to be able to pressurize it to pursue loose monetary policies.

Now, A German Court wants a German government to interfere with the independence of the ECB, something that would have horrified Helmut Kohl.

The decision that  the German FCC announced this week was about the bond purchasing programme of the European Central Bank instituted by Mario Draghi to support the Euro in the wake of the 2008/10 economic crisis.  This bond buying programme was known as the PSPP.

The ECJ had found this PSPP programme to be legal under the EU Treaties, in a decision on 11 December 2018. The German Court this week flatly rejected this ECJ decision. It described it  as “untenable”.

It condemned it in the following terms;

“In its Judgment of 11 December 2018, the ECJ  held that the Decision of the ECB Governing Council on the PSPP and its subsequent amendments were still within the ambit of the ECB’s competences.

This view manifestly fails to give consideration to the importance and scope of the principle of proportionality (Art. 5(1) second sentence and Art. 5(4) TEU) – which applies to the division of competences between the European Union and the Member States – and is simply untenable from a methodological perspective given that it completely disregards the actual economic policy effects of the programme”

 The German Court added that the PSPP bond buying programme of the ECB is “ultra vires (beyond its powers) and not to be applied in Germany” and instructed the German authorities to this effect.

 It even criticised the methodology of the ECJ in reaching its decisions. A remark designed to annoy.

The EU can only work if its laws are interpreted consistently in all 27 EU member states. If a German Supreme Court can overrule the ECJ interpretation of the EU Treaties, so also could the Hungarian Supreme Court or the Polish Supreme Court.

 Soon we could  have 27 different interpretations of what EU law meant, and the EU Single Market would  quickly disappear!

The German Court did say that it was not making a decision about the more recent bond buying programme, introduced in the wake of the Covid 19 outbreak, and which is supporting countries like Italy and Spain, hardest hit by Covid 19.

 But the logic of the German FCC’s  decision this week clearly implies that it would also find against that programme too when, as is likely, the same German litigants bring a case against the new programme before the German courts.

A major showdown is now inevitable, at a time of maximum vulnerability for the European economy.

A robust answer must be given by the EU institutions to the German Court.

The Inter governmental Conference, including the then German government, that finalised the Lisbon Treaty in 2007 said, when it promulgated that Treaty ;

“In accordance with the well settled case law of the EU Court of Justice, the Treaties and the law adopted by the Union on the basis of the Treaties, have primacy over the laws of Member States, under the conditions laid down by the said case law”.

The European Heads of Government, including Angela Merkel, must urgently reaffirm that declaration, and declare their unequivocal support for the ECJ decision of December 2018, and for the independence of the ECB from the authorities of Germany, and from those of  any other EU state.

By undermining the ECJ, the German Court is providing a precedent that could be used by semi authoritarian governments in some EU states, who do not like some EU decisions on matters like the rule of law , academic freedom, or media pluralism.

To be fair, the doctrine underlying the German Basic Law is one which has democracy, and respect for democratic procedures, at its centre. The German Federal Constitutional Court has frequently defended the democratic prerogatives of the German Federal State.

 It has, however, failed adequately to recognise that the EU is a democracy too.

 It has an elected Parliament, to which the ECB accounts for itself.

 That is where German concerns should be pursued, by political means, and not by mischief making court cases, decided by judges who set themselves above the European Union.

EUROPE NEEDS A POLITICAL HEART TO SUSTAIN ITS ECONOMIC BODY

Next Thursday’s European Council is seen by some as crucial to the future of the European Union as a political project.

President Macron of France has raised the stakes saying that unless there is agreement on a fund of 400 billion euros to mitigate the effect of the lockdowns across the EU and the Eurozone, both the Euro and the EU itself will be in danger. He says that

 “If we can’t do this today, the populists will win, today, tomorrow and the day after in Italy, in Spain and perhaps in France”

He is right to issue the warning, but there is a real risk that this sort of rhetoric will create a self fulfilling prophecy. Expectations need to be managed and false dawns avoided. 

Some of the populist criticism of the EU is misdirected, and needs to be contradicted.

 In fact the EU, as such, has responded quite quickly to coronavirus. EU institutions, like the European Central Bank and the European Commission, have acted much more promptly in response to cononavirus crisis of 2020, than they did to the Banking crisis of 2008 and the sovereign Debt crisis of 2010. This is in spite of the  huge handicap of having to meet by teleconference.

A proposal for a Coronavirus Response Investment Initiative has already been approved by the European Parliament and the Council and is in force as of the 1st of April. This will allow the use of EUR 37 billion under cohesion policy to address the consequences of the COVID-19 crisis.

It is not the EU institutions, but the Ministers of some of the member states of the euro, who have been unable to make decisions.  They are the ones who were unable to decide on Eurobonds, or an acceptable substitute.  It has been Ministers of the member states, not officials of EU institutions who have made undeliverable demands of, and used unacceptable language about, one another. It is competing nationalisms that have failed us so far.

Indeed this failure of competing national narratives was predictable. CO2 does not respect national boundaries and nor do deadly viruses. They transcend national boundaries, so the response to them must transcend national boundaries too.

The opposition to mutualisation of debt in countries like Germany and Netherlands is almost theological.  Eurobonds are a good idea but they are just another form of borrowing. The interest may be a bit lower but it is still a debt. Eurobonds cannot be set up quickly, and speed is important. The bond buying by the ECB, which is already under way, has been much more effective. It has eased the financial pressure on Italy and Spain, and bought time for the EU to come up with a more comprehensive recovery programme.

 The key here is the Recovery Fund, which was agreed in principle by the Finance Ministers of the Eurogroup last week. This Fund is to be aimed at providing funding, through the EU budget, to programmes designed to kick-start the economy in line with European priorities and ensuring EU solidarity with the most affected member states. 

Such a fund would be temporary, targeted, and commensurate with the extraordinary costs of the current crisis, and would help spread them over time through appropriate financing.  

The Summit on Thursday next will need to decide on the legal and practical aspects of such a fund, including its relation to the EU budget, its sources of financing, and on innovative financial instruments, consistent with EU Treaties. This is a huge task because the EU budget at the moment is only 1% of EU GDP, and is already committed to other things(notably agriculture). 

One solution might be for EU to borrow additional money, on its own account on a long term basis, and that a new, but temporary, EU tax to be agreed to in principle to provide a reserve from which these loans could eventually be repaid. An EU wide carbon tax to fund this is one possibility.  Of course this would be difficult to accept, but extra borrowing that is not backed by pre agreed repayment capacity is difficult to accept too!

Meanwhile we must all realize that a breakup on the Euro would also destroy the European Single Market. That will happen unless voters in all EU states think as Europeans, not just as nationals of their own state. 

 Without the euro there would be competitive devaluations of national currencies, and these could lead to retaliatory trade restrictions, which would destroy the Single Market.

 Oddly enough, it is the countries that are most resistant to mutualising debt who benefit most from being in the EU Single Market.

 The German based Bethelsmann Foundation has said 

countries like Germany, France, Belgium, Netherlands and Denmark benefit more strongly than regions in the southern and eastern periphery of Europe

 from the EU Single Market. 

President Macron is right to say that the political legitimacy of the EU is being challenged. 

Why is this?

 The reasons are psychological as well as political.

 The voters of EU countries rarely get a chance think as Europeans. They are never asked to vote on purely EU issues, and are not confronted with realistic choices about what the EU might do, and what it might cost them.

 European Parliament elections are really national popularity contests about national attitudes. So the EU becomes remote. The EU is “someone else paying”. It is “them” rather than “we”. 

That has to change if the EU is to have the necessary strategic and political depth to deal with crises like the one we are now going through. 

If the EU is to survive as a political project, it needs  to create a European democratic constituency that complements the democratic constituencies to which national leaders appeal. The EU needs a political heart to sustain its economic body.

A Conference on the Future of Europe is to be set up to look at that in the next few months. The EU Heads of Government should send a signal that they intend to take the need for genuine EU wide democracy seriously. 

Rather than rely solely on the European Parliament, whose members are all elected in national contests, we need an EU wide electoral contest, if we are to create an EU wide identity and EU wide democratic legitimacy.  

One way to do this would be to have the President of the European Commission elected by the voters of the EU. This could be done either by using the Single Transferable Vote, with which we are familiar in Ireland, or by a two round system like the one used in French Presidential Elections. Voters identify with personalities as well as policy programmes and it is personalities who can create the emotional bonds between European citizens, that are needed to make European financial bonds politically viable. Another (weaker) proposal would be to elect some MEPs from an EU wide constituency.

Next week will indeed be crucial for the European Union. It needs to get the economics right, but itals needs to get the politics and the psychology right too. Leo Varadkar will have a vital role to play.

WHERE CAN THE EU FIND THE AMMUNITION TO FIGHT A CORONA VIRUS INDUCED ECONOMIC SLUMP?

The Covid 19 outbreak, and its deep financial aftermath, will put the European Union under unprecedented stress over the next five years or more. Brexit will add to these tensions for some members, notably Ireland. It is a matter of vital national interest for Ireland, that the EU gets its response to the crisis right, and does not allow it to create dangerous social distancing between the states of the EU.

A crunch point will be reached next Tuesday when EU Finance Ministers must make vital short and long term decisions.

 The existing structure of the EU is unfitted to a crisis like this. The public expect the EU to act, but has not been given the EU the powers it needs to do so. 

Unlike the states of the EU, the EU itself has no capacity to borrow money, and no capacity to raise taxation. So it  often lacks the financial clout to take decisive action.

 The amount it is allowed to spend is a mere 1% of GDP, whereas EU member states can and do spend around 40% of their GDP.

Membership  of the EU has been enlarged to include populations who have radically different understandings of the obligations and responsibilities of EU membership.

 Some think EU membership is compatible with authoritarian systems of governance.

 Others think EU membership is about entitlements, without commensurate responsibilities.

 Yet others see the EU as a means of creating a sphere of influence and projecting national power. 

Some (like the UK) see the EU as just a trading arrangement, with few political obligations at all.

 Many see membership of the EU as a transaction, from which they should always gain more than they were giving up.

 The countries and regions that gain most from the EU Single Market, are either unaware of the gains, or mistakenly think it is all due to their own efforts.

 A recent study by the Berthelsmann Foundation showed that the big objectors to Eurobonds (Germany , Austria and the Netherlands) gain almost three times as much per capita from the EU Single Market as do the assumed beneficiaries of the Eurobonds, Spain and Italy!

 If the Single Market were to fail, the objectors would lose the most. But their national politicians fail to tell them this. Incidentally the study showed Ireland to be a big gainer from the Single Market.

Meanwhile the countries and regions that gain comparatively less from the Single Market resent this, and fail to acknowledge that they too are gaining from being in the EU Single Market, albeit a bit less than the others are gaining. Envy blinds some to reality.

Of course, these contradictory feelings are rarely expressed publicly, but they there under the surface, ready to emerge when a crisis happens and decisions have to be made quickly. 

Covid 19 has been such a crisis.

 The first reactions of some EU members were revealing, and deeply troubling.

On 4 March, France and Germany decided to block export of personal protecting equipment outside their own borders, even within the EU. This was done notwithstanding the fact that restrictions on export to other EU states are forbidden by Article 35 of the EU Treaty.

 Two days later, Italy requested an extraordinary meeting of EU health Ministers. This was declined, notwithstanding the fact that the health crisis was worse in Italy than elsewhere, and Italy (like Greece) had already borne the brunt of the refugee crisis, with little or no help from its EU partners.

 It took several days of pressure before the export bans were lifted, and 1 million German masks eventually did reach Italy. Meanwhile China scored a public relations coup by getting equipment to Italy, equipment that Italy’s EU partners had failed to supply. 

The Institute Montaigne, a French think tank said this episode will leave “deep scars” in Italy’s relationship with its EU partners north of the Alps.

The restrictions on economic activity, as well as the direct health and income support costs, arising from Covid 19 will dramatically increase the debts of all states in the EU. 

Assuming a 20% drop in GDP as a result of Covid 19, an economist in the Bruegel Institute in Brussels  has estimated that the Debt / GDP ratio of Italy could rise from 136% of GDP to 189%, that of France from 99% to 147%, that of Spain from 97% to  139%, and that of Germany from 59% to 94%. 

 As all these countries can expect their workforces reduce in the next 20 years, because of past low birth rates, this is a very troubling prospect. A way needs to be found to spread the  debt as widely as possible and as far as possible into the future.

One of the proposals made to do this is Eurobonds which would enable counties to borrow with a guarantee from all eurozone states. The interest rate might be lower but it is still just another form of borrowing. If Italy issued a Eurobond, it would still be increasing its overall debt, and might face a higher interest rate on its ordinary bond issues. Another objection is that it might take 18 months or more to get these Eurobonds up and running, and the markets need something quicker.

Another proposal is that distressed countries borrow from the European Stability Mechanism (ESM). Some believe that the ESM is too small for all that needs to be done. Others worry about the conditions that might be imposed.

Meanwhile the ECB continues to buy the bonds of member states. For example it owns 26% of all German government bonds and 22% of all Spain’s bonds. This bond buying by the ECB enables governments to continue borrowing, but its support is confined to members who are in the euro. It is using monetary policy to achieve the goals of fiscal policy, which is controversial.

I suggest a better solution would  be to allow the European Union itself to borrow, up to a limit of (say) 0.5% of the EU GDP, to spend exclusively on Covid 19 related expenditures. 

Article 122 of the Treaty already makes provision for the EU to give aid  to help states suffering from “natural disasters and exceptional occurrences” beyond the control of a member state or states. Covid 19 meets this criterion.

 But the EU is not using this power, because its budget is fully committed to other things. It has no room to respond to sudden emergencies.  It would have such room if it was allowed to borrow. This power could then be activated to allow direct transfers of funds to a state in acute distress because of Covid 19 or the like, without adding to the recipient state’s debt.

Doing this would require an amendment to Article 310 (1) of the Treaty. This article presently requires the EU always to run a balanced budget. This could be amended to allow borrowing  that was confined to spending on matters, like Covid 19, that had arisen suddenly and were beyond the control of the state looking for help. Such a limited borrowing authority would command a lot of support from the electorate.

It would also be borrowing under the democratic control by the Council of Ministers and  European Parliament, something that does not apply to bond buying by the ECB.

The EU faces is an unprecedented situation which justifies unprecedented actions.

DO TORY LEADERSHIP CONTENDERS UNDERSTAND WHY THERE IS AN IRISH BACKSTOP?

The Backstop is not just about the border. It is not a technical matter. It is not just about what happens at 200 crossing points.

It is about the people of Northern Ireland, and giving all of them (not just a majority) the freedom to be who they are, and a sense of belonging.

But the present debate in the UK Conservative Party about replacing the backstop, seems to assume that it is all about technical fixes and invisible border posts , and that some yet to be discovered combination of IT and lasers would remove the need for physical customs posts, and that would then solve the entire problem. That is a mistake.

The backstop is about far more than this.  It is a recognition of the fact that, in Northern Ireland there is a population some of whom feet they have exclusively British identity and allegiance, some of whom feel they have an exclusively Irish identity and allegiance, and some of whom combine these allegiances comfortably enough.

The backstop is a recognition of this fundamental divide, which has led to so much suffering in the past, and an attempt to sustain the arrangements that ended that suffering.

The Belfast Agreement of 1998 transcended these divisions through provisions for intense North/ South and East/West cooperation, that would allow all three groups, described above, to feel fully at home in Northern Ireland under any present, or future , constitutional arrangements.

This was easy to envisage as long as both parts of Ireland remained in the EU, because EU rules facilitated and underpinned free and easy cooperation both North/South and East/West.

In such a context, territorial “sovereignty” became less of an issue, because it was overlaid by structures of free cooperation enshrined in EU law.

Brexit changes all that in a radical way. It brings territorial sovereignty back into the centre of stage in a way that threatens the Belfast Agreement settlement in a deeply fundamental way. I believe that Theresa May came to understand this, and that that explains her acceptance of the backstop.

Most of those contending to take her place in the Conservative Party leadership do not seem to do so.

In the agreement of March 2019, the EU side has given the UK very strong assurance of its good faith in seeking to find an alternative to the backstop.

But that will only work if the UK side really understand why the backstop was put there in the first place.

I do not believe that the contenders for Conservative Party leadership have taken this on board.

GIVING THE PEOPLE A DIRECT SAY IN WHO IS PRESIDENT OF THE EUROPEAN COMMISSION

Who will be the next President of the European Commission?

This is a decision that could set the European Council of heads of government on a collision course with the recently elected European Parliament and set France on a collision course with Germany. The present system is flawed in that it only gives voters an indirect, rather than a direct, say in who is Commission President, and is not truly representative in that it rewards only the biggest party.

Article 17 of the European Union Treaty says

“Taking account of the elections to the European Parliament, and after having held the appropriate consultations, the European Council shall propose to the Parliament a candidate for President of the Commission”.

It goes on to say that the nominee must then obtain a majority in the European Parliament, and if he or she does not, the European Council must then, within a month, propose a new name.

In 2014, and again in the recent European Parliament elections, the Parliament decided to go further.

It endorsed a process whereby the major parties would nominate a “lead candidate”, who would then be supported as President of the Commission.

In a sense this preempted to role of the European Council in picking the nominee.

In 2014 Jean Claude Juncker was the nominee of the EPP and, when the EPP emerged as the biggest single party (219 out of 751), he was nominated. Only Hungary and the UK opposed him in the European Council. He was then elected by a majority vote in the Parliament.

This “lead candidate” system was devised, so as to allow each voter to have a say, through their choice of party in the European Election, in who would be President of the Commission. It was a form of indirect democracy.

For the 2019 election the same process was followed.

The EPP proposed Manfred Weber as their nominee for President of the Commission.

The Social Democrats nominated Frans Timmermans .

The Greens nominated Ska Keller.

The Liberals, who do not like the lead candidate process, group put forward a “team” of candidates including Guy Verhofstadt and Margarete Verstager.

Weber won last week, in the sense that his group has most MEPs (180). So he has a good case to be the nominee. But 180 is even further from an overall majority of the 751 member Parliament  than Jean Claude Juncker was with 219 MEPs in 2014.

A system which says the party with the most MEPs shall have its nominee as President of the Commission  has the deficiencies of the British straight vote, it is a “winner take all” electoral system.

Second preferences do not count.  All one needs to be is the biggest party, to claim the job.  Like the British electoral system that is polarizing by its nature.

Some argue that the lead candidate system also upsets the balance of power between the Parliament and European Council, in that it purports to tie the hands of the European Council on who it may nominate, and also it politicizes the Commission unduly.

Under the Treaty, the Council must “take account” of the results of the results of the European Election in choosing its nominee, but the lead candidate system in not in the Treaty. It does not oblige the Council  to pick the nominee of the biggest party.

On the other hand, credibility will be at stake if the Council now rejects Manfred Weber.

The Council cannot simply ignore the fact that the election was fought on the basis of the lead candidate system, and many voters were genuinely led to believe that, in voting for a particular party, they were also voting for that party’s nominee for President of the Commission.  

Presidential debates took place between the lead candidates, on the assumption that one of them would become President of the Commission.

To replace that open, if flawed, system with a  backroom deal to put forward someone whose name was not before the electorate  at all would be a hard sell, no matter how well qualified the new nominee might be.

And that alternative nominee would still have to win a majority in Parliament, to be elected. The outgoing European Parliament, in a formal resolution, said the Parliament would be “ready to reject” a nominee who had not been a lead candidate.

So the European Council would be taking a big risk if, at this stage, it decides to reject the lead candidate system.

There is a wider argument.

Despite the improved voter turnout, many EU citizens still feel EU decision-making is remote.  

The European Council would need to come up with something much better if it decides to go against the lead candidate method of selecting the Commission President.

In 2001, the EU heads of government asked the Convention on the Future of Europe (of which I was a member), to look at new ways to create a “Europe-wide democratic public opinion” when it drew up a new EU Treaty.

The heads of government specifically asked the Convention to consider the direct election of Europe’s Commission President, not by the Parliament,  but by the voters of Europe themselves.

They also asked  the Convention to consider whether some MEPs should be elected in Europe-wide, rather than in national, constituencies.  This would have given voters an opportunity to vote on European policies, rather than just on the national ones, that tend to predominate in European elections at present.

I regret to say neither of these proposals got serious consideration by the Convention.

I argued strongly there for the direct election by the people of the President of the Commission, on the same day, but on a different ballot paper, to MEPs.  Separating the two votes would preserve the vital separation of powers between Parliament, Commission ,and the Council

The proposal failed to get support because many members of the Convention felt that a  President of the Commission, directly elected by the people, would be politically too powerful, even if his or her legal prerogatives were no more than those of the existing Commission President.

The other idea,  that of electing some of the MEPs on a Europe wide list did not get support either, chiefly because some of the existing MEP seats  would have had to be given over to the Europe wide list, and some existing MEPs might have lost out.

The looming impasse over the Commission Presidency shows we need to devise a better system.

I believe the best solution would be to have the President of the Commission directly elected by the people of the EU, under a proportional representation system with a single transferable vote (PR.STV). It is a simple system, once you get the hang of it.

It is used in by elections in Ireland. It was considered as the replacement for the present UK system, in a referendum in the UK during the Tory/ Lib Dem coalition, but unfortunately rejected. If it had been accepted Brexit might never have happened.

Under PR.STV, people’s second and third preferences are taken into account, if their first choice does not win. The importance of second preferences encourages candidates to appeal to as broad an electorate as possible. This reduces the sort of destructive polarization we now see in UK and US politics.

But the system involves several counts after the elimination of lower candidates. To introduce PR.STV for EU Presidential Elections would need the introduction of a standardized  electronic system for the casting and counting of votes all over the EU, which would require a substantial investment.

But I believe it would be the best, and fairest, way forward for European democracy.

WHY THE EU HAS DIFFICULTIES WITH THE CHEQUERS PROPOSALS

The Chequers proposals of the UK Government were a genuine, if belated, attempt to reconcile the expectations of the British people with EU realities.

But they ran into difficulty for the following reasons. If Chequers remained an opening negotiating position, it might have started a useful conversation.

  1. But , under the pressure of domestic UK politics,  Prime Minister May soon made it a “red line” position, and thus no longer negotiable.
  2. From an EU perspective, Chequers was problematic because it would have meant the EU giving up control of its trade borders, and subcontracting that to a non member, the UK. It would have provided for a common rule book for the quality of goods circulating, via the UK, into the EU Single Market, but the UK Parliament would still have retained the option of not passing some of the relevant legislation to give effect to this rulebook. Furthermore, it would not have been bound to accept the ECJ’s interpretation of what the common rules meant.
  3. It would have meant the UK opting into some bits of the EU Single Market, but not all, and that precedent would have created immediate demands for exceptions from other EU members and also from Switzerland and Norway.

It does not require much political imagination to see that these aspects of the UK proposal were going to be a hard sell in the parliaments of some of the 27 countries. And if just one of them said NO to an eventual EU/UK trade deal, there would be no deal. Each has a veto.

GOVE THEN UNDERMINED THE CHEQUERS LINE

To make matters worse, a collectively responsible member of the UK Cabinet, Michael Gove  suggested that the UK might agree a Withdrawal Treaty on the basis of the Chequers approach, but later, once out to the EU, abandon it, and do whatever it liked. This would put Mrs May in a position of negotiating with the EU in bad faith. It also raised doubts that, even if the EU side accepted Chequers, the UK government could not carry it through.

DOUBTS  RAISED ABOUT THE IRISH BORDER COMITTMENTS

Gove’s intervention also cast doubt the genuineness of commitments the UK had given on the Irish border.

In a Joint Report of 8 December 2017, the UK agreed to respect Ireland’s place in the EU and all that entailed, and that there would be no hard border in Ireland. This was to apply

“in all circumstances, irrespective of any future agreement between the EU and the UK”.

When the UK declined to translate this commitment into legal language for the Withdrawal Treaty, the EU side began to wonder if the UK wanted to delay dealing with Irish border problem until the last minute, hoping to table a proposal on a “take it or leave it” basis, and that the EU would not then jeopardize the whole deal over a place as small as Ireland!

Unsurprisingly, this shifting UK approach was not accepted by the UK’s EU partners, when they met in Salzburg.

The UK should not have felt “humiliated” by this. The EU is a complex institution, with 27 different countries.

ANY DEAL WILL HAVE TO APPROVED BY 27 PARLIAMENTS

As I said the parliaments of all 27 of them will have to ratify any eventual trade deal the UK. Let us not forget that EU found it hard to ratify its trade deals with Canada and Ukraine, because of objections in Wallonia and Netherlands respectively.

But before starting to negotiate a trade deal, the UK must first agree the terms of its withdrawal from the EU.

The Irish border question is central to this.

THE HARDER THE BREXIT, THE HARDER THE BORDER

The harder the UK Brexit, the harder will be the resolution of Irish border problem.

The further the UK negotiating demand goes from continued membership of the EU, the harder it will be for it to fulfill the commitments it has given on the Irish border.

If the UK decided to leave the EU, but to stay in the Customs Union, the Irish border questions would have been minimized.  But the UK has decided to reject that, because it hopes to be able to make better trade deals with non EU countries than the one it already enjoys as an EU member.

The UK has also rejected joining the European Economic Area (the Norway option), which would also have minimized the Irish border problems, because it would mean continued free movement of people from the EU into the UK .

In each decision, Ireland was given a lower priority than the supposed benefits of hoped for trade agreement with faraway places, and of curbing EU immigration.  This was short sighted.

Future trade agreements that might be made with countries outside the EU are neither as immediate, nor as beneficial to the UK, as maintaining peace and good relations in the island of Ireland, or as  the 70 or more trade agreement the UK already enjoys as an EU member, which it will lose when it leaves.

EU immigration to the UK, if it ever was a problem, is a purely temporary and finite one.

Already the economies of central European EU countries are picking up, and, as time goes by, there will be fewer and fewer people from those countries wanting to emigrate to the UK to find work.  These countries have low birth rates and ageing populations, so there is a diminishing pool of potential emigrants.

Again, I believe that solving this, largely imaginary, EU immigration “problem” is less important to the UK, in the long run, than peace and good relations in and with Ireland .

If, as is now suggested, the UK moves away from Chequers, and looks instead for a Canada style deal with the EU, the Irish border problem will become even worse. Mrs May has recognized this and this is why she rejects a Canada style deal..

A Canada style deal would mean the collection of heavy tariffs on food products, either on the Irish Sea, or on the Irish border. Collecting them on the 200 mile long land border would be physically impracticable, so the only option would be to do it on the Irish Sea.

Either way, the all Ireland economy, to which the UK committed itself in the Joint Report, would be irrevocably damaged. The economic foundation of the Belfast Agreement would be destroyed.

CONSERVING WHAT WE HAVE SHOULD BE THE GOAL OF A CONSERVATIVE PARTY

It is time for the Conservative Party to live up to its name, to be truly conservative, and conserve the peace we have so successfully built on the twin foundations of the Belfast Agreement and the EU Treaties, to which the UK committed itself in 1998 in the case of the Belfast Agreement,  and in 1973 in the case of the EU Treaties.

IMMIGRATION FROM AFRICA IS INEVITABLE….

EUROPE’S CHOICE IS WHETHER THIS IS TO BE PLANNED AND LEGAL, OR ILLEGAL AND DISORDERLY.

It is not immigration, but the political exploitation of immigration, that threatens border free movement within the EU.

Closing down legal migration routes has led to the opening up of illegal routes.

In 2010, 130,000 first time visas were issued to citizens of African countries by EU countries. By 2016, only a mere 30,000 visas were issued.

So denial of a legal immigration route is one contributor to illegal immigration.

African agriculture suffers disproportionately from climate change, but the human contribution to climate change comes disproportionately from the Northern Hemisphere, including from Europe.

Public opinion in some European countries is getting into a panic about immigration from outside Europe, yet these very countries are often the ones that have the least immigration.

A survey of public opinion, in 2016, found that the most negative opinions about immigration were to be found in Hungary, Slovakia, Latvia, Estonia and Romania (all countries with little enough non EU immigration).

The most welcoming attitude to immigration, at that time, was to be found in Sweden, Germany and the Netherlands (who all already have substantial numbers of non EU immigrants).

European countries have a legal obligation to provide a refuge for people who are fleeing in fear of their lives from wars. Europe has provided some shelter for refugees, but Turkey has 3 million refugees in its borders, Lebanon 1 million, and Uganda 1 million. No EU country is shouldering that sort of burden.

Europeans need to look at immigration in a different way.

Because we have decided, over the past  40 or more years, to have fewer children, Europeans will need immigration in future to maintain a proper balance between numbers at work, and numbers in retirement, unless those in retirement are to live a desolate old age thirty years from now.

In a few years time, people of working age will be in short supply.

Globally, the ratio of working age to retired, will fall from 8 to 1 today, to 4 to 1 by 2050. By 2050, the global population aged 65 or over will increase from 600 million to 2.1 billion.

This will create a huge funding crisis for governments, who will not be collecting enough tax from the diminished number of people of working and taxpaying age, to meet the promises it has made, of pensions and health care, to the increasing number who have already retired and no longer earners and taxpayers.

Opposition is principle to the arrival of young immigrants from Africa is short sighted.

This is because the working age population of most EU countries is set to decline, while its post retirement population is set to increase rapidly. Without immigration of people of working age, Europe’s diminished working age population, will imply relatively poorer health care and pensions for its ever growing retired population.

Africa has an abundant supply of what will soon be one of the world’s scarcest resources, young people.

Europe has a birth rate of 1.63 children per family. Iran and China have similarly low birth rates and the US rate is only slightly higher.

In contrast, the birth rate in Nigeria is 5.42, in Mali 5.92 and Niger 7.15.

Nigeria’s population has risen from 45 million, when it became independent in 1960, to 187 million today. By 2050 Nigeria’s population could reach 410 million. The present Nigerian economy is just not capable of finding employment for all these people.

The EU needs to work on a policy that encourages orderly and well prepared immigration from Africa, accompanied by well considered plans to integrate the immigrants into European society.

As much as possible of the preparation for European living should be done before would be emigrants leave their home countries. If Europe opens up legal routes for immigration, illegal routes will become less attractive.

Europe must develop an investment partnership with Africa.

As the European Council said last week;

“  We need to take the extent and the equality of our cooperation with Africa to a new level. This will not only require increased development funding but also steps towards creating a new framework enabling a substantial increase of private investment from both Africans and Europeans. Particular focus should be laid on education, health, infrastructure, innovation, good governance and women’s empowerment.”

 

Bruton calls for Brexit negotiating extension

John Bruton, Speaking to RTÉ’s Morning Ireland today.

Former taoiseach John Bruton has called for the two-year Brexit negotiating period to be extended.

Mr Bruton, who is also a former EU Ambassador to the United States, said the time limit is too short and any agreement reached will have to be ratified by the UK and EU parliaments, which also takes a lot of time.

Speaking to RTÉ’s Morning Ireland, Mr Bruton said that pressure for negotiations is too great and that mistakes are inevitably made, when insufficient time is given to negotiations.

Mr Bruton added that the time pressure is adding to a “fevered atmosphere” in British politics, with just over a year left before the negotiating period ends in March 2019.

He warned that Ireland would suffer as much as the UK, if the right deal was not reached.

Mr Bruton said there is a provision for the extension of the two-year negotiating period in Article 50.

He said that there are some downsides to the idea of extending the period and it would have to be reached unanimously.

However, he said the possibility of extending the period would allow for more rational discussion and a better outcome.

 

 

TWO YEAR PERIOD FOR NEGOTIATING BREXIT CAN, AND SHOULD, BE EXTENDED

I am delighted to be invited to speak at this important launch.  I congratulate Skoda on the recent rapid growth in sales in the Irish market.

I would like to talk this morning about Brexit.

I believe that Brexit will do disproportionate damage to the motor industry, which is one of Europe’s premier industries. It depends for its efficiency on complex supply chains, and these will be disrupted if the UK Government persists with its intention to leave the EU Customs Union and Single Market.

The risk of the UK simply crashing out of the EU remains high. The fact that Mrs May has had to postpone her planned speech on Brexit, points in that direction.  So does her slap down of Philip Hammond for saying that the changes in the EU/UK trade relationship would be “modest”. That slap down is hardly consistent with her promises in regard to the Irish border, which still have to be converted into Treaty language.

The gap between popular expectations and practical possibilities remains dangerously wide.

The two year time limit to conclude the negotiation of the terms for UK withdrawal from the EU is, as we are slowly learning, far too short.

The implications of UK withdrawal have not, even yet, been fully discovered by the negotiators on either side. New complications and hypotheses are emerging every day. These arise because we are only now digging down into 40 years worth of trade deals, memberships, and understandings, which the UK can only be part of, so long as it is in the EU.

It would be in the interest of Ireland if the UK were to decides either not to leave the EU at all, or, failing that, decides to rejoin the EU, on terms acceptable to Ireland.

How might this happen? This is the question I am attempting to answer in a paper to be published today by the Institute of International and European Affairs.

The UK hopes to leave the EU on 29 March 2019 but to continue to have access to the EU market for a two year Transition Period, ending on 29 March 2021.This date was presumably chosen because it is before the scheduled date of the UK General Election.

I believe this Transition Period approach is a mistake. I believe it would be simpler and wiser for the UK and the EU to agree to extend the period for negotiation under Article 50 by two or more additional years. This can be done by unanimous agreement.

DISADVANTAGES OF THE PRESENT” TRANSITION PERIOD” APPROACH

At the moment, the UK is seeking a two year transition period, after March 2019, during which, having left the EU as a member,  it would still enjoy the benefits of membership of the EU Single Market, and Customs Union. Some in the European Parliament have said the longest Transition the UK might be granted is 3 years.

If this is conceded, the U K, for the duration of the Transition, would not then have any say in the making, and in the interpretation of the rules of the Single Market and Customs Union, with which it would have to comply. It would still be subject to ECJ jurisdiction, and would still be contributing to the EU budget, on the same basis as if it was a member.

The UK Prime Minister calls this proposed transition period an” implementation” period.

Businesses in the UK and in the EU, and particularly Irish businesses trading with the UK, would presumably be expected to be implementing changes in their business practice to accommodate themselves to the sort of arrangements that would apply, in March 2021, when the UK had actually left both the Single Market and Customs Union, as Mrs May desires.

The difficulty will be that no one would know for sure what to prepare for.

The Transition would be more of a Postponement than a Transition!

This is because the  EU and the UK could only start substantive negotiations of the terms of a future UK/EU trade deal at the beginning of transition period, because the UK must first become a non member of the EU, before it can negotiate a trade deal with the EU.

On the other hand, as a non member and during the Transition Period, the UK would also have to negotiate replacements for the hundreds of  Trade and other Agreements it has with third countries as an EU member, which would cease once the UK had left the EU, on 29 March 2019.

Negotiating the terms of a Transition Period may prove to be very difficult, almost as difficult as negotiating a final agreement. Perhaps more, because there is no precedent to follow.

Of course, the political outlines of a  possible trade arrangement with the UK might have with the EU would be referred to in the “Framework for a future relationship” that, under Article 50, should accompany the Withdrawal Treaty.

The Withdrawal Treaty itself, and presumably the Framework, can be agreed by a qualified majority in the European Council.

But a future trade deal with the UK would face more difficulty. Depending on its content, and whenever it is eventually finalised, it  will  almost certainly require the  unanimous agreement.

If it covered services, many of which are regulated at national as well as EU level and which the UK wants included, it would have to get ratification from all the national parliaments.

So any outline of the trade deal, promised in the Framework accompanying the Withdrawal Treaty, might not survive the substantive negotiation that would take place after the UK had already left the EU

The Framework to be full of good intentions, but not full of the sort of bankable legal commitments that businesses will need to make investment decisions.

So two years may be too short a Transition period for business.

It will also be too short for trade negotiators, who say that a deal as complex, as the one the UK is seeking, would probably take 6 years to finalise, not just 2.

But, politically, a two year Transition, may be as long as the UK can live with, because its government is in such a political rush to leave.

By the time of the next election, the Conservative Party will not be comfortable ,if the UK is still in “transition”, implementing EU laws, contributing to the EU budget, and under the jurisdiction of the ECJ.  So it may be willing to pay a high price to finalise a Framework deal and end the Transition within the two years.

On the other hand, the likelihood is that, in those negotiating circumstances, the deal will be a “bad one” for the UK. But rejecting that “bad” deal will  not be attractive either because without a deal, the UK will be out of the EU, and will only be able to trade with the EU on “WTO terms”, which would be really bad for the UK, and appalling for Ireland.

All of this will be happening on the eve of the UK’s 2022 General Election.

In these circumstance the UK government might be tempted to look for an extension of the two years  Transiion and leave it to a post General election government to take the blame for an unsatisfactory Trade Agreement.

I believe one such time limited prolongation of the Transition Period, if requested by the UK, would be granted by the EU 27. But that would be it.

An indefinite prolongation, or a series of prolongations, would not be offered.

There is so much uncertainty surrounding the content and timeline of a UK/EU Trade deal that the Transition Period will not provide a reliable basis for planning by business.

All the same, the longer is the Transition, the better it will be for Irish business.

But a long Transition will be exceptionally difficult to sell in the UK.

It would offend against the principle of democratic representation. The UK would have to implement and abide by EU regulations, in the making of which it would have had no part. It would have no representation in the European Parliament,  Council or Commission. Any financial contribution it might make during the Transition would be represented by some as “taxation without representation”.

So, I conclude that, as the UK explores the difficulties of its proposed Transition or Implementation Period, it may find itself forced to look at other options.

The only other option on offer is an extension of time under Article 50 (3)

EXTENDING THE TWO YEARS AS PROVIDED FOR IN ARTICLE 50

Article 50 (3) of the Treaties, under which UK withdrawal is being negotiated, says a country that has applied to withdraw from the EU and given notice of intention to do so under Article 50 (2) shall cease automatically to be a  member

“ two years after the notification referred to in paragraph (2), unless the European Council, in agreement with the member states concerned, unanimously decides to extend that period”.

Extending the two year period is a matter for the member states. There is no provision requiring the consent of the European Parliament to such an extension of the two years.

At the moment, there is no official sign that either the UK, or the EU 27, would contemplate using such an extension, or even talking about it.

It is too early. To do so would signal weakness, and would be a poor negotiating tactic.

But the provision for an extension of the two years was put there for a practical reason.

Even with the best will in the world, trade negotiations can take longer that all sides want.

There can be unexpected technical and legal difficulties.

General Elections and government formation delay can prevent decisions from being taken. Look at the example of Germany at the moment.

Rigid time limits can also be exploited by forces that have another agenda, and simply want to maximise chaos.

Politicians can even change their minds, but need more time, than is provided with in the two year limit, to adjust the expectations of their supporters.

Time limits create a fevered atmosphere in which rational calculation becomes more difficult.

Time will have to allowed, at the end of the  two year period, for ratification of the Withdrawal Agreement, and of the Framework for Future Relations by both the British and European Parliaments, and both may look for time for debate and deliberation on the merits of rejecting, or accepting, the proposed Treaty

. Neither Parliament may wish to be confronted with a proposition, which says “take it or leave it, and do so now”.

Allowing time for Parliamentary ratification , on its own, might necessitate an extension of the two years.

An extension of the two year period, under Article 50 (3) would be different, in its effect ,from an extension of the Transition period.

Under Article 50 (3), the UK would continue, for the duration of the extension, to be a full voting member of the EU, except on issues to do with Brexit.

It would still be a member of the ECJ and a British Judge would continue to sit there.

The UK member of the Commission would continue his important work in that capacity.

The UK MEPs would continue to sit in the European Parliament, although from 2019 there would be different MEPs from some of the constituencies.

The UK would continue to be bound by EU law, but that will also be case during a Transition. But in the Article 50(3) scenario, the UK would enjoy democratic representation.

In these senses, an extension under Article 50 (3) would be a better deal for the UK than a Transition Period.

But the Referendum decision to leave the EU would not yet have been implemented. It would still be under negotiation.

An extension of time under Article 50(3) offers a greater degree of certainty to business. The UK would definitely retain all the obligations and advantages of membership for the duration of the extension.

Article 50 (3) offers no guidance on, and does not limit, the period of an extension that could be granted. Nor does it place a limit on the number of extensions that might be granted.

Given that every EU state, and the UK itself, would have to agree, the likelihood is that the initial period of any extension could be quite short.

But if, during that extension, negotiations were going forward in a good and constructive spirit, further extensions could become possible

Under the Article 50 (3) approach, the UK would still be a member of the EU.

Thus, while it could agree a framework for its future relationship with the EU and this could cover trade matters, the UK could not negotiate and finalise a trade deal with the EU or anybody else.

That would be a big negative from the point of view of those in Britain who believe there are attractive trade deals waiting to be concluded.

But, on the other hand, the UK would continue to benefit from existing EU trade agreements, and the extra time would allow it to put much greater flesh  and detail into the Framework for Future Relations with the EU, than will be possible in the time between now and March 2019.

I believe the two year time limits has created a fevered atmosphere in the negotiations. It  has politicised them in a way that makes rational calculation of mutual interest more difficult.

An early agreement to a substantial extension under Article 50 (3) would remove this problem, and would give the negotiators more time and space.

I have the sense that some in the UK are open to this possibility, but there is little appetite for it in Brussels.

If the EU side were unilaterally to offer an extension of the time period, under Article 50 (3), that went beyond the time of the UK General Election, it would thereby place a heavier responsibility for a bad negotiating outcome on the current UK government.

The UK government might want to reject such an offer, but it might not be able to persuade the UK Parliament to agree.

This would not be easily done.

There is a feeling in some continental EU countries that the UK has already taken up too much of the EU’s time. For example, the David Cameron’s decision to prevent the Compact for the Fiscal governance of the Eurozone being incorporated in the EU Treaties, even though they had nothing to do with the UK, has left a very sour taste.

There is a fear that any extension of UK membership under Article 50 (3) could be exploited by the UK to block other EU reforms, and/or to improve the UK’s position in the competition between the EU and the UK post Brexit.

Granting the UK, which had decided to leave and chose the timing of its Article 50 letter freely, an extension of the time limit, would be seen by many as encouraging other sceptical EU states to use the threat of withdrawal as a bargaining tactic, or a means of getting votes in Elections.

In this context, taking a tough line with the UK is not seen as “punishment” of the UK, as much as being “self preservation” by the EU.

An extension of time under Article 50 (3) would mean that UK MEP’s would still be eligible to sit in the next European Parliament, at least until the extension period had expired and the UK was out.

A European Parliament Election in 2019 in the UK would allow the British people to debate the issue of UK withdrawal from the EU in a much more informed manner than was possible in the Referendum of 2016. The campaign, and the result, of the European Parliament in the UK in 2019 would give valuable guidance to negotiators.

It might confirm the decision to leave, or it might signal a willingness to change course.

Either way, under the Article 50(3) time extension scenario, this would happen before the UK had actually left the EU. So the outcome of a European Parliament Election, in the UK in 2019, would be politically meaningful.

If the result was decisive vote in favour of Remain candidates, the UK might have the option of withdrawing its Article 50 letter and staying on in the EU, under existing terms.

An extension of time under Article 50 (3) would facilitate a second Referendum, if that is what the British people want.

The choice would be much clearer than it was in 2016, because Britain would still be in the EU at the time of the Referendum. So staying in the EU in existing terms would be the clear alternative to accepting the Withdrawal Treaty and accompanying Framework document that would be presented in the Referendum.

Reapplying to join under Article 49, which would be the only option if the change of heart took place after the UK had already left the EU would be much more difficult. It would mean a whole new negotiation and different, and less favourable terms of membership, for the UK.

On the negative side, UK MEPs continuing in the European Parliament after the 2019 Election could play the role of spoilers. They could ally themselves with nationalistic and anti system MEPs from other countries, who simply do not want the EU to succeed.

A disadvantage of a time extension under Article 50 (3) is that it would interfere with the plans of a number of European leaders, including the Taoiseach and President Macron, to allocate some of the seats to be vacated by UK MEPs, to MEPs who would be elected from a constituency of the entire European Union. In the European Parliament itself, work is already being done on the allocation of the vacated UK seats, and some existing member states could get more seats. Beneficiaries might be inclined to resist an extension of time under Article 50 (3), but the European Parliament’s consent is not required. But keeping the UK in the EU is more important.

CONCLUSION

If an individual wants to withdraw from a contract, he can do so, but he would normally expect to have to compensate other parties to the contract for the damage his decision might cause. No consideration at all was given, during the referendum in 2016, to the impact, UK withdrawal would have on other contracting parties, notably on Ireland.

For all these reasons, I believe the UK, and the EU 27, need to take time out to think about where we are going with Brexit. Two years is not enough.

The confrontational atmosphere, engendered by the artificial time limits in Article 50, prevents a quiet discernment of mutual interests. It imposes a dangerous straight jacket.

As I have shown there are advantages but also profound difficulties, with all the options I have considered.

But, on balance, I believe the best way to reach a sensible outcome in the negotiation, that will do least damage to the political and economic relations between the UK and the rest of Europe, would be to forget about the Transition option, and agree a time extension under Article 50 (3).

That may not seem politically feasible at this stage, but I believe it will be seen in a different light by next October.

As I said earlier, if the EU side were to offer such an extension, at a moment when the full difficulty of the Transition option was becoming clear, it would change the dynamic in British politics.

If it rejected the time extension option in favour of the Transition option, the UK government itself would have to take the full responsibility

  • for entering what some Brexiteers have described as “Vassal status”,
  • for implementing rules they had  no say in making, and
  • for entering a period in which the UK would paying into EU funds, with no say in how the money was spent.

The rush for an early Brexit, that motivated Mrs May to write her Article 50 letter before her government had done its homework, was driven by a deep fear among the architects of Brexit that, if they did not leave quickly, they, or their voters, might change their mind about leaving at all.

This is, quite literally, an irrational basis for deciding the future of Britain.

It is a deeply dangerous basis on which Britain would impose the costs of its mistakes on Ireland.

It will leave deep and lasting scars.

I believe that an extension of time under Article 50 (3) of the Treaty is the best way to minimise, and possibly to eliminate, the damage.

====================================================

Speech by John Bruton, former Taoiseach and former EU Ambassador to the United States, speaking at the Skoda  Fleet Business event at 8 am on Monday 29th January in Bellinter House Hotel, Navan Co Meath;

 

The EU vote ignored Ireland, but the UK can still change its mind

Let me first try to explain why the handling of Brexit by the UK led to a crisis in Anglo-Irish relations. Treaties between nations are like contracts between individuals. They influence how each party behaves, towards one another and towards the rest of the world. While a contract or a treaty can be withdrawn from, there is a legitimate expectation that this will only be done with careful advance consideration of how this will affect the other parties to the treaty or contract. This is not just a legal expectation, but an expectation of the sort of civility that should apply in relations between people and nations.

One also takes for granted that, if the withdrawing party to a contract wants a new or different contract with the same parties, it will say in advance what it wants that new relationship to be. Even now, Ireland has no clear idea what sort of relationship, compatible with the EU rules the UK helped make, the UK wants with the EU, and hence with Ireland. As the country most affected by Brexit, there is thus deep disappointment in Ireland that our neighbour the UK has not been able, in respect of Brexit, to live up to the normal expectations I have just outlined.

Forty-four years ago, Ireland and the UK signed the same contract with one another, and with the seven other countries that then made up the European Common Market. We each renewed that contract several times, in the UK’s case with the sovereign approval of its parliament. We each expected that the others would continue to honour the contract and we shaped our institutions and our economies on that basis. In particular, when Ireland and the United Kingdom negotiated the Belfast and St Andrews Agreements, to resolve the ongoing conflicts in and around Northern Ireland, we each did so on the unquestioned assumption that the UK would continue to be an EU member.

We each assumed that the freedoms created by membership of the EU could continue to be used to strengthen relations between the two communities in Northern Ireland, between North and South, and between Ireland and Britain.

The renegotiation and referendum process that was initiated by David Cameron, which has led to Brexit, seemed to us in Ireland to have been designed in a way that took no account of the obligations and expectations the UK had created in Belfast and at St Andrews.

During the renegotiation phase, the Irish taoiseach, Enda Kenny, supported Cameron’s attempt to improve the special status the UK already had in the EU, even though some of the concessions the UK were given weren’t in Ireland’s interest.

Irish people saw other problems with the process that led to Brexit. The complex UK/EU relationship was reduced to a simple “Leave” or “Remain” choice. While it was clear what “Remain” meant, no effort at all was made by the government sponsoring the referendum to say what sort of “Leave” it would choose. So “Leave” became a vehicle for fantasies and wishful thinking of the most egregious kind. Explanations of the choices between different forms of Brexit – such as on whether to stay in the customs union and the single market – were left over until the people had already voted.

There was no deliberative process to inform public opinion, something one would have expected of the UK parliament, one of the oldest democratic deliberative bodies in the world. The referendum was not preceded by detailed green and white papers. In the absence of authoritative information, there was no informed debate about the impact of Brexit on the Irish border, and on hundreds of issues.

It is only in the past week that the UK government has started to consider the sort of post-Brexit relationship it will ask for. In doing so, it will have to take account of the fact that the EU works because it is a single legal order, with a single system that makes, implements and adjudicates on the meaning of shared EU rules. The UK has a sovereign right to decide what it would like, but it cannot expect the EU to change its very nature, just to accommodate a country that is leaving.

In preparing its proposal, the UK will need to take into account the Interlaken principles that govern EU relations with third countries, and the EU community customs code, both of which UK ministers helped to draft. When it has done this, the UK government can then compare the special position it already enjoys as a voting EU member, with what the EU will be in a position to offer it as a non-member. Then it can make an informed decision. We are each allowed to change our minds in our private lives if the issue is important enough. Nations might sometimes allow themselves the same privilege.

Opinion @ The Guardian by John Bruton

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