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Category: BREXIT Page 3 of 9

WE NEED A FULL STRENGTH TEAM ON THE PITCH AS BREXIT REACHES THE ENDGAME

It is increasingly likely that, unless things change, on 1 January 2021,  we will have a no deal Brexit. The only agreement between the EU and the UK would then be the already ratified Withdrawal Agreement.

 There are only 50 working days left in which to make a broader agreement. The consequences of  a failure to do so  for Ireland will be as profound, and even as  long lasting, that those of Covid 19.

A failure to reach an EU/UK Agreement would mean a deep rift between the UK and Ireland.

 It would mean heightened tensions within Northern Ireland, disruptions to century’s old business relations, and a succession of high profile and prolonged court cases between the EU and the UK dragging on for years.

 Issues, on which agreement could easily have been settled in amicable give and take negotiations, will be used as hostages or for leverage on other issues. The economic and political damage would be incalculable.

We must do everything we can to avoid this.

Changing the EU Trade Commissioner in such circumstances would be dangerous.  Trying to change horses in mid stream is always difficult. But attempting to do so at the height of a flood, in high winds, would  be even more so.

The EU would lose an exceptionally competent Trade Commissioner when he was never more needed. An Irishman would no longer hold the Trade portfolio. The independence of the European commission, a vital ingredient in the EU’s success would have been compromised…a huge loss for all smaller EU states.

According to Michel Barnier, the EU/UK talks , which ended last week, seemed at times to be going “backwards rather than forwards”.

The impasse has been reached for three reasons.

THE MEANING OF SOVEREIGNTY

Firstly, the two sides have set themselves incompatible objectives.

The EU side wants a “wide ranging economic partnership” between the UK and the EU with ”a level playing field for open and fair competition”. The UK also agreed to this objective in the joint political declaration  made with the EU at the time of the Withdrawal Agreement.

Since it agreed to this, the UK has had a General Election, and it has changed its mind. Now it is insisting, in the uncompromising words of it chief negotiator, on

 “sovereign control over our laws, our borders, and our waters”.

This formula fails to take account of the fact that any Agreement the UK might make with the EU (or with anyone else) on standards for goods, services or food stuffs necessarily involves a diminution of sovereign control.

Even being in the World Trade Organisation (WTO) involves accepting its rulings which are a diminution of “sovereign control”. This is why Donald Trump does not like the WTO and is trying to undermine it.

The Withdrawal Agreement from the EU (WA), which the UK has already ratified,  also involves a diminution of sovereign control by Westminster over the laws that will apply in Northern Ireland (NI) and thus within the UK.

 The WA obliges the UK to apply EU laws on tariffs and standards to goods entering NI from Britain, ie. going from one part of the UK to another.

This obligation is one of the reasons given by a group of UK parliamentarians, including Ian Duncan Smith, David Trimble, Bill Cash, Owen Patterson and Sammy Wilson, for wanting the UK to withdraw from the Withdrawal Agreement, even though most of them voted for it last year!

Sovereignty is a metaphysical concept, not a practical policy.

Attempting to apply it literally would make structured, and predictable, international cooperation between states impossible. That is not understood by many in the UK Conservative Party.

THE METHOD OF NEGOTIATION

The second difficulty is one of negotiating method. The legal and political timetables do not gel.

The UK wants to discuss the legal texts of a possible Free Trade Agreement first, and leave the controversial issues, like level playing field competition and fisheries, over until the endgame in October.

The EU side wants serious engagement to start on these controversial issues straight away .

Any resolution of these controversial issues will require complex legal drafting, which cannot be left to the last minute. After all, these legal texts will have to be approved by The EU and UK Parliaments before the end of this year.

There can be no ambiguities or late night sloppy drafting.

The problem is that the UK negotiator cannot yet get instructions, on the compromises he might make , from Boris Johnson. Boris Johnson is preoccupied instead with Covid 19, and with keeping the likes of Ian Duncan Smith and Co. onside.  He is a last minute type of guy. 

TRADE RELATIONS WITH OTHER BLOCS

The Third difficulty is  that of making provision for with the Trade Agreements the UK wants to make in future with other countries like the US, Japan and New Zealand. Freedom to make such deals was presented to UK voters as one of the benefits of Brexit.

The underlying problem here is that the UK government has yet to make up its mind on whether it will continue with the EU’s strict precautionary policy on food safety, or adopt the  more permissive approach favoured by the US.

Similar policy choices will have to be made by the UK on chemicals, energy efficiency displays, and geographical indicators.

The more the UK diverges from existing EU standards on these issues, the more intrusive will have to be the controls on goods coming into  Northern Ireland from Britain, and the more acute will be the distress in Unionist circles in NI.

Issues that are uncontroversial in themselves will assume vast symbolic significance, and threaten the peace of our island.

The UK is likely be forced to make side deals with the US on issues like hormone treated beef, GMOs  and chlorinated chicken. The US questions the scientific basis for the existing EU restrictions, and has won a WTO case on beef on that basis.  It would probably win on chlorinated chicken too.

 If the UK conceded to the US on hormones and chlorination, this would create control problems at the border between the UK and the EU, wherever that border is in Ireland.

Either UK officials would enforce EU rules on hormones and chlorination on entry of beef or chicken to this island, or there would be a huge international court case.

All this shows that, in the absence of some sort of Partnership Agreement between the EU and the UK, relations could spiral out of control.

Ireland , and the EU, needs its best team on the pitch to ensure that this  does not happen!

BREXIT….HEADING FOR THE CLIFF EDGE

Last Friday Michel Barnier gave a stark warning about the lack of progress in the Brexit negotiation. 

But this week Boris Johnson has come back to work. 

Perhaps it was unrealistic for Michel Barnier to have expected the UK to  have engaged seriously with the trade offs and concessions, essential to a long term Agreement  , while the UK Prime Minister was ill.

Brexit is Boris’ big thing. He made it. Other Tory Ministers have no leeway to make Brexit decisions without his personal imprimatur. He has purged from his party of all significant figures who might advocate a different vision of  Brexit. 

The point of Michel Barnier’s intervention is that, now that Boris is back at work, he will need to  give a clear strategic lead to the UK negotiating team.  If he fails to do that, we will end up, on 1 January 2021, with No Deal and an incipient trade war between the UK and the EU.  Ireland  will be in the front line.

 The scars left by Covid 19 will eventually heal, but those left by a wilfully bad Brexit,  whether brought  about deliberately or by inattention, may never heal. 

This is because a bad Brexit will be a deliberate political act, whereas Covid 19 is just a reminder of our shared human vulnerability.  

Boris Johnson signed up to a Withdrawal Treaty with the EU, which  legally committed the UK to customs, sanitary, and phytosanitary controls between Britain and Northern Ireland, so as to avoid controls between North and South in Ireland.

 So far, Michel Barnier says he has detected no evidence that the UK is making serious preparations do this.  An attempt by the UK to back out of these ratified legal commitments would be seen as a sign of profound bad faith. 

Michel Barnier said that negotiating by video link was “surreal”, but that the deadlines to be met are very real.

 The first deadline is the end of June.  This is the last date at which an extension of the negotiating period beyond the end of December might be agreed by both sides. While the EU side would almost certainly agree to an extension, there is no sign that the UK will agree. Tory politicians repeatedly say they will not extend. 

This tight deadline would be fine, if the UK was engaging seriously, and purposefully, in the negotiation.

 But, according to Michel Barnier, the UK has not yet even produced a full version of a draft Agreement,that would reflect their expectations. The EU side produced its full draft weeks ago.  Without full texts it is hard to begin real negotiation. So far the UK has only produced texts of selected  bits of  the proposed Treaty.

 But the UK  insist that Barnier keep these bits of  draft UK text secret, and not share them with the 27 Member States. Giving Barnier texts that he cannot share with those on whose behalf he is negotiating, is just wasting his time. It seems to me the UK negotiators are adopting this strange tactic because they have no clear political direction from their own side.  They do not know whether these bits of text are even acceptable in the UK!

In the political declaration, that accompanied the Withdrawal Agreement, Boris Johnson agreed his government would use its best endeavours to reach agreement on fisheries by the end of July. Such an agreement would be vital if the UK fishing industry were to be able to continue to export its surplus fish to the EU. Apparently there has not been serious engagement from the British side on this matter. 

The other issue on which Barnier detected a lack of engagement by the UK was the so called “level playing field” question.

 The EU wants binding guarantees that the UK will not, through state subsidies, or through lax environmental or labour rules, give its exporters an artificial advantage over EU (and Irish) competitors.

 The “level playing field” is becoming a difficult issue within the EU itself.

 In the response to the Covid 19 economic downturn, some of the wealthier EU states (like Germany) are giving generous cash/liquidity supports to the industries in their own countries. 

 On the other hand, EU states with weaker budgetary positions (Italy, Spain and perhaps even Ireland) cannot compete with this.

 It is understandable that temporary help may be given to prevent firms going bust in the wake of the Covid 19 disruption.  But what is temporary at the beginning, can easily become indefinite. And what is indefinite can become permanent. Subsidies are addictive.

 The reason we have a COMMON Agricultural policy in the EU is that, when the Common Market was created 60 years ago, nobody wanted rich countries to be able to give their farmers an advantage over farmers in countries whose governments could not afford the same level of help. The same consideration applies to industry. Subsidies should be equal, or should not be given at all.

 State aid must be regulated, inside the EU, if a level playing field is to be preserved. To make a convincing case for a level playing field between the EU and the UK, the EU side will need to show it is doing so internally. This will be a test for President Von der Leyen, as a German Commissioner.

Which way will Boris Johnson turn on the terms of a deal with the EU?

I think it is unlikely he will look for an extension of the Transition period beyond the end of this year. 

He wants a hard Brexit, a clean break as he would misleadingly call it,  but he knows it will be very painful.

 He will probably reckon that the pain of a hard Brexit ,or no Deal, Brexit at the end of December, will be concealed by the even greater and more immediate pain of the Covid 19 Slump. Brexit will not be blamed for the pain. But if Brexit is postponed until January 2022, the Brexit pain will be much more visible to voters.

The Conservative Party has become the Brexit Party. It is driven by a narrative around re establishing British identity, and is quite insensitive to economic or trade arguments. It wants Brexit done quickly because it fears the British people might change their minds. That is why there is such a mad rush. It is not rational. It is imperative!

A FRAUGHT NEGOTIATION BETWEEN THE EU AND THE UK IS LOOMING

 #banksy

There are increasing grounds for concern that the UK is backing away from the legal and political commitments it made last October in its Withdrawal Agreement with the EU. The Withdrawal Agreement was made before the UK General Election, when Boris Johnson led a minority government. Now he has an overall majority, and the prospect of four more years in office. He has more weight to throw around, at least in the short term. Some of the governments on the EU side are not in such a strong position.

 There is a suspicion that he may now be backing away from legally and politically binding commitments he gave to the EU last October in order to appear to “get Brexit done” before his General Election.

For example, the newly appointed Northern Ireland Secretary has stated that there “will be no border down the Irish Sea”.  Boris Johnson has made similar comments.

 

This could be interpreted as meaning that the UK was acting in bad faith when it agreed last October to the Withdrawal Agreement and to its legally binding protocol on Ireland.

In the Protocol, the UK committed itself to what amount to border controls between Britain and Northern Ireland.

While the word “border” is not used in the Protocol, the UK accepted in Article 5, that  EU customs duties would be collected on goods coming into Northern Ireland from Britain which if those goods were “at risk of subsequently being moved” to the rest of Ireland and thus into the EU.

It was also envisaged that goods would also have to check for the purposes of collecting the appropriate amount of VAT, and to verifying their origin. EU officials were to have a right to be present when this checking was being done, so as to assure themselves that the UK officials were correctly interpreting the EU laws that would apply in Northern Ireland.

The protocol contains detailed provisions for determining how UK goods, that were at risk of entering the EU through Ireland, might be identified and controlled, and how the customs duties on them might be collected. This was not to be done at the land border in Ireland, so it had to be done before the goods entered Northern Ireland, effectively on either side of the Irish Sea.

It is difficult to see how the new Northern Secretary’s comment the there would be no border in the Irish Sea can be compatible with the legally binding protocol agreed to by the UK, unless one interprets that the word “border”  as only applying to a border on land.

The UK Government also seems to backing away from the commitments, on ensuring fair competition, it made in the Political Declaration which it agreed with the EU as the framework for the Withdrawal Agreement.

This Political Declaration, while not legally binding in the same way as the Withdrawal Treaty itself, is part of the Withdrawal process under Article 50 of the EU Treaties, and it is referred to in the Withdrawal Treaty.

For either the EU or the UK to back away from what they had agreed in the Political Declaration would amount to bad faith, and could poison future relations.

One can accept that, once the UK leaves the EU, the EU should accept the autonomy of the UK’s decision making processes, and vice versa.

 It a legal sense, there should be a relationship of equals between the EU and the UK.

But if there is to be trade between the EU and UK, it is only common sense that there  be  basic compatibility of standards. Indeed most modern trade agreements are more about standards than they are about mere tariffs and quotas.

The Political Declaration, agreed by the UK last October, makes repeated references to the need for  provisions for a level playing field and fair competition in any future agreement between the UK and the EU.

 Article 17 says the Partnership between the UK and the EU should ensure

a level playing field for open and fair competition

 between UK and EU firms.

 Article 77 commits the UK and the EU to

uphold the common high standards applicable to the EU and the UK at the end of the transition period in areas of state aid, competition, social and employment standards, environment, climate change and relevant tax matters.

The common standards applying at the end of the transition period at the end of this year are the existing EU standards. The UK agreed there would be no rolling back of these  EU standards.

 But Boris Johnson said, in a speech in Greenwich earlier this month, that

There is no need for a free trade agreement to involve accepting EU rules on competition policy, subsidies, social protection, the environment or anything else anymore than the EU is obliged to accept UK rules.

Prime Minister Johnson’s EU negotiator, David Frost went further this week when he said

to think that we might accept EU supervise of so called level playing field issues simply fails to understand the point of what we are doing

adding that the UK must be free to “set laws that suit us” and that

 this is the  point of the whole project.

On the face of it, these statements appear to be a flat contradiction of what Mr. Johnson and his government agreed to last October in the Political Declaration.

The level playing field provisions in the Political Declaration clearly envisage mutual supervision of the EU by the UK, and vice versa, to ensure that neither side does anything that interferes with open and fair competition or rolls back standards.

There may be some room for benign interpretation.

Prime Minister Johnson could say he is referring to rules to be made in future by either the EU or the UK, and not to the rules in force now.

 But the Political Declaration is only says that the “common high standards “, in force at the end of the transition period, should not be reduced. It does not prevent new rules being made by either side, so long as they do not reduce these standards. So it is difficult to know what Mr. Johnson and Mr. Frost are talking about.

 The agreed Declaration does not require the UK or the EU to use exactly the same words to maintain those standards, just that standards should not be reduced.

The statement by David Frost, rejecting any EU supervision of what the UK does, could undermine the Political Declaration in a fundamental way.

The UK, if it wants good relations with all its immediate neighbours, should dial back the rhetoric. Trust needs to be rebuilt.

The EU should also be careful not to over estimate its own negotiating leverage, and not to look for certainty on everything.

WHAT STICKING POINTS IN UK/EU TRADE DEAL?

The UK government will shortly begin the negotiation of a free trade agreement with the European Union. The deal Leo Varadkar made with Boris Johnson, on the location of border controls, will be vital in keeping the UK close to the EU.

 Before the negotiations start, the EU will have worked out a detailed negotiating mandate, drawing on its experience of previous international trade agreement into which it has entered, of which there are many. 

Once finalised, the EU mandate will become public, making any departure from its terms difficult. 

This is especially important if, as is likely, the final agreement has to be approved by the national parliaments of each of the 27 member states. If the eventual agreement goes beyond a bare bones trade agreement covering goods, and includes services as well, ratification by all national parliament will be likely to be required.  

On the UK side, it is assumed that similar work is now under way. But the task for the UK is bigger than that of the EU.

 The UK also needs to negotiate replacement agreements with all the other countries, with which it now has agreements as an EU member, but which will lapse once the UK leaves the EU.

 In addition, the UK will also be hoping to negotiate an agreement with the US. 

The demands of the other countries, with which the UK will be negotiating trade agreements later, will not necessarily be compatible with what the EU will want in its agreement with the UK.  Chlorinated chicken from the US is a case in point. 

The UK will probably have to conclude it deal with the EU first, because of the very tight timelines that the UK has chosen to impose on itself in the Withdrawal Agreement. The UK may find itself having to make concessions to the EU at the expense of other potential future trade partners. Alternatively, the UK may gamble on getting a better deal from the US or someone else, and thus sacrifice markets in the EU, in favour of a yet to be agreed deal with the US, or someone else. In this, agriculture will be a key battleground, with vital Irish interests at stake.

 It will be high stakes poker played against a tight deadline. Until the negotiations are under way, it will not be clear exactly where all the difficult choices, may be.

The Agreement that the EU has with Canada is a model that may be followed. This Agreement provides for free trade in most goods, but not services. It has detailed chapters, accompanied by principles and dispute settlement mechanisms, on issues as diverse as technical barriers to trade, dumping, subsidies, public contracts, state enterprises, competition policy, intellectual property, environmental standards, telecoms, water quality, fisheries and agriculture.

As an EU member, the UK has settled understandings on all these matters with its 27 EU partners. Tt the end of this month, that will change.

Outside the EU, the UK will have the freedom, unilaterally, to depart from its present EU based standards, and make its own rules. Boris Johnson has said this is the “whole point” of Brexit.   

 The EU has no way of knowing what changes this, or a future, UK government might make in social, environmental, or product rules. Political assurances from the present UK government will be of little value. The EU side will demand legally binding assurances that will tie the UK down, no matter who is in power in Westminster. All sorts of hypothetical situations will have to be anticipated. Appropriate penalties will have to be agreed in principle.

Both sides will need to make new rules from time to time, as new challenges emerge.

 As an EU member, the UK has had a democratic say in new EU rules. Outside the EU, the UK will have  to rely on diplomacy, rather than democracy, to protect its interests. 

 If the EU/ Canada Agreement is a guide, a multiplicity permanent committees of EU and UK officials will have to be set up, on a permanent basis, the iron out disputes if standards diverge.  Arbitrators and judges will be needed. 

“Taking back control”   will not turn out to be as clean, or as simple, as Brexiteers expected.

 A huge challenge will be that of ensuring there is a “level playing field” between UK and EU firms, doing business in one another’s markets. If either side changes its labour, social or environmental standards in future,  in a way that reduces costs for its firms , there are liable to be complaints that the playing field is no longer level. The playing field will not be level if the value of sterling is kept artificially low, or if the UK allows the importation of cheap inputs, that the EU had banned.

 Level Playing field issues, like these, arise in every trade negotiation, especially between close neighbours. For instance, the US has recently insisted on changes the Mexican labour rules to protect US car makers from Mexican competition. It has complained about Chinese currency policy.

 Permanent adjudication mechanisms will be needed established to decide if the playing field has, in fact, been skewed unfairly. Issues that are now ironed out informally in the EU Council of Ministers, or inside the Commission, may, in future, become the subject of high profile disputes. This will mean more uncertainty for business and may inhibit investment. Many of these disputes may involve Ireland.

The best hope of reducing disputes is if UK policy stays close to EU policy. The more UK rules diverge from EU rules, the more severe will have to be the controls that the UK will have to impose , within the UK itself but across the Irish Sea, on goods entering Northern Ireland, which might   eventually enter the EU Single Market through Ireland. The UK will want to avoid this. The UK government will have a strong political incentive to minimize the scale of these barriers within the UK .  

So thanks to Leo Varadkar’s deal with Boris Johnson in the Wirral, the UK will have a strong incentive to adopt standards close to, the same as, those of  the EU. That will be the ONLY way to avoid trade barriers within the UK. If so, Leo Varadkar will have earned an important place in European history.

CAN A CHAOTIC “CRASH OUT” BREXIT, IN DECEMBER 2020, BE AVOIDED?

“Let’s get Brexit done” is Boris Johnson’s election slogan. His implication is that, once he gets a working parliamentary majority to ratify his revised Withdrawal Treaty, Brexit will be quickly done and dusted. 

This is over optimistic, to put it mildly.

There are three realistic outcomes to the Election, 

  • a Tory majority ( the most likely scenario at this stage),  
  • a Labour led government with the support of other parties, or   
  • a  hung Parliament in which no one can command a majority and form a government.

Even if Boris Johnson wins a majority, to get Brexit done he will still have to conclude a very complex trade negotiation with the EU, within an almost impossibly tight self imposed time line, by December 2020 (the end of the post Withdrawal Transition period).

He has tied himself be a commitment to Nigel Farage that there will be no extension of the December 2020 deadline. This is how he got the Brexit Party withdrew its candidates in all Tory held constituencies.

Reneging on that promise, because the negotiation need more time, would be costly for Boris Johnson, especially as it would  also extend the period in which the UK would have to continue contributing to EU funds.

If he were to change his mind and look for an extension of the post Withdrawal transition period beyond 2020, he will have to give notice of this by July of next year. The Withdrawal Treaty (Article 132) only allows for one extension of either one or two years. This is different from Article 50 extensions on which there is no legal limit.

If the deal is not done before the end of the (very short) transition period, then the UK crashes out of the EU with no deal at all. Remember this Trade deal will have to be ratified in the parliaments of all the EU member states, unlike the Withdrawal deal which only needed ratification by the European Parliament. So a crash out/no deal scenario is a major risk.

The implications of this for Ireland, and for the UK itself would be grave. 

This is only one scenario, the Tory majority scenario

The other  scenario concerns  what happens if Boris Johnson fails to get a majority.

Obviously if he fails , the next steps will  have to be decided by a replacement government. 

But who will head such a government, and what will be their Brexit policy? Neither question can be answered at this stage.

It is unlikely that Jeremy Corbyn’s Labour Party can have a majority on its own.  But Labour might be able to form a majority with support from the Scottish National Party, in return for a pledge to hold a referendum on Scottish independence.

Another possibility is that Labour could make an arrangement with the Liberal Democrats, but they would want a Prime Minister other than Jeremy Corbyn.

That could happen. If a majority of MPs said, in writing, that they wanted as Prime Minister, an alternative named Labour Party MP, not the leader , the Queen would call on that MP to form a government.

Either of these Labour led alternative governments would hold another referendum on Brexit . It might also seek amendments to the existing Withdrawal Treaty before holding that referendum.

This process would take a year or more to complete, so a lengthy extension of Article 50 would have to be sought. Meanwhile to UK would continue to contribute to EU funds.

All this would be quite messy, but it would be  preferable to a crash out, no deal, Brexit a year from now, which might occur if a majority Tory government were to make unrealistic trade demands of the EU.

A third possibility is that no potential Prime Minister could be assured of a majority in Parliament. Given that the UK now has a 5 party system, rather than the 2 party one it had for the past century, this is a real possibility. The Fixed Term Parliament Act requires the calling of another Election, 14 days after a no confidence vote, if no  government can secure the confidence of Parliament within those 14 days.

But let’s acknowledge that, at the moment, the most likely outcome is a Tory majority government. What happens when it proceeds to implement the revised Withdrawal Agreement and negotiate a Free Trade Agreement(FTA) with the EU? 

Given that the new Tory Parliamentary Party will be more radically pro Brexit than the old one, the UK negotiating position on the FTA   could be very demanding and very difficult for the EU to accept. Some of the new Tory MPs might even prefer a “no deal” on ideological grounds.

 Before negotiations with the UK begin, the EU side will have to secure a negotiating mandate from the 27 member states. 

 This will not be easy. Many states will have sensitive issues vis a vis the UK, for example

  • fisheries for Spain, 
  • agriculture for France, 
  • rules of origin for all members, and crucially,  
  • the maintenance of a level playing field for competition between firms inside the EU and those in the UK. 

Boris Johnson has said that, for him, the UK being able to have different environmental, social and product standards is the “whole point “of Brexit.  

There are real fears that UK would try to undercut the EU in these fields. 

So the EU will demand firm justiciable guarantees in the FTA that this will not happen. They will not take anything on trust. They will want a court to decide.

 Likewise, the EU will want justiciable guarantees that the UK will not give subsidies to its industries, of a kind that would not be permitted in the EU. 

The EU demand of binding arbitration will raise an allergic issue for Brexiteers.  The idea, that a “foreign court” might tell them what to do, is anathema to them.

If that is not agreed, it is hard to see how the EU could give up the possibility of introducing tariffs on UK exports to the EU, to level up the playing field.

Similar problems arise for agriculture and fisheries. The UK needs to decide what sort of farm policies it will have and if these will depart radically from EU norms.

If the UK tries to stop access for EU trawlers to its fishing grounds, it cannot expect tariff free access to EU markets for UK fish exports. Physical confrontations at sea are a real possibility.

There will also have to be a negotiation about cooperation between UK and Europol, and about money laundering. 

The position of Norway, will have to be considered. It contributes to EU funds in return for access to the Single Market. The UK cannot expect more, for a lesser contribution, than Norway makes. 

The position of countries like Japan and Canada, who have trade agreements with the EU , will have to be considered. They will look for any concessions the UK is given, other things being equal.

The earliest that the two sides would even be ready to start negotiating these difficult questions would be March 2020. On that basis, it is hard to see how it could all be wrapped up by December of next year. 

Remember the Canada Agreement with the EU took eight YEARS to negotiate, and the political atmosphere between Canada was much better, and the stakes much less, than is now the case between the UK and the EU.

Brexit is far from done. It is entering its dramatic second Act.

650 DIFFERENT ELECTIONS WILL DECIDE BREXIT

The UK General Election on 12 December will decide whether Brexit

  • goes ahead on the basis of Boris Johnson’s deal, 
  • is subject to a referendum or
  • is simply revoked.

But the result of the election will be affected by things that have little to do with Brexit.     The implications for taxpayers of Labour’s policies will be scrutinised. So will the personalities of the party leaders. The Conservative record will be a factor, as will their recent conversion to high spending.

In effect, the issue will be decided in 650 separate elections. Each constituency is different.

 A strong showing by a party, that has no chance of winning the seat itself, may siphon more votes away from one of the leading parties than it does from another, and this differential could tip the balance in favour of a party that would otherwise have lost the seat.

The UK electoral system forces voters to make tactical choices.

 If a voter wants to influence things, he/she may have to vote for a candidate, who has a good chance of winning and with whom they agree on some important issue, rather than for a candidate who may be closer to their views, but has no chance. 

Tactical voting is a very difficult exercise. Getting reliable information will be hard for voters to do. Disinformation and fake news will be factors.

The Conservatives are targeting Labour seats in constituencies that voted Leave in 2016, many in the Midlands and the North of England. But the Brexit Party will also target these same seats and the Brexit party does not have to defend a record in government, and is less associated with “austerity”.

The latest polls are very inconsistent.

 In the last ten days, 

A You Gov poll gave the Conservatives 37%, Labour 22%, Liberal Democrats 19% and the Brexit Party 12%

But an Opinium Poll gave the Conservatives 40%, Labour 24%, Lib Dems 15% and the Brexit Party 10 %.

These polls, taken before the election was called, suggest a Conservative majority government.

 But as the campaign goes on the Brexit issue will fade, and other issues may come to the fore, not least the slow performance of the UK economy in recent years.

My own experience is that polls, taken before an election is actually called, are not good predictors of the final result.

But a poll taken a week after the campaign has started is a much better indicator.

Other opinion polls suggest a deeply divided electorate. A poll done by Edinburgh and Cardiff Universities suggests a deeply polarised electorate.

Brexit appears to be a Conservative Party obsession, that is not shared by the supporters of other parties.

For Example, 82% of those who intend to vote Conservative say the unravelling of the peace process in Ireland would be a price worth paying to get Brexit done, whereas only 12% of Labour and 4% of Liberal Democrats are of that opinion. 

There is a similar difference between the parties on the risk that Brexit could lead to a referendum on Scottish independence. 

The gap between younger and older voters is also stark. 21% of those under 24 felt Brexit was worth risking the Irish peace process for, whereas 68% of those over 65 were prepared to take that risk. 

Older voters are more reckless, which goes against the conventional stereotype.

There is also a difference between the parties on how they perceive the likelihood of certain things actually happening.

Only 28% of Conservative voters believe Brexit is likely to lead to an unravelling of the Irish peace process, whereas 77% of Labour voters believe it is likely to do so. This suggests that people believe what they want to believe.

On the possibility of Brexit leading to a referendum on Scottish independence, 66% of English voters believe it will happen. There is only a modest difference between the parties in this. Very few actually want Scotland to leave the UK, but many are prepared to take that risk.

The great tragedy is that the British people, in a referendum during the Conservative/ Liberal Democrat coalition, rejected the Alternative vote electoral system. This would have given it a more evenly representative parliament. It would have made coalition the norm. If so, there would have been no Brexit referendum.

A Fixed Term Parliament combined with a winner take all electoral system was bound to lead to a crisis.  A fixed term Parliament would have been workable if there was a more proportional system of election, but it is not workable in a political culture, like that of the UK, which rejects coalitions.

Irish people will have to sit and watch an important aspect of our future being decided under a flawed electoral system which favours polarisation and over simplification. 

THE BORIS VERSION OF BREXIT

http://www.chathamhouse.org/

Make no mistake about it, the latest version of Brexit is a very hard Brexit.

The UK Government has abandoned the legally binding commitment in the previous deal to align with EU regulatory standards to the greatest extent possible. That is now dropped in favour of a political aspiration.

The more the UK diverges from EU standards the greater is the likelihood that the EU will have to place tariff and other barriers in the way of UK imports to the EU, and now also to Northern Ireland. The problem will be particularly acute for agricultural goods.

The EU/UK trade negotiation has yet to begin, but I believe it will be both lengthy and difficult. This is a direct result of the “red lines” for Brexit chosen by the UK (no custom union membership, no single market membership and no ECJ jurisdiction). This was a legitimate choice for the UK to make, but the costs of the choice are yet to be revealed and understood. When they are, it will be too late to change course. 

Many in the UK say they just want to “get Brexit over with”. The impatience is understandable, but the truth is that agreeing the Withdrawal Treaty will not actually get Brexit “over with”. The additional bureaucracy will be permanent. If there is not to be a no deal crash out, the transition period will have to be much long than the end of 2020, because the trade negotiation will only be in its early stages by then.

The only way to get  the agony of Brexit over with, would be to revoke Brexit. There is little popular support for that, so Brexit will drag on and preoccupy British politics for years.

By choosing a harder Brexit than Mrs May, and agreeing that the controls will be in the Irish sea, Boris Johnson has chosen to prioritize the interests of  hardline Brexiteers in England over the interests of the DUP in Northern Ireland. Such a choice was inherent in Brexit, which is why it will remain a puzzle for historians to discern why the DUP chose to support Brexit with such enthusiasm in the first place.

 THE WORLD AFTER BREXIT

I would like to turn now to the world after Brexit, and about the European Union, of which we will continue to be a member and in whose success we will now have a disproportionate interest.

The world has become a much more unpredictable place than it was 10 years ago. 

The era of easy decisions may be over.

A European country, Ukraine, has been successfully invaded by it neighbour, Russia, breaking solemn undertakings that had been given. We have been reminded of the importance of defence.

There is widespread evidence of interference in elections and democratic processes by authoritarian regimes in other parts of the world. Voting software is being infected. Campaigns are being hacked. National rules on election spending can be circumvented via the social media.

The United States has created doubt around its defence commitments to Europe. It has walked away from its Kurdish allies in Syria, and Europe was not able to fill the gap, although the refugees from that conflict are more likely to end up in Europe than in America. In fact Europe is dependent on Turkey and North Africa to curb mass migration to the southern shores of the EU.

The EU has not developed a migration policy, which, if properly organised , could bring dynamism to our continent to compensate for the loss of dynamism that will inevitably flow from the ageing of the native European population.

The US is undermining the rules based international order in the field of trade. It is refusing to allow the appointment of replacement judges to the WTO’s appellate court, which will soon lead to that court ceasing to function. This is happening just at the time that our nearest neighbour may find itself relying on the WTO once its post Brexit transition period expires. 

THE RISE OF CHINA

China is returning to the dominant position it held in the world economy in the two millennia up to 1800.

 It is doing this on the strength of its human capital, not its physical capital. It is educating more engineers that the US and the EU combined.

 It is doing it through its competitive and  innovative firms, not through its monopolistic state enterprises. Chinese R and D spending will exceed US Rand D this year and far exceeds EU R and D.

 It is ahead of everyone in 5G communications, at the time the world economy is becoming ever more digital.

Chinese firms own Volvo, Pirelli and recently bought the firms supplying robots to the German car industry. EU could not buy the equivalent Chinese firms.

Chinese military spending exceeds that of all EU states combined and is already half that of the US.

 If the US thinks it can use trade policy to arrest Chinese development, it is probably making a mistake. 

But the US is right to insist on fair competition. China must be treated in the WTO as a developed country, and not get concessions intended for much poorer countries.

In its response to the Chinese challenge, the EU should maintain its robust competition policy and should not try to pick industrial winners from Brussels.

THE RESPONSE OF EUROPE

Europe would be much better placed to defend its own interests, and to act as a balancing power in the world, if the euro functioned as a global reserve currency.

 To achieve that, we need to create a Capital Markets Union and complete the Banking Union. This requires a harmonisation of company insolvency rules throughout the EU or the eurozone.

The Eurozone must have a capacity to cope with localized shocks and to prevent contagion.  We need viable proposals for a eurozone wide reinsurance of bank deposits, and eurozone wide reinsurance of the unemployment  benefit systems of member states..

BREXIT IS A SETBACK FOR EUROPE……..STAGNATION MUST BE AVOIDED

There is no doubt but Brexit has been a setback for Europe.

True, the EU had maintained its unity and stability, in stark contrast to the way in which the UK system has been convulsed by the divorce. But that does not take away from the fact that we are losing a relatively young, diverse and creative member state. 

The EU’s strategic weight in the world will be reduced by the absence of the UK.

The population of the remaining members of the  EU are, in global terms, relatively elderly, pessimistic and risk averse. This could lead the EU to make big mistakes.

I give some examples of this.

Many member states refuse even to contemplate the amendment of the EU Treaties because of the risk of defeats in referenda. If that remains the attitude, the EU will simply stagnate. Every successful human organisation must have the capacity to change its rules if this is demonstrably necessary. The US is unable to amend its constitution and we can see the problems that has led to.

Unlike the US, the EU has been able to attract and accommodate new member states over the last 50 years. At last week’s Summit, France the Netherlands and Denmark blocked the opening of accession talks with North Macedonia even though that country has done everything the EU asked to qualify, even changing its name, which was a highly sensitive matter. 

The fact that this rejectionism was led by President Macron, who makes great speeches about European integration, is particularly disquieting. I hope he changes his mind. Yes, we need tougher means of ensuring that the rule of law in respected in the most rigorous way but that could have been dealt with in the negotiations with North Macedonia, which would have gone on for years any way.

 THE SINGLE MARKET

We must defend the integrity of the EU Single Market, at the borders of the European Union and throughout its territory. 

Ireland must be seen to be, fully compliant with EU Single Market rules. Otherwise Ireland’s geographic position will be used against it by competitors for the investment.

The EU Single Market is not complete. There is much more to do.

An April 2019 Study “Mapping the Cost of non Europe” estimated that 

    + completing the  classic single market would add  713 billion euros to the EU economy. 

    + completing Economic and Monetary Union would add a further 322 billion, and    

    + completing a digital single market a further  178 billion euros. 

 A more integrated energy market would save a further 231 billion and a more integrated EU approach to fighting organised crime would be worth 82 billion.

 Cross border VAT fraud is costing 40 billion. This will be an area of special concern in regard to traffic between Britain and Northern Ireland.

These are some of the reasons why we must complete the Single Market.

Services account for three quarters of EU GDP. 

 But  we have been very slow in creating a single EU market for services. 

 In the field of Services, only one legislative proposal had been adopted during the term of the outgoing Commission, a proportionality test for new regulations on professions.

 All other proposals are blocked.

 I think that a major obstacle is vested interests in national or regional governments, who do not want to give up power.

By completing the Single Market, the EU can show that it has much more to offer to the world than a post Brexit Britain.

To help complete the Single Market, Ireland should be open to qualified majority voting on energy and climate matters. 

We should also be open to carefully defined individual amendments to the EU Treaties if they can be shown to the public to deliver real benefits.

A LEVEL PLAYING FIELD

The existing Withdrawal Agreement protects UK environmental, product and labour standards, in a way that a mere Trade Agreement will never do.

 In any trade negotiation with a post Brexit Britain, maintaining a level competitive playing field will be vital.

 No subsidies, no cartels, and no undercutting of EU standards must be insisted upon.

Likewise the UK must not be allowed to undercut the EU on worker protection, environmental and product quality standards. The UK will have to set up bureaucracies to devise and enforce UK standards. 200 EU environmental laws will have to be replaced by the UK. Westminster will be busy.

EU WIDE DEMOCRACY

 It is over 40 years since the first European Parliament election.

 While the  EP elections are hotly contested, the contests are often really about national issues.

 A genuine EU wide debate does not take place, because the elections are confined within in national constituencies. An EU “polis” or public opinion has not yet been created.

My own view is that the President of the Commission should be elected separately from the Parliament, using a system of proportional representation (PR). 

We must have strong national democracy if we are to have a strong EU, and we must have strong national democracy if we are to have strong states.

 There are remarkable differences in the level of confidence people in Europe feel in their own national democracy. According to a recent Pew Poll, 72% of Swedes have confidence in how their national democracy works. Within the Netherlands confidence in their system was  68%, in Poland it was 61% and in Germany 65%. 

But , at the other end of the spectrum, only  31% of British, and 32% of Spaniards and Italians had confidence in their own democratic systems.

To build confidence in the EU, we also need to rebuild confidence in democracy itself, at every level of governance

THE DIFFICULTIES WITH THE NEW UK BACKSTOP PROPOSALS

There is, at last, some movement in the Brexit negotiation.

On the UK side, Boris Johnson previously insisted on the Irish backstop being scrapped. Now he is making proposals (unacceptable so far to the EU) to rewrite it.

On the EU side, there is a movement too.

 The present Agreement contains a backstop to cover the whole UK. Now the EU is apparently willing to contemplate a backstop confined to Northern Ireland (NI) alone. This is a step backward for Ireland.  An “NI only” backstop would not protect Irish trade with Britain which is more valuable than trade across the border with NI.

Why are the new UK proposals for an NI only backstop unacceptable so far to the EU?

It is hard to give a complete answer to this question because the UK has insisted that its legal text for the new backstop remain confidential. This is a pity because any such text could benefit from constructive criticism from outside the narrow confines of the UK negotiation team and the Article 50 Task Force.

The only thing we have to go on is an Explanatory note published by the UK Government.

The note says the UK Government wants to uphold the Belfast Agreement of 1998. This Agreement was made in good faith by the then Irish government, on the basis of joint Irish and British membership of the EU Single Market, which had come into force only five years earlier in 1993, and had removed trade barriers between the two parts of Ireland.

 If there was at that time any possibility of the UK ever withdrawing from the Single Market, it would have been for the UK side to have brought that up in the negotiations. Neither the then UK government, nor the Tory Opposition, did so.

  If they had, there would probably have been no Belfast Agreement.

This is because the Belfast Agreement is all about convergence between North and South, as well as convergence between Ireland and Britain.  In contrast, Brexit inevitably is about divergence between North and South, AND divergence between Britain and Ireland. At a fundamental level they are incompatible. 

While everybody may now be acting in full good faith, there is also the issue for the EU of the structural reliability of the UK as a negotiating partner. 

 A Conservative government, with a parliamentary majority, signed a joint paper with the EU, committing it to protect the Belfast Agreement and to avoid border controls.  Now another Conservative government, in the same Parliament but now without a majority, wants to renege on that. 

UK public opinion sees no problem with this, but it is difficult for the EU. The EU would be setting a precedent for future negotiations, with the UK and with others. 

The latest UK proposals would align the regulatory standards for goods in NI, with EU standards. This is a welcome move, but it would mean new controls, between NI and Britain, to check compliance with EU standards. On the other hand it would remove the need for controls, for this particular purpose, at the land border in Ireland.

 But the proposals completely ignore tariffs there will be between the EU and UK. Once the transition period is over, imports from the UK will have to pay EU tariffs, which are quite high for some products, particularly agricultural ones. 

These tariffs will have to be collected at or near the land border in Ireland. The proposal to align NI and EU regulatory standards for goods does not solve that problem of tariffs on those same goods. 

The collection of these tariffs at or near the border will be highly contentious, although it will be absolutely necessary if Ireland is to remain in the EU. 

 If , in future, the UK  makes a trade agreements with a third country (say the US), and has to make concessions on either tariffs or goods standards to get these agreements, there would  then have to be additional or wider controls. These wider controls would be the land border for tariffs, and between NI and UK for standards.

 This problem would get steadily worse as time goes on. Boris Johnson has said that the UK will deliberately diverge from EU labour, environmental and product standards and will be making many concessions in his trade deals, so the scope and scale of the controls will become greater all the time.

 These will be either on the land border, or on the Irish Sea. Both go against the convergence goals of the Belfast Agreement. 

The new UK proposals envisage a system of notifications to prevent prohibited products entering the EU and for the collection of VAT. It remains to be seen if these can be rendered compatible with the EU Customs code, which envisages the tariff, tax, and quality status of goods being checked at the same place, at a customs post on the border.

 I expect the Article 50 Task force are now subjecting these UK proposals to forensic examination. They will ensure that Ireland’s status as a fully compliant part of the EU Single Market is not put in doubt and that the VAT is collected.  

The entire UK package would create dangerous new opportunities for smuggling, and smuggling is often used to finance political terrorism and mafia practices. 

The UK proposals are conditional on “Consent” in Northern Ireland to adherence to EU goods and food standards and to the Single Electricity Market.

 They would not to come into effect, without the consent of the NI Executive and Assembly. This consent would have to be renewed every four years. 

 The NI Assembly nowadays seems incapable of meeting, let alone of making decisions, so I do not think the EU being happy to delegate the future of any hard won compromise it makes with the UK to it. It would be giving a regional body, in a non EU state, a power to obviate an Agreement into which the EU would have entered in good faith every four years. We must not forget that the NI Assembly operates on the basis of a “petition of concern” whereby, a minority ( 30 out of 90)  of members in the Assembly, could block consent to deal . 

This  NI “consent” provision is to be inserted into the heart of what one hopes will to be a balanced, and hard fought, overall deal between the UK and the EU. I cannot see the EU agreeing to  all this being subject to the ongoing vagaries of NI politics. 

THE HALLIGAN LECTURE

Ambassador Declan Kelleher and members of the committee of the Brussels branch of the IIEA at the Halligan lecture.

………………………………………………………………………………………………………………………………..

BRENDAN HALLIGAN

I would like to start by saying a few words about the man in whose honour tonight’s lecture is being held, Brendan Halligan .

 Brendan is the founder of the Institute.

 He could see, back in 1989, when he and a few friends came together to found this Institute, that the European Union was developing fast and that Ireland needed to be an informed participant in European debates, including on issues of no apparent direct interest to our island, on the western edge of the continent. 

As he saw it, it was only by understanding the problems of others and contributing intelligently to solving them, that Ireland itself could make sure it got a good hearing in Europe when it needed it.

Prior to founding the IIEA, Brendan had been from 1967 a very effective General Secretary of the Labour Party, attracting many bright people of his generation into that party.

He became a member of the European Parliament in 1983, and in 1984 was one of the MEPs who voted for the Spinelli Report which called for Federal Union in Europe. This stance earned him severe reproofs from some more cautious elements in his own party but he held his ground.

Brendan is much influenced be  Altiero Spinelli, like him a man of the Left , and colleague in the European Parliament, and I understand from one of the co founders of the IIEA, Tony Brown, that Brendan modelled the IIEA on the  equivalent Italian Institute that Spinelli had founded.

In addition to all this, Brendan has been a successful businessman, chairing Bord na Mona for ten years, and he continues to work actively for the development of  renewable energy, a matter of ever increasing urgency.

THE THEME OF THIS LECTURE

 The EU is a treaty based organisation.

 States are entitled to withdraw from treaties.

 But they are not entitled to so in a way that nullifies the value of other treaties that still bind them. They are obliged to take account of the effect of their withdrawal on neighbouring states.

The UK is still bound by the Belfast Agreement of 1998, and the Anglo Irish Treaty that underpins it.  

Brexit, in the extreme form contemplated by the current UK government (no customs union and no single market), poses an existential threat to the Belfast Agreement. 

 Mrs May tried to face up to that contradiction. Her successor, Boris Johnson so far refuses to do so.

The Brexit saga will eventually come to an end, somehow or other, and the EU, with or without Britain, will have to face other challenges.

 Later on in this address, I will say a few words about these challenges. Notwithstanding its preoccupation with Brexit, Ireland must adopt a proactive approach to all these issues, in its own interests, and in those of the EU.

BREXIT……THE KEY PARAGRAPH IN PRIME MINISTER JOHNSON’S RECENT LETTER TO EU HEADS OF GOVERNMENT

 Mr Johnson told his fellow Presidents and Prime Ministers 

“When the UK leaves the EU and after any transition period, we will leave the single market and the customs union. Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.”

DIVERGENCE FOR ITS OWN SAKE

This is the most revealing paragraph of HIS entire letter to his fellow leaders

The point of Brexit, according to Mr Johnson, is to “diverge” from EU standards on environment, product and labour standards. 

 This  would mean, in the absence of the Irish  backstop, that Northern Ireland’s environment, product, and labour standards  will continuously, and progressively over time, diverge further and further away from those of Ireland (as a  continuing member of the EU) and of the rest of Europe. 

 Significantly, although it has been promoting Brexit for years now, the UK government has yet to say which EU standards it wants to diverge from, and why it wishes to do so.

 Most Brexit supporters would have difficulty naming one EU based law that has had an adverse effect on their lives.

It is, therefore, reasonable to conclude from Mr Johnson’s letter, that divergence, for its own sake, is what the UK wants. That was not the approach of the May government. 

It is important to tease this out. Prime Minister Johnson has said he is committed to the” letter and the spirit” of the Belfast Agreement.

Given that the Good Friday Agreement is all about convergence (not divergence) between the two parts of Ireland, and between Britain and Ireland, there is a head on contradiction between  Mr Johnson’s proclaimed commitment to the Belfast Agreement , and his commitment that the UK will progressively and intentionally diverge from EU standards.

The more regulatory divergence there is between the two parts of Ireland, the more border controls or other barriers there will have to be. 

 On day one, relatively few border controls may be necessary. 

But, by day one thousand and one, after the deliberate divergence had been done by the UK, far more border controls will be necessary.

By day two thousand and one, in about six years from now, the UK rules and tariffs will have diverged even further from EU ones, and even greater barriers and controls will  then be needed between North and South in Ireland, and between Ireland and Britain. 

Nobody knows for sure which present rules or tariffs a future UK, government might change and in what direction.

 It is because of this complete uncertainty about the future direction of UK policy that the issue of North/South relations in Ireland, and the compatibility of Brexit with the Belfast Agreement, HAD to be settled upfront, in the Withdrawal Treaty. 

Hence the backstop. 

Leaving all this over until the wider trade negotiation with the UK, if one is ever concluded and ratified, might have meant that the UK government would never have faced up to the issue. The incompatibility, between the form of Brexit it has chosen and the Belfast Agreement , might have continued to be ignored by UK negotiators. 

They would probably have tried to agree everything else, and to leave the inconvenient “Irish problem” off to the very end of the negotiation, in the hope of isolating Ireland.

 The issue had to be faced, sooner or later. 

It is hard ,and not without risk, to put it to the test now, but it is much less risky than leaving it over until everything else is settled..

THE UK NEGOTIATING STYLE

A backstop to cover the whole UK, including Northern Ireland, is what is contained in the existing Withdrawal Agreement. 

This was requested by the UK but it is the best outcome for Ireland, because East/West trade supports even more jobs in Ireland, than does North/South trade, although both are very important. 

For the EU, at this very late stage, to contemplate reverting to a Northern Ireland only backstop would be a significant concession for the EU to make, and potentially a costly one for Irish exporters to Britain.

 But does the UK see that ?  I do not think so.

When concessions are made to the UK in EU negotiations, they are often not recognised by the UK as concessions, and are often just pocketed without a word, and becoming a platform for another demand.

 Look at how the UK negotiated on Justice and Home Affairs in the Lisbon Treaty.

 Look at the way the” renegotiation” concessions to David Cameron in 2016 were ignored in the subsequent UK Referendum debate.

 In fact some of those concessions would have been damaging to the EU and it is good that they are gone.. 

Exempting the UK from the commitment to ever closer union of the peoples of Europe would have been used as a precedent by populists in other states, and the suggested “Red Card”  would have gummed up the EU legislative process, making the completion of the Single Market more difficult.

HOW BREXIT WAS DECIDED….THE MEANING OF DEMOCRACY

Brexit arose from a referendum in the UK in 2016, in which the larger populations in England and Wales were able to outvote the smaller populations in Scotland and Northern Ireland, who favoured remain.

There are two democratic principles at play here, consent, and respect for minorities.

 Mr Johnson’s own letter refers to

 “respect for minority rights” and to “consent”

 The majority of people in Northern Ireland voted against Brexit, but their wishes are to ignored because a majority in the wider UK voted for Brexit.. One of the fundaments of democracy is that governance should have the consent of the governed.

 The people of Northern Ireland have not “consented” to Brexit, or to the new barriers, controls, and costly bureaucracy that flow from it.

 And one of the fundaments of a successful union between different nations is a decision making process that shows respect for minorities and smaller nations.

The process by which Brexit was decided in the UK did not pass these tests.

As any football fan knows , the UK encompassed four nations,

 England,

 Scotland,

 Wales and 

Northern Ireland.

 Brexit had the consent of the voters of England and Wales, but it did not have the consent of the voters of Northern Ireland, nor of Scotland. 

The purely majoritarian Referendum allowed two of the UK’s nations to overrule the other two. That would  not happen in our European Union.

Brexit, no matter what way it may now be implemented, will change the status of Northern Ireland, and will do so without the consent of the people living in Northern Ireland. 

WHAT IS THE ESSENCE OF SOVEREIGNTY?

 In his recent letter to his fellow EU Heads of Government, Prime Minister Johnson claimed that the Irish backstop is inconsistent with the “sovereignty” of the UK as a state. 

 All international agreements impinge on sovereignty. 

But the sovereignty of a state primarily consists in its having a monopoly on the use of force within its territory. The backstop does not diminish UK sovereignty in that way. 

By joining the EU in 1973, the UK agreed to pool aspects of its sovereign rule making authority with other EU member states. It entered into a succession of EU Treaties on that basis.

 While  it was always possible  in international law for the UK  to renounce these Treaty commitments, as it is now doing,  the UK was, and is, obliged to take proper account of the effect  this has on other parties to the Treaty.

After all, these other EU states, including Ireland, acted in good faith on the basis that these shared EU Treaty commitments would continue to be adhered to by the UK.  Ireland acted on that assumption when it changed its constitution to facilitate the Belfast Agreement it made with the UK in 1998. 

It is the UK that is now taking the initiative to renounce the EU Treaties, so it is for the UK to take the primary responsibility for finding a way to reconcile that renunciation with the other Treaty commitments it has made, notably  its legal Agreement made in Belfast in 1998.

That is how international relations work, and why renouncing Treaty commitments is a rare occurrence. 

Unfortunately, the UK never faced up to that responsibility.

 That was a failure of statecraft on the part of the UK, and of the UK alone.

THE IMPORTANCE OF RULES IN INTERNATIONAL COMMERCE

Adhering to Treaty commitments is usually in a state’s self interest. 

This is because, in international commerce, rules are important. That is a commercial and political reality.

 Without shared rules or understandings, commerce would be impossible.

 The EU is an engine for

  •  making rules democratically,
  •  enforcing them consistently and
  •  interpreting them uniformly.

 I do not think these realities of international commerce were explained to the UK electorate by their leaders over the last 40 years, which is why the English and Welsh electorate fell for the Brexit delusion.. 

Mr Johnson claimed in his letter

“The Belfast (Good Friday) Agreement neither depends upon, nor requires, a particular customs or regulatory regime.“

That is true, but disingenous.

 At the time the Agreement was negotiated, both the UK and Ireland were in the same customs and regulatory regime….that of the EU.

 That was taken for granted, and did not have to be made explicit in the Agreement. In any event in 1998, if there was in fact a possibility of the UK leaving the EU, it would have been the responsibility of the UK to have brought that up in the Good Friday negotiations.

 It did not do so, and, to the best of my knowledge, the Conservative official opposition,  did not bring it up either.

 If they had done so, it would have been a very different negotiation. 

Prime Minister Johnson goes on

“The broader commitments in the Agreement, including to parity of esteem, partnership, democracy and to peaceful means of resolving differences, can be met if we explore solutions other than the backstop.”

This is a strangely vague  statement to make, barely a month away from the 31 October deadline.  No solid proposal, just “possibilities” and “explorations”. Not good enough,

I now need to pose the following two questions.

DOES MR JOHNSON WANT TO CREATE NEW OPPORTUNITIES FOR SMUGGLING AND THE ACTIVITIES FINANCED BY IT?

DOES HE WANT TO UNDERMINE THE EU SINGLE MARKET?

Mr Johnson’s letter says

“This Government will not put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. We would be happy to accept a legally binding commitment to this effect and hope that the EU would do likewise.”

This reads to me like a straightforward attempt by a UK Prime Minister to destroy the EU Single Market. 

He seems to want the EU to legally bind itself not to enforce its own rules at its own borders.

If neither side enforce their rules, this will create want a “no man’s land” in the vicinity of the Irish border, where no controls or checks would apply.

 This is an open invitation to criminal and subversive organisations, who have financed themselves in the past by smuggling.

 Brexit will create a whole new set of opportunities for smuggling and consequently for the financing of subversive organisations

 Given that one such, smuggling financed , criminal organisation attempted to murder one of his predecessors as Conservative leader, one would be forgiven for thinking that Boris Johnson has not studied the history of his party closely enough.

At the moment, the only products where there are big price differences on either side of the border are fuel ,alcohol and tobacco. And there are huge revenue losses to legitimate traders and to the state on both sides of the border because of highly organised smuggling by criminal organisations. I reckon the losses are as much as £200 million, without Brexit.

Imagine what it will be like after a hard Brexit, in the absence of a backstop. 

There will be hundreds of new products where there will be progressively ever greater price differences on either side of the Irish border, due to different rates of tariff and different standards. A whole new set of opportunities for smugglers will thus be created, on top of the opportunities they are already exploiting. 

The opportunities for smugglers will  probably be trebled, thanks to a UK policy of deliberate divergence from the EU, in the event a hard Brexit without a backstop.

It would be downright irresponsible, in last weeks before this fateful decision may be made, to fail to highlight these foreseeable consequences of a hard Brexit.

Of course the smugglers are criminals, and they must be treated as such. But to counter them, the burden placed on policing services on either side of the border will increase exponentially, and  scare police resources will have to be diverted from dealing with conventional crime.

 For a UK government to go out of its way to create new opportunities for smugglers by insisting, on the basis of some high principle of not having an Irish backstop, is irresponsible. This is a truth that must be stated..

WHY CHECKS ARE NEEDED TO PROTECT THE SINGLE MARKET

To sum up, in the event of Brexit without a backstop,controls  and checks on the goods and services that may cross EU borders will be essential . 

This is because

 +  the UK has said it will to make trade deals, with different rates of tariffs,  and/or different quality standards for goods and services to the ones applied by EU, and

+  the UK has decided it will  increasingly diverge from EU environmental , product, and labour standards.

If it fails to protect its Single Market, the EU will not be able to continue to lead the world in setting higher standards to protect the climate, and to protect the privacy of the data of its citizens.

 That is why the EU cannot allow its nearest neighbour, and recently departed member, to undercut its standards with impunity.

The requirements to be fulfilled by Ireland, as part of the EU Customs territory, at its borders and its ports, are set out  clearly and in immense detail in the EU Customs Code.

 The Code was adopted in October 1992 by Council Regulation 2913/92, with full UK participation. 

 It requires the uniform application of the Code across the entire customs territory of the EU.

The UK knows full well what Ireland will be legally obliged to do as a continuing member of the Single Market and Customs Union.The fact that Mr Johnson has invited the EU not to enforce its own rules, raises the suspicion that he would like to the EU to dissolve itself altogether !

THE SINGLE MARKET

We must defend the integrity of the EU Single Market, at the borders of the European Union and throughout its territory. 

Ireland must be seen to be, fully compliant with EU Single Market rules. Otherwise Ireland’s geographic position will be used against it by competitors for the investment.

The EU Single Market is not complete. There is much more to do.

An April 2019 Study “Mapping the Cost of non Europe” estimated that 

    + completing the  classic single market would add  713 billion euros to the EU economy. 

    + completing Economic and Monetary Union would add a further 322 billion, and    

    + completing a digital single market a further  178 billion euros. 

 A more integrated energy market would save a further 231 billion and a more integrated EU approach to fighting organised crime would be worth 82 billion.

 Cross border VAT fraud is costing 40 billion.

These are some of the reasons why we must complete the Single Market.

Services account for three quarters of EU GDP. 

 But  we have been very slow in creating a single EU market for services. 

 In the field of Services, only one legislative proposal had been adopted during the term of the outgoing Commission, a proportionality test for new regulations on professions.

 All other proposals are blocked.

 I think that a major obstacle is vested interests in national or regional governments, who do not want to give up power.

By completing the Single Market, the EU can show that it has much more to offer to the world than a post Brexit Britain.

 The European “Single Market on the Liffey” can and will deliver more consumer benefits than “Singapore on  the Thames” .

To help complete the Single Market, Ireland should be open to qualified majority voting on energy and climate matters. 

We should also be open to carefully defined individual amendments to the EU Treaties if they can be shown to the public to deliver real benefits.

A LEVEL PLAYING FIELD

The existing Withdrawal Agreement protects UK environmental, product and labour standards, in a way that a mere Trade Agreement will never do.

 In any trade negotiation with a post Brexit Britain, maintaining a level  competitive playing field will be vital.

 No subsidies, no cartels, and no undercutting of EU standards must be insisted upon.

A CLIMATE TARIFF?

President Elect Von der Leyen has suggested a border Adjustment tax to penalise imports that have been produced at the cost of excessive carbon emissions. 

The intellectual argument for such a tax is a good one, but it will be provocative in the present fraught international trade atmosphere.

 Perhaps an adjustment of the VAT rate to take account of the emissions intensity of various products could be designed. It could be applied to domestic as well as imported products and services of all kinds.

 It would be more comprehensive than a Carbon Tax and would put the EU in the lead in the battle against climate change.

THE RISE OF CHINA

China is returning to the dominant position it held in the world economy in the two millennia up to 1800.

 It is doing this on the strength of its human capital, not its physical capital. It is educating more engineers that the US and the EU combined.

 It is doing it through its competitive and  innovative firms, not through its monopolistic state enterprises.

 It is ahead of everyone in 5G communications, at the time the world economy is becoming ever more digital.

 If the US thinks it can use trade policy to arrest Chinese development, it is probably making a mistake. 

But the US is right to insist on fair competition. China must be treated in the WTO as a developed country, and not get concessions intended for much poorer countries.

In its response to the Chinese challenge, the EU should maintain its robust competition policy and should not try to pick industrial winners from Brussels.

Europe would be much better placed to defend its own interests, and to act as a balancing power in the world, if the euro functioned as a global reserve currency.

 To achieve that, we need to create a Capital Markets Union and complete the Banking Union. 

The Eurozone must have a capacity to cope with localized shocks and to prevent contagion.  We need viable proposals for a eurozone wide reinsurance of bank deposits, and eurozone wide reinsurance of the unemployment  benefit systems of member states..

CYBERSECURITY

Global trade disputes are becoming increasing entangled with arguments about security. 

The EU is not a military power. But it does have interests to defend, notably in the field of cybersecurity.

 Ireland’s island status may have inured it against conventional military threats, but  it offers no protection against cyber attacks. 

The European Network for Information Security should have active Irish participation.

 The EU must develop joint capabilities to counter cyber attacks.

THE RULE OF LAW

There is an erosion of the basic tenets of the rule of law in some EU member states.

This takes two forms…a weakening of the separation between the judiciary and the executive, and a weakening in the effective administration of justice.

 We cannot contemplate taking in new member states until we are satisfied we can have full confidence in the rule of law in all existing members.

 The Commission must be non partisan and objective in pursuing member states that are falling below acceptable standards in respect of the rule of law.

The European Court of Justice is the place where the rule of law can best be vindicated.

 The Commissioner for Justice should show neither fear nor favour in making proposals for remedial action. 

He should have the sole right to make such proposals, should do so publicly, and while the College should be free not to accept his proposal, it should have to publish its reasons. 

EU WIDE DEMOCRACY

 It is over 40 years since the first European Parliament election.

 While the  EP elections are hotly contested, the contests are often really about national issues.

 A genuine EU wide debate does not take place, because the elections are confined within in national constituencies. An EU “polis” or public opinion has not been created.

In her political guidelines for the 2019-2024 Commission, President elect Von der Leyen commits to strengthening EU democracy. 

She says she wants to strengthen the Spitzenkandidat system, and to address the issue of transnational lists in European Elections.  I hope she is true to her word.

My own view is that the President of the Commission should be elected separately from the Parliament, using a system of proportional representation (PR). 

 The Spitdenkandidat system failed for many reasons, not least the fact that it was to be a winner take all contest without any proportional element to reflect the preferences of the whole electorate.

It will be possible to introduce transnational list without reducing the number of MEPs elected on a national basis. So it should be done.

I have doubts about the idea of giving a right of legislative initiate to the European Parliament because it will upset the institutional balance of the EU

CONCLUSION

As you can see, we have a very busy few years in front of us in the EU.

As Greece was for many years, Ireland may soon be cut off  from the rest of the EU by the territory of a non member. We will be a frontier state, never a comfortable position in international relations. 

We will need to work harder than ever before to overcome the barriers that may be placed in our way.

 We will need our network of friends around  the world more than ever before, and that is why the Brussels branch of the IIEA will be more important than ever before!

We will also need to be assertive in protecting our interests, but to do so in the context of a strong pro European philosophy.

Thank you!

BREXIT AND THE BELFAST AGREEMENT

…….DIVERGENCE vs CONVERGENCE

Brexit is about divergence between the two parts of Ireland, between Ireland and Britain, and between Britain and Europe.

 The debate about Brexit has also contributed to increased policy divergence between the representatives of the two traditional communities in Northern Ireland. It has deepened the divide. Thankfully, the Alliance Party and its Leader, Naomi Long MEP, are providing a voice for those who want a new way forward, freed from the constraining categories of the past.

 Whereas Brexit is about divergence, the Belfast Agreement of 1998, negotiated so painstakingly between the Irish and UK governments, and between the parties in Northern Ireland, was about convergence…….  convergence between the two communities in Northern Ireland, convergence between the two parts of Ireland, and convergence between Ireland and Britain.

 It was supported at the time by both the EU and the US and endorsed by referenda in both parts of Ireland. Ireland changed its constitution by referendum in 1998 to accommodate it, no minor matter.

Brexit arose from a referendum in the UK in 2016, in which the larger populations in England and Wales were able to outvote the smaller populations in Scotland and Northern Ireland, who favoured remain.

One of the fundaments of democracy is that governance should have the consent of the governed. One of the fundaments of a successful of different nations, as the EU has shown, is respect for minorities and smaller nations.

 Brexit had the consent of the voters of England and Wales, in the 2016 Referendum, but it did not have the consent of the voters of Northern Ireland, nor of Scotland. 

It could be said that Brexit, no matter what way it may now  be implemented, will change the status of Northern Ireland, and will do so without the consent of the people living in Northern Ireland.

WHAT IS THE ESSENCE OF SOVEREIGNTY?

 In his recent letter to his fellow EU Heads of Government, Prime Minister Johnson claimed that the Irish backstop is inconsistent with the “sovereignty” of the UK as a state. 

 All international agreements impinge on sovereignty. 

But the sovereignty of a state primarily consists in a state having a monopoly on the use of force within its territory. The backstop does not diminish UK sovereignty in that understanding of sovereignty. 

By joining the EU in 1973, the UK agreed to pool other aspects of its rule making authority in some other specified areas of life, with other EU member states. It entered into a succession of EU Treaties on that basis.

 While  it was always open  in international law to the UK , to renounce these Treaty commitments, as it is now doing,  the UK was, and is, obliged to take proper account of the effect of the effect of such a decision on its fellow member states of the EU.

After all, these other EU states, including Ireland, acted  in good faith on the basis that these shared Treaty commitments would continue to be honoured by the UK.  Ireland acted on that legitimate assumption when it changed its constitution to facilitate the Belfast Agreement it made with the UK in 1998. 

As it is the UK that is taking the initiative to renounce the EU Treaties it has with Ireland and other EU states, it is for the UK to take the primary responsibility for finding a way to reconcile that initiative with other Treaty commitments of the UK , notably  its legal Agreement made in Belfast in 1998.That is how international relations work and why renouncing Treaty commitments is a rare occurrence. 

Unfortunately, the UK never faced up to that responsibility.

 And it was the EU side that had to come up with a proposal to do this, the so called Irish backstop.

 The EU would never have had to do this if the UK had faced up openly to its responsibilities under the Belfast Agreement, when it started to promote the idea of Brexit . That was a deep failure of statecraft on the part of the UK, and of the UK alone.

THE IMPORTANCE OF RULES IN INTERNATIONAL COMMERCE

Adhering to Treaty commitments is usually in a state’s self interest. 

This is because, in international commerce, rules are important. That is a commercial and political reality.

 Without shared rules or understandings, commerce would be impossible.

 The EU is an engine for

  •  making rules democratically,
  •  enforcing them consistently and
  •  interpreting them uniformly.

 I do not think these realities of international commerce were explained to the UK electorate by their leaders over the last 40 years, which is why the English and Welsh electorate fell for the Brexit delusion.. 

WHAT IS  PRIME MINISTER JOHNSON OFFERING ON THE UNIQUE CHALLENGES FACING IRELAND AS A RESULT OF BREXIT?

Mr Johnson’s letter to his fellow EU leaders said

“ Ireland is the UK’s closest neighbour, with whom we will continue to share uniquely deep ties, a land border, the Common Travel Area, and much else besides. We remain, as we have always been, committed to working with Ireland on the peace process, and to furthering Northern Ireland’s security and prosperity. We recognise the unique challenges the outcome of the referendum poses for Ireland, and want to find solutions to the border which work for all.”

He continued

“ I want to re-emphasis the commitment of this Government to peace in Northern Ireland. The Belfast (Good Friday) Agreement, as well as being an agreement between the UK and Ireland, is a historic agreement between two traditions in Northern Ireland, and we are unconditionally committed to the spirit and letter of our obligations under it in all circumstances – whether there is a deal with the EU or not.”

These are fine words. But they lack specific content. 

So far Mr Johnson’s government has not spelled  out , in detail and on paper

+ what  these “unique challenges” are,

+ how it believes these can be met and

+ what his government  is prepared to do to that end.

Any ideas the UK may now  have are being held back as a negotiating tactic. 

That is NOT a good faith approach to international relations.

THE KEY PARAGRAPH IN PRIME MINISTER JOHNSON’S LETTER

Later in his letter, Mr Johnson says 

“When the UK leaves the EU and after any transition period, we will leave the single market and the customs union. Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.”

This is the most revealing paragraph of the entire letter.

The whole point of Brexit, according to Mr Johnson, is to “diverge” from EU standards on environment, product and labour standards.

 This  would mean, in the absence of a backstop, Northern Ireland’s environment, product, and labour standards  will continuously, and progressively over time, diverge further and further away from those of Ireland (as a member of the EU). 

 Although it has been promoting Brexit for three years now, the UK government has yet to say which EU standards it wants to diverge from, and why it wishes to do so.

Divergence, for its own sake, is what the UK   now seems to want, according to Mr Johnson. That was not the approach of the May government. 

The more regulatory divergence there is between the two parts of Ireland, the more border controls or other barriers there will have to be. The more the UK rules diverge, the bigger the barriers will have to be.

 On day one, relatively few border controls may be necessary. But, by day one thousand and one, after the deliberate divergence had been done by the UK, far more border controls will be necessary.

Nobody knows what rules this, or a future UK, government will change and in what direction. That is why the issue of the impact of Brexit on the island of Ireland HAS to be settled upfront, in the Withdrawal Treaty. Hence the backstop.

Given that the Good Friday Agreement is all about convergence (not divergence) between the two parts of Ireland, and between Britain and Ireland, there is a head on contradiction between  Mr Johnson’s proclaimed commitment to the Belfast Agreement , and his commitment that the UK progressively and intentionally diverging from EU standards.

That is the core problem, and Mr Johnson’s letter makes this clear, “divergence” is the whole point of Brexit and  according to Mr Johnson this divergence is “central to our future (British) democracy”. 

Prime Minister Johnson said

“ the backstop risks weakening the delicate balance embodied in the Belfast (Good Friday) Agreement. The historic compromise in Northern Ireland is based upon a carefully negotiated balance between both traditions in Northern Ireland, grounded in agreement, consent, and respect for minority rights”

He is right to say that the Belfast Agreement is a carefully negotiated balance.

 But it is Brexit ,of its very nature,  that upsets that balance. 

Brexit, as Mr Johnson’s letter says, is about divergence. 

If there is to be divergence between jurisdictions, there must be border controls or barriers of some kind between those jurisdictions.

Mr Johnson’s letter refers to

 “respect for minority rights” and to “consent”

 The majority of people in Northern Ireland voted against Brexit, but their wishes are to ignored because a majority in the wider UK voted for Brexit..

 The people of Northern Ireland have not “consented” to Brexit, or to the new barriers, controls, and costly bureaucracy that flow from it.

Mr Johnson says

“The Belfast (Good Friday) Agreement neither depends upon nor requires a particular customs or regulatory regime.“

It is true that the Agreement does not say this in terms.

 But, at the time the Agreement was negotiated, both the UK and Ireland were in the same customs and regulatory regime.

 That was taken for granted, and did not have to made explicit in the Agreement.

 If Brexit was a possibility in 1998, it would have been a UK responsibility to have brought  up the compatibility of the Agreement with a possible UK EU departure. 

There is no evidence that either the UK government, or the Conservative official opposition, raised this possibility in 1998.

Prime Minister Johnson goes on

“The broader commitments in the Agreement, including to parity of esteem, partnership, democracy and to peaceful means of resolving differences, can be met if we explore solutions other than the backstop.”

This is a strangely vague and dreamy sentiment for the champion of Brexit  to express, when we are barely a month away from the 31 October deadline. There is no solid proposal, just possibilities and explorations. Not enough at this stage from a responsible sovereign government.

I now need to pose the following question.

DOES MR JOHNSON WANT TO BREAK UP THE EU SINGLE MARKET?

Mr Johnson’s letter says

“This Government will not put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. We would be happy to accept a legally binding commitment to this effect and hope that the EU would do likewise.”

This reads to me like a straightforward attempt by a UK Prime Minister to destroy the EU Single Market. 

He seems to want the EU to legally bind itself not to enforce its rules at its borders.

He   thus seems to want some sort of “no man’s land” in the vicinity of the Irish border where no controls or checks would apply.

 This is an open invitation to criminal and subversive organisations, who have financed themselves in the past by smuggling.

 Given that one such, smuggling financed , criminal organisation attempted to murder one of his predecessors as Conservative leader, one would be forgiven for thinking that Boris Johnson has not studied the history of his party closely enough.

Controls on the goods and services ,that may cross its borders, are essential to the EU Single Market. 

Such controls are especially necessary because

 +  the UK has decided to make trade deals, with different rates of tariffs, or different quality standards for goods and services to the ones applied by EU, once it has left, and

+  Prime Minister Johnson has said the UK will deliberately  and increasingly diverge from EU environmental , product, and labour standards.

 The EU will not be able to continue to lead the world in, for example, setting higher standards to protect the climate, and the privacy of the data of its citizens, if it were to allow its nearest neighbour, and recently departed member, to undercut its standards with impunity.

The requirements to be fulfilled by Ireland, as part of the EU Customs territory, at its borders and its ports, are set out in immense detail in the EU Customs Code. The Code was adopted in October 1992 by Council Regulation 2913/92

 It requires the uniform application of the Code across the entire EU territory.

The fact that Mr Johnson has invited the EU not to enforce its own rules, raises the suspicion that he would like to the EU to dissolve itself altogether !

John Bruton, former Taoiseach, former EU Ambassador and former vice President of the EPP, speaking at a cross party hearing, organised by Naomi Long MEP, in the European Parliament  on 25 September at 11 am

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