Friday 10 November 2017

Go - No Go --- Show - No Show


The sixth round of Brexit negotiations began on 9 November and finished the day after, with one of the customary Davis-Barnier press conferences. Press reports said the UK side saw it as a "stock take" which, given how little was reported after Round 5 (four weeks before, with the October summit a week later), and the fact that little seems to have been done at the first set of meetings other than to agree the schedule of talks which Davis immediately started to work against, makes you wonder who's taking this seriously.

More importantly, the calendar issued by Barnier leaves no room for a Round 7 in the time before the December EU summit, at which an entirely new assessment of progress is apparently expected (by some) which will result in moving talks on to trade (according to the UK cabinet) or phase 2 talks on the framework for a future UK-EU relationship and perhaps a transitional period (according to everybody else). Obviously work is going on behind the scenes, but who can be surprised at the confusion among observers about whether any progress is actually being made?

Stop press: Press conference

Brexit platitudes - 27p per 100g

The post-talks press conference came just before lunch (priorities?) which meant the negotiators had basically had 24 hours for their "stock take". Most of it was a repeat of platitudes first aired several months ago. The main points of substance were:

  • UK government has two weeks to "clarify" its approach to "money" to make it possible to consider that "sufficient progress" has been made by the time 14 December rolls around (a few extra days might be available if "sincere and real" proposals have been made in a fortnight, but EU wheels grind slow)
  • Progress has been made on citizens' rights (see below) and technical teams continue to work between negotiating sessions
  • Barnier thought it necessary to say that the two sides had still to achieve the same reading of the Good Friday Agreement and the Common Travel Agreement.
  • There are about 1000 international agreements that the UK is going to have to unpick.
  • Neither May's declaration that she would put "exit day" into the EU withdrawal bill nor John Kerr's reminder that Article 50 notification can be withdrawn at any time impinged on the questioning.
  • Davis is still talking as if this process will produce a trade agreement. Barnier isn't.
  • Davis explicitly rejected any idea of a "new border" between Northern Ireland and Great Britain, and thereby a recent proposal from an EU working party and others that NI should stay in both the customs union and the internal market.
  • One press questioner (and several commentators I've seen since) asked "What happened to accelerating the talks?"






Apply here (TBA)

One thing that did emerge from the UK government recently was entitled, in friendly capitals, "TECHNICAL NOTE: CITIZENS’ RIGHTS - ADMINISTRATIVE PROCEDURES IN THE UK", a description of the process to be used by EU expats in the UK to apply for the proposed "settled status".  Reviews varied. Steve Peers, Professor of EU, Human Rights and World Trade Law at Essex University, called it "Overall a sensible document that someone put thought into" but added "fortunately the direness of [government] ministers doesn't extend to civil service".

Nick Gutteridge of the Express reviewed it in detail. He noted that EU citizens in the UK should be able to apply for "settled status" as soon as phase 1 of the Article 50 talks is complete, that it would be a simple online system, costing no more than a British passport, with applications checked against existing government data such as tax records (as far as possible). Unsurprisingly, there's no mention of the European Court of Justice but there is a strong statement that the rights will be embodied in UK law.

Gutteridge too concludes that it's "a decent effort. UK side has clearly taken on board a number of EU concerns and modified its proposals accordingly, something that should be appreciated in Brussels". I'd note, though, that it's a description of an as yet undesigned software system based on still to be negotiated law.

A less positive review comes from Professor Stijn Smismans of Cardiff University, beginning "EU, don't be fooled; your citizens are not protected" and going on to call it "a procedure to deprive EU citizens of current rights offering 'settled status' which is inferior to Permanent Residence" and noting that current holders of permanent residence "would still have to apply AGAIN". The series of tweets is worth reading in full:


Now you see them...

An important no-show, however, was the now famous collection of 58 sectoral impact assessments for Brexit. David Davis had boasted many times of the "excruciating detail" DExEU's analysis was going into, but his ministers admitted that they had not read the assessments in detail and that the prime minister would only have seen summaries. Interest started to gather, and Scottish MPs were particularly sparked by David Mundell, who promised that "UK Government analysis of how Brexit will impact the Scottish economy [would] be shared with Holyrood ministers despite Whitehall refusing to release it publicly"... and then confirmed that "there is no one specific report into the impact of Brexit on Scotland".





Keir Starmer had dug through his yellowing rule book and found a "foolproof" parliamentary device which would actually force ministers to produce all these documents. The debate was on 1 November, but the government decided not to vote, thus handing the victory to the opposition, and none of the Tories looked uncomfortable enough for this to be a real win. John Bercow told them they'd better produce something PDQ, then on the following Monday, when nothing had appeared, he told DExEU it had better come up with something, even if just a plan, by end of business on Tuesday 7 November. Which they duly did. A plan. To assemble whatever they've got. And there is a lot of detail but it's not compiled into discrete documents for the 58 sectors Davis identified in an answer to a Lords question. And there definitely isn't one for Scotland.




I've never said there's no work being done, but it was never intended for public consumption, despite May telling the Commons on 3 February "I recognise how important it is to provide business, the public sector, and everybody with as much certainty as possible as we move through the process".

No return to the borders of the past - somehow

In the week before all this excitement the Commons Northern Ireland select committee hosted officials from Switzerland and Norway to find out how a relatively frictionless border between an EU country and a non-EU country might work.

The UK proposal for the Northern Ireland border with the Republic of Ireland is summed up by the slogan No return to the borders of the past, by which you have to assume they mean the border (singular) imposed during the Troubles and made unnecessary by the Good Friday Agreement and both countries' membership of the EU.

My defining memory so far of Northern Ireland in the time of Brexit is the EU Parliament's debate in April 2017 of a resolution on the vast area of policy affected by UK withdrawal, but containing the words "the European Parliament is especially concerned at the consequences of the United Kingdom’s withdrawal from the European Union for Northern Ireland and its future relations with Ireland; whereas in that respect it is crucial to safeguard peace and therefore to preserve the Good Friday Agreement in all its parts, recalling that it was brokered with the active participation of the Union".

During several hours of debate many aspects of the UK-EU relationship came up, coupled in many cases with expressions of regret at the result of the 2016 referendum. Unsurprisingly, Northern Ireland was mentioned by MEPs from north and south of the border but I heard a Romanian academic and representatives from many other member states expressing concern that Ireland would be disadvantaged or - particularly - that the Good Friday Agreement must be protected and prioritised.

Not a single person from Great Britain - England, Wales or Scotland - made any mention of the subject.


I turn to a Guardian podcast (Is a frictionless Irish border 'magical thinking'?) to summarise the questions and possible answers, and an Irish News article (Invisible border can be maintained, Swiss official tells MPs) to summarise the committee session.

The problem (though we have only just made it one) is that people treat the island effectively as a single country for most non-political purposes, and Brexit will and must make the border significant again. At present:

  • Anyone driving from Dundalk to Monaghan in the south crosses into Northern Ireland along the way.
  • 30-40,000 people cross one way or the other every day for work, education or other purposes.
  • There are cross-border supply chains, with milk products the simplest example - milk, cheese-making, processing, packaging and sales might be on either side of the border, just a few tens of miles of distance (if that) and currently under the same legal jurisdiction.
  • There are 177 recognised crossing points (many obviously pretty minor), 110 million person crossings per year and a lot of properties sit on both sides of the border.
David Davis summarises his job in this area as: "At the moment there is a border there but it's invisible and if we achieve an outcome, as we hope to, that maintains tariff-free trade, then retaining an invisible border would be relatively easy... But if we end up with a tariff arrangement then we've got a real problem and dealing with that is difficult". A free trade agreement might result in no tariffs, but the government intends to leave the customs union as well, so there simply will be different legal regimes on either side of the border. They will start off identical or very similar, but could vary at any moment following "exit day" so checks of some kind will be required immediately.

UK proposals for handling the border, and the Good Friday Agreement are presented in a position paper which has been dismissed by some on the EU27 side as "magical thinking". May proposes that there must be no structures at the border - no checkpoints, inspection sheds, lorry parks - and no technology, no cameras and therefore no number plate recognition. Technology elsewhere, to handle notifications of movements of goods etc, is certainly countenanced, indeed relied on more than is convincing.

The UK proposes to take full responsibility for the border (but there are two sides to a border; the EU would require Ireland to police their side in one way or another). It's even proposed that the UK could somehow take responsibility for collecting EU customs duties (which we haven't demonstrated we can do while still a member). Finally, the UK government holds that "Northern Ireland’s constitutional status is a matter for the people of Northern Ireland alone to determine" while Ireland stresses that it is co-guarantor of the Good Friday Agreement and that referendums on both side of the border were required to confirm it.

Since May's negotiating red lines include dropping out of the single market, the customs union and ECJ jurisdiction, the position of the EU27 is that her notion of a "frictionless border" is a fiction. The UK can (try to) do what it likes but Ireland must apply EU rules.

On people, the Davis-Barnier talks have gone some way towards agreeing that the current Common Travel Area should continue, but there are big questions about the interaction of the CTA with EU Freedom of Movement (resulting in an "immigration back door"!!!). May & co want immigration status to be checked by landlords, employers, doctors etc rather than at the border, but NI midwives have refused to act as immigration officers. Finally it must be remembered that the Common Travel Area includes the Channel Islands and the Isle of Man, so others must be consulted, though that seems unlikely to be a major obstacle (unless classification of tax havens has progressed somewhat).

As noted in the Stop Press above, there has been a proposal that Northern Ireland should stay in both single market and customs union, but that would place a pseudo-international border down the Irish Sea and is unacceptable to the DUP and (perhaps therefore) the UK government. The Centre for Cross-Border Studies in Ireland has other ideas, always starting with the Good Friday Agreement, including a fascinating proposal of two overlapping customs unions. Sinn Féin observes that it would all be simpler if the whole UK stayed in single market and customs union, but May & co don't want simplicity; they want fictional frictionlessness. (Sinn Féin also say "the British are not at the races", they don't want to negotiate withdrawal, they only want to talk about the future.)

So, if friction at the border is unavoidable, can Switzerland and Norway show the way to achieving a low-friction border? (Spoiler alert: Yes, but the assumptions around Northern Ireland make that really difficult)

****

You can watch the evidence session here, or read the transcript here. I'll extract a few points where Swiss and Norwegian logic and organisation hit Irish special factors.

Bob Stewart MP (after a very self-satisfied anecdote about "having a house right on the [Swiss-French] border") asked: Can you design a system without physical structures? He was told: "Yes, that is possible... You need common patrols between the United Kingdom and the Republic of Ireland, staffed with the same people and with the common goal of finding irregularities. Secondly, you need an intelligence strategy for what you are looking for. You need control points not at the border but somewhere in the country. You need controls not at the border but with the enterprises. You need a system of some sort of pre-qualification like, for example, the authorised economic operator, and then you need a system for low-risk trade or when you have a trade of always the same kind of stuff".

Ian Paisley MP thought that was fine and dandy. All you need is goodwill and to keep the politics out of it (in Ireland!). And then he asked about terrorism, and discovered that Switzerland depends on a developing system of what sounds like profiling - "key indicators of what to look for when they are confronted with a person. These may relate to behaviour, like not shaking the hand of a woman; they may relate to clothing or mostly to propaganda materials they have with them". Switzerland is "establishing a new law for the prevention of terrorism, where we are trying to find the right indicators and the right amount of controls... it is a risk-based approach that is most helpful; it does not help to control everyone".

Conor McGinn MP observed "if you want to go to County Fermanagh or south Armagh and tell a farmer that he has to declare every time he crosses the border into one bit of land or the other, then you are a better man than me and the best of luck to you with that one" and asked about joint patrolling. He was told "in Basel, we have a common patrol between the Swiss Border Guard and the German Federal Police. It is 10 from each side. There is no commander. There are two staff sergeants of course and their only job is to organise themselves. Do your job: find criminals. That is their job, and they plan together and define their mission. They say, 'Okay, we are working in Switzerland, and then we are working in Germany,' and it is working perfectly. We always have to be together in case something arises, and from a legal perspective, to help people with what they can do".

Sylvia Hermon MP asked "Are any of your borders disputed?" and heard "From time to time, you have to redefine the border because in the Alps the glaciers move a little, but you have common commissions between, for example, Italy or France and Switzerland and they define it. It is mainly on a purely administrative level". She pursued it: "we are not really comparing like with like when we are looking at the border between Northern Ireland and the Republic of Ireland... I was very struck by the emphasis on the common operations—that there were common teams of police officers, and common operations with Germany and, indeed, German police helicopters. Do you really think that would be applicable over a disputed border and we would have helicopters from the Irish Republic flying over the jurisdiction of Northern Ireland or, indeed, British helicopters flying over the jurisdiction of the Republic of Ireland?"

Christian Bock, Director General, Federal Customs Administration (Switzerland) said that was not for him to say, and indeed seemed a bit confused by some of the questions. Both the Swiss witnesses and the Norwegians were talking about systems which have been built up over many years, always intending to come together, as opposed to a negotiation where people are trying to reach an agreement which takes the participants further apart. And still works.

Could British and Irish staff, vehicles and helicopters work cooperatively on each others' territories? Quite possibly, but is Westminster, is Stormont up to even asking? Can customs and other functions work so closely together that they merge their work? Is that the British or Stormont way? Could it be built on potentially diverging animal welfare and food sanitary standards?

Putting it bluntly, some of the Northern Ireland MPs seemed to assume that there would always be smugglers, and that any new system would have to deal with their continuing existence. The UK requirement is not to have cameras at the border while the Swiss and Norwegian systems are built on them They're filming number plates, not people, protest the Swiss, but then they say reassuringly "When you do not see us at the border, it does not mean that we are not there", and they mean cameras, or possibly agents, or possibly informants, only to be greeted with a knowing, parochial assumption that that couldn't work here.

Podcast last word

Interestingly, the "Northern Ireland and Ireland" position paper doesn't mention the Northern Ireland Act 1998 at all.  That act refers to the ECJ, and there's a fear that changing it (using the EU Withdrawal Bill or otherwise?) would be seen as an attack on the Good Friday Agreement.

I wouldn't have started from here

I've collected a lot of material on Northern Ireland along the way, but here are two particular examples, starting with a place called Belleek.



Then, head up a bit from Belleek to find Lough Foyle. The border between the UK and the Republic must cross it - you'd expect a line down the middle somewhere, but no - "Claims over the vast estuary between Co Derry in the north and Co Donegal in the Republic have been made since the island was partitioned almost a century ago" and Northern Ireland Secretary James Brokenshire has reasserted the UK's claim to the whole lough (which would presumably mean a slice of Ireland would be part of the UK, but only at high tide).

Needless to say, the Republic thinks otherwise: "Ireland has never accepted the UK's claim to the whole of Lough Foyle" and Sinn Féin calls the British claim "arrogant and provocative". Having failed to sort the issue out 96 years ago, then again in 1973 when the two countries joined the European Economic Community, and yet again as part of the Good Friday agreement, when "a cross-border body called the Loughs Agency was handed responsibility for the waters", we now have an even more basic border dispute than the arrangements discussed above.

Both sides have said at one time or another that the question shouldn't figure in the withdrawal negotiations, but is the EU really going to accept a corner of its external border remaining undefined?



Saboteurs department

Queues are forming in Westminster as representatives of economic sectors and geographical regions jostle for attention from government ministers and civil servants. Some of them follow the CBI's lead in demanding or pleading for a well defined transition period so that they have a chance of amending their processes by "exit day". Others are effectively pointing out to the government that their business models will suffer or become untenable unless the post-Brexit relationship with the EU is just the same as it is now.

Every company, sector and region has its own special interest and its own worst case scenario, but the port of Grimsby has a particular idea. Whatever agreements are made between UK and EU, "Seafood should be given special free trade status after Brexit to ensure Grimsby’s industry is not damaged". The industry currently "imports 90 per cent of the fish it processes for retailers, restaurants and fish and chip shops" (the UK exports most of the fish we catch and imports most of the fish we eat) and business could be lost to Bremerhaven (Germany) and Boulogne-sur-Mer (France) if the arrangements aren't attractive enough.

It's never that simple.  EU tariffs, which the UK would almost certainly adopt to begin with in the absence of a free trade agreement, seem to be around 8% for unprocessed fish and over 30% for processed fish, which would still have to come over here. And, as ever, tariffs are only part of it. With different customs laws "if seafood is stuck in Calais for two days on its way to us, then that is no good either” said an industry representative. As and when the non-existent impact assessments emerge, look out for No 25 on Fisheries and No 3 on Agriculture, Animal Health and Food and Drink manufacturing. To say nothing about the regulations on animal and food hygiene and phytosanitory certification.

Note: one of the MPs involved in this lobbying was Victoria Atkins, installed as a junior Home Office minister on 9 November as part of the Priti Patel reshuffle. She will have to hold back from any future such exercise.


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