How could this Brexit thing actually happen?

The news sometimes tells us that "we're less than six months away from Brexit", which might still sound like a long time, but there's a lot to be packed into that period. This post attempts to outline the process in the UK, then to fit it in with the way the EU expects to handle it. And finally, what if this finely tuned machine falls apart at some point?

I still think leaving the EU is the wrong thing to do, and that it's being done badly, but hey ho, this is what I think is going on.

It's the law!

The European Union (Withdrawal) Act 2018 has some fiddly rules on how the outcome of Brexit negotiations must be handled (Section 13, pages 14-17 of the PDF version). This part of the bill was fought over for days, between Commons and Lords, in an attempt to craft the famous "meaningful vote". In my estimation May and her whips worked hard to remove most of the "meaning", and as far as possible to keep the process in ministers' hands.

To get the ball rolling, a government minister must present three things to the House of Commons and the House of Lords:

• a statement that agreement has been reached
• a copy of the withdrawal agreement
• a copy of the framework for a future relationship

The next stage is for Parliament to approve the two documents. The Commons has to pass a resolution and the Lords has to debate a motion (the elected house's resolution is more powerful than the Lords' motion, but is still just a Yes/No to the government's proposal, with no consideration of options). Finally another law - a Withdrawal Agreement and Implementation Bill laying out how the withdrawal agreement is to be implemented - must be passed.

If possible, the Commons resolution must be agreed before the EU Parliament votes on approving the withdrawal agreement, which I've heard is a sequence acceptable to the EU27, though there is no such formal requirement in Article 50.

"If push really comes to shove, and they try and push
Chequers through the House of Commons, then I
and my colleagues will vote against it,"

What happens if the Commons doesn't pass this motion, as some of May's loyal followers are still threatening? The government then has 21 days to "make a statement... in writing and published in such manner as the Minister making it considers appropriate". This statement must simply set out how Her Majesty’s Government proposes to proceed after this failure.

Here's one of the contentious points. This statement has to be "considered" by the Commons and the Lords within seven sitting days. The Lords must "take note of it" and the Commons must debate a "motion in neutral terms". This parliamentary language is intended to prevent either house from intruding on the government's plans to proceed. When Dominic Grieve caved in and this language was accepted, there was much debate about whether and how the Commons could intervene nonetheless to prevent a departure with no deal, but nothing is certain at this point.

And what happens if the prime minister decides that no agreement can be reached with the EU? The Act imposes a deadline of 21 January 2019. If, by that time, she concludes that "no agreement in principle can be reached in negotiations under Article 50(2) of the Treaty on European Union," she must make a statement to that effect. The government then has 14 days to produce yet another statement on how it plans to proceed, and a further seven days for the same process of motions which can't be changed, but leave the government to pick up the pieces of its own failure. A similar process, though with slightly different timing, must be followed if by the end of that same day no agreement has actually been reached with the EU (perhaps if it takes the prime minister completely by surprise?).

Any of these statements of failure might in theory lead to a return to the negotiating table or... what?

As far as I can see, the law says nothing about what is to be done if the UK Parliament approves the documents but the EU Parliament doesn't, or the agreement falls at the final hurdle of a vote by the EU Council (without the UK). As we'll see below, either of these developments could occur after the 21 January deadline, though they must be considered unlikely, since the agreement would have been agreed by the Council (with the UK) before going to Westminster, and the EU Parliament will have been kept informed of progress.

The enormous amount of work required if there's no deal is outside the scope of this post (and probably the scope of human consideration).

Is there time?

The formally agreed timetable still assumes that the final withdrawal agreement (and whatever level of framework for the future has been produced) will be considered by the October EU Council summit, but it's fairly generally assumed that it won't be ready by that point, and that a special meeting will be required in November. EU Council president Donald Tusk has told us he's happy to organise it. I've pencilled in 13 November because it's the only date I've heard, but talk around the recent Salzburg meeting was that it would probably be a couple of days later [Update 18 October 2018: the emergency summit has not been scheduled because the October summit (or rather the negotiations leading up to it) have achieved very little.].

Sources: 2018 plenary sessions. 2019 plenary sessions. council meetings

Let's assume, therefore, that a Brexit agreement is available by 19 November and that everybody is still aiming for 29 March as the end date.

How much time would it take the Commons to consider something like a 150-page withdrawal agreement - this is an international treaty document - and a 20-page political statement on the future UK-EU relationship? The latter would not have treaty status, but could be the thing most of our MPs, media and fellow citizens are watching out for. How many committees would demand a period for consideration, to inform the eventual votes? The government would want to allocate as little time as possible, inviting the minimum intervention by elected members, but any MP who wouldn't object to such cavalier behaviour should be ashamed of him- or herself.

Assuming for the moment that the UK Parliament will be at it hammer and tongs when an agreement arrives (in fact, of course, the poor little mites will have to take their usual holidays - a few days off in November, three weeks for Christmas and never working on Fridays) let's look at what will be going on in the EU.

If the EU Parliament does refrain from discussing the agreement before the UK Parliament has finished with it (and can we really imagine that no parliamentary committee will start early, arguing that it's a plenary session which will make the final decision?) we could be well into 2019 before detailed consideration begins. Of course the MEPs have been kept informed of progress in negotiations by frequent updates to party group leaders and other briefings by Barnier (unlike our own MPs, many of whom don't seem to have the faintest idea of what's going on - job done, says May).

A Reuters report tells us how the EU Parliament sees the approaching buffers: "A European Parliament plenary session on 11-14 March 2019 will be the last possible in order to endorse any Brexit deal on time, Polish MEP Danuta Hubner, head of the European parliament's constitutional affairs committee, told fellow MEPs Monday... The parliament's meeting 25-28 March would be too late because the Council also must approve it, she said. The UK is set to leave the EU on 29 March."

And when it's all signed off, Michel Barnier can take a holiday or retire, because that will be his job done. The Commission will then take over in the normal way if there's a trade deal to be negotiated.

If it doesn't work

Customs post at Killeen/Killean Co Amagh, 1960s
via @OldIrelandPics on Twitter

That's all fine if everything goes according to plan, but there's still disagreement (and worse) now among the governing party, mostly about the framework for the future and its possible implications for the Irish border section of the withdrawal agreement. I have my doubts that more than a handful of MPs have given a thought to the other remaining issues discussed in my previous post. I call that irresponsible, but it's all you can expect on this question.

There's also talk of elections and referendums, following months of work by the People's Vote campaign and a Labour conference where Brexit was under the spotlight more than antisemitism for a change. The passage in Jeremy Corbyn's conference speech which offered to support or take over May's negotiations has attracted a lot of attention:

"But let me also reach out to the Prime Minister, who is currently doing the negotiating.
"Brexit is about the future of our country and our vital interests. It is not about leadership squabbles or parliamentary posturing. If you deliver a deal that includes a customs union and no hard border in Ireland, if you protect jobs, people’s rights at work and environmental and consumer standards - then we will support that sensible deal. A deal that would be backed by most of the business world and trade unions too.
"But if you can’t negotiate that deal then you need to make way for a party that can."

Those, including some 150 constituency Labour parties, who worked to ensure that the possibility of a further vote was included in the motion (and will be disappointed that the possibility of a Remain option in that vote wasn't explicitly included) will fear that Corbyn is ready to ignore that option, but a different kind of interest is being shown elsewhere.

Jeremy Corbyn’s #Brexit announcement will be read with interest in EU. Angela Merkel understood to believe #Chequers proposal on common rule book for goods could work if UK joined a customs union @BBCNewsnight

— Nicholas Watt (@nicholaswatt) September 26, 2018

If Corbyn managed to contribute (most of) the Labour vote in the Commons to support (most of) May's MPs to approve "her deal" the timetable above would do, but much of the discussion around the Labour conference was on their demand for a general election, or "campaigning for a public vote" on "the final Brexit deal" if that doesn't work. The only part most media outlets quoted was the paragraph on a referendum, but the motion which was passed on Tuesday was 570 words long and I didn't see anybody pick up the sentence "Conference believes we need a relationship with the EU that guarantees full participation in the Single Market".

An election or referendum might come out of any of the ways the process might fail to achieve an agreement by 21 January or in later chaos (May is determined not to go there, but who knows what the atmosphere might be by then?) and you can't do either of those in a few days.

Last year's snap election took place seven weeks after the announcement, and it couldn't be squeezed much more than that. Of course there's a body of law governing an election, but each referendum needs its own new law. How much backing would there be behind a decision to go that way? How much time would it take to get a bill through and agree a question with the electoral commission?

There would be calls to extend the electorate to include 16-17-year-olds, British expats absent for more than 15 years (as promised by Cameron in 2015) and EU27 citizens; or to restrict it further by removing Commonwealth and Irish citizens from the roll. The electoral commission would request a six month period between enactment and vote, and the commission itself needs a major overhaul with much stronger powers, as shown by the law-breaking during the last referendum campaign. Most of these demands would almost certainly be refused, but even so it would take quite a time.

Whether for an election or a referendum (or indeed a request to buy a little more time for negotiations that are nearly complete) the Article 50 period would have to be extended. Who would make the request? That would depend on the state of chaos at the time, but it would presumably be whoever was prime minister by then. Replacing May would take a couple of months too, unless - say - her government resigned and "another party leader" took over without an election, or this "emergency" forced the Conservative party to bypass the rules even more than it did to select May herself. It would also be necessary to amend the EU Withdrawal Act, which currently defines "exit day" as 29 March.

The current EU27 negotiating directives - the source of Michel Barnier's mandate and the special competence which allows him to produce an agreement which doesn't need ratification by the 30-ish national and regional governments - set a date of "at the latest 30 March 2019 at 00:00 (Brussels  time)" which would presumably have to change too. 

The next elections to the EU Parliament will take place between 23 May and 26 May, so the amount of time by which the Article 50 process could "easily" be extended is pretty limited. There is no plenary session of the parliament planned until July and it would be a new Parliament with at least some new members, so picking the Brexit process up again would be quite a task. There would also be a new commission, with Jean-Claude Juncker's replacement as president newly (indirectly) elected too.

Everybody is currently working on the assumption that the UK will no longer be a member state by May, and there are therefore 73 seats in the Parliament to be distributed among other members. An Irish border question which doesn't have to be dealt with in a withdrawal agreement is how the Republic will deal with their extra two seats. It was announced on Monday that one would go to the Dublin constituency and one to the Southern Constituency, with a couple of counties "moving south" to balance the numbers.

The new Commission president will not be Michel Barnier, we can be sure  of that. By coincidence an announcement from Mr Barnier came out today to the effect that it is his "duty and responsibility to continue the #Brexit negotiations right to the end" and he will therefore not be running for selection as the European People's Party lead campaigner in the elections.

In the event that the Brexit saga ended with a referendum which chose to Remain, and the Article 50 notification was revoked (assuming that is legally possible) we'd never have left and we'd simply remain a member of the EU under our current terms (though with far less good will). But not only would the UK have no MEPs at that point, there wouldn't actually be places in the Parliament to accommodate any new ones. Also, an aspect of the EU (Withdrawal) Act that I only noticed recently is that, though it repeals the European Communities Act 1972 (the fundamental law which recognises EU treaties and law) only on Brexit day, other laws were repealed on the day it was enacted, and one of those was the Act which makes the holding of elections to the EU Parliament legal.

This Brexit thing could continue being a mess far longer than anyone thought.

What's the deal?

The People's Vote campaign wants a "People's Vote on the final Brexit deal". Labour's new composited motion for their conference wants to "put that deal to the public". What "deal" are they talking about?

What "deal" are May, Raab & co negotiating at the moment? There's endless talk of a "Canada deal" or a "Chequers deal" or "no deal" but the only output actually described in Article 50 of the Treaty on European Union is "an agreement... setting out the arrangements for... withdrawal, taking account of the framework for [the withdrawing member state's] future relationship with the Union".

During negotiations that "framework for [a] future relationship" has been elevated to the status of a major document. May and Davis originally proposed to conduct full trade negotiations in parallel with talks on the terms of withdrawal, but Michel Barnier had no mandate to do so. Proper trade negotiations can only be conducted with a third country, and therefore after Brexit itself. Then May called an unnecessary election, lost her majority, and gave up her grand plan on day 1.

Even so, all the talk in politics and the media, in Labour as well as the Tories, is now of trade deals, to the extent that I fully expect that a majority of the population believes that is what we're expecting to see by 29 March 2019.

****

A recent report by the Institute for Government lays out what has been achieved and what has still to be achieved, and one of the main points about the "future framework" is that "there is currently no public statement of what this framework will look like, and how much detail will go into it". Barnier suggests 15-20 pages, as opposed to the withdrawal agreement, whose draft PDF is currently 130.

The IfG's report has a number of helpful charts and tables, of which I'll use just one. I advise you to look at the original to read it properly.

Half the main topics of the withdrawal agreement are considered complete (though EU expats in this country and British expats in the EU27 are not in unanimous agreement with that claim for "citizen's rights"). Then we have two groups of topics on which progress is being made (I'm sure the future of Gibraltar and the military bases on Cyprus will be a doddle) and the big problem of the Irish border (or as Andrew Maxwell the Irish comedian observed recently to loud applause from a London audience, the British border in Ireland).

The question of the future relationship intervenes strongly here. The idea of a backstop was introduced in the joint progress report agreed in December 2017. If you assume, as most people do, that the future relationship will not be defined, let alone agreed, by the moment of Brexit, some arrangement is needed to ensure that people and goods can continue crossing the border in both directions until a final (assumed to be superior) agreement is reached.

Barnier presented a legal definition of a backstop which was quickly rejected in March 2018. May protested that it effectively drew a border between Great Britain and Northern Ireland - down the Irish Sea - with its assumption that no customs or sanitary checks would be performed at the line between Northern Ireland and the Republic, but that they would be done on either side of the water.

The Chequers proposal emerged in part to solve this problem, imagining that the final relationship could be implemented before the end of transition (when the EU asks the rest of the world to pretend the UK is still a member state, when we obey the rules like a member state, but when we play no part in the decision-making), which is 1 January 2021. But the proposal is unacceptable to the EU27, since it involves cherry picking parts of the single market and expecting the EU to allow a third country to work as if it is in the same customs area without submitting to the full legal structures that maintain the customs union.

Various other ideas have been proposed for the Irish border, but they all essentially assume a final relationship, whereas the EU27 and the joint report May & Davis signed up to assume that something is required to cover the time between Brexit, or rather the end of transition, and an actual trade agreement. That something is the backstop, and Barnier has been tweaking it - "de-dramatising" it, in the negotiators' parlance - but May has continued to reject it because of that notional line down the Irish Sea.

****

And so we arrive at Salzburg, where British politics and much of the British media judge that May was humiliated - Donald Tusk told her "Chequers will not work". In fact what happened was that May was told to her face what EU leaders have been telling the world for months, though they were being "gentle" (as reported in a former British trade negotiator's discussion of May's statement the day afterwards).

This next section is disingenuous. The EU has been sending signals about why Chequers proposals are unacceptable since the day of their publication. But were trying to be gentle, as they'd been asked to be. Then got angry the UK Gov briefed this was acceptance 5/ pic.twitter.com/S0fdOCJ9mV

— David Henig (@DavidHenigUK) September 21, 2018

Now there's open rebellion in the Conservative party, demands to "chuck Chequers", and yet more new proposals crawling out of the woodwork. With the "200 days to Brexit" mark receding behind us, we're left with the talks at an "impasse" and the clock still ticking loudly. Oh, and the Conservative party conference is days away, and everybody is well aware that May will have to try (again) to unite her warring factions with... a speech. Nobody serious wants No Deal, or at least not in public, so the talks are still the only game in town, and the rules are rather simple:

• If you want a half-decent future relationship with the EU you need a transition period in which to (begin to) negotiate one.
• If you want a transition period you need a withdrawal agreement.
• If you want a withdrawal agreement you need an Irish backstop, and it needs to be fully defined and implementable.

The withdrawal agreement is the only legal document which will come out of the Article 50 process, the only thing that the UK Parliament, the EU Parliament and then the EU Council actually have to vote on, according to the rules in the treaty. And there's a huge amount of work still to do on it. But all eyes are on this wretched "future framework" which hasn't really been started. And all the players and the ones who think they're players want to fill it with Chequers or Canada or Norway (see the Labour motion) or...

And that will be what many MPs think they're really voting on in October (no chance), November (fair chance) or later. The document which will actually kick off the next few decades of British history needs full scrutiny, but "trade deals" will fill the papers. After that, will anybody know what they voted for?

 

A few geeky numbers about referendums and things

People (people like Theresa May and Nigel Farridge) keep telling me that the 2016 referendum was the biggest vote for anything, ever, or the biggest democratic exercise ever. They're right about the first, and wrong about the second, and there's a variety of numbers you should look at.

The 2016 vote for Leave was bigger than any party has received in any general election, and larger than the 1975 vote to stay in the EEC. By just 32,161 votes. The  majority in 2016 was less decisive than in 1975, and the population was rather smaller 43 years ago.

1975 EEC referendum

votes for Stay In: 17,378,581

vote share 67.2%

electorate: 40,086,677

turnout 63.9%

2016 EU referendum

votes for Leave: 17,410,742

vote share: 51.9%

electorate: 46,500,001

turnout: 72.2%

But the 1992 general election was a bigger democratic exercise than either referendum, attracting more votes and a higher turnout from a smaller electorate than in 2016.

1992 general election

votes cast: 33,614,074

turnout: 77.7%

electorate: 43,249,721

2016 referendum

votes cast: 33,551,983

turnout: 72.2%

electorate: 46,500,001

(I've taken the numbers from a variety of sources, from Wikipedia pages on the various votes to information assembled by the House of Commons library.)

Letter to my MP - Deals and No Deals

This morning we saw Dominic Raab announcing in the Telegraph that "Britain will not pay its 'divorce bill' in the event of a no deal". He appeared on the Today programme to make the same point, but the discussion included a statement (from the presenter) that the £39bn payment agreed by the prime minister last December "could be slashed in half in the absence of a comprehensive trade deal".

Yesterday at PMQs Chris Philp asked "When it comes to Brexit, the joint statement of 8 December last year said that 'nothing is agreed until everything is agreed'. Does the Prime Minister agree that this means that the payment of the £39 billion exit payment and the Northern Irish backstop are dependent on agreeing satisfactory final-state trade arrangements?" Mrs May replied (in part) that "we need to have a link between the future relationship and the withdrawal agreement".

In recent months I have heard Suella Braverman try to convince a select committee that the principle "nothing is agreed until everything is agreed" means that the withdrawal agreement which is being negotiated at the moment is conditional on a final trade deal with the EU which is not currently being negotiated.

I could quote other examples, but I hope this selection is enough to demonstrate that the government is taking - at the very least - an ambiguous position.

If we fail to conclude a withdrawal agreement, the financial settlement defined in that agreement falls as well. That much is clear. The EU would try to pursue what we have accepted are commitments freely made, and Mrs May still maintains that "we are a country that honours our obligations", so it could drag on for some time.

But that is apparently not what we are talking about here. Mr Philp refers to "final-state trade arrangements", which can only refer to a full trade agreement (not the political statement on a future relationship which should be delivered along with the withdrawal agreement). Yet he is setting that up as a condition for the payment of any of the money that was agreed last December. Later in his question he refers to "the legally binding withdrawal agreement, which also requires those final-state trade agreements to be fully agreed and implemented by 31 December 2020 in a form acceptable to this House". And Mrs May did not demur.

Even if everything goes according to the current plans there is no guarantee of a trade agreement by the end of 2020 - I can't see the "requirement" that Mr Philp refers to in the Joint Report - and it would be a separate agreement negotiated by different teams on both sides under different law and treaty provisions on both sides. There was no agreement in the Joint Report that any provision of the withdrawal agreement which we are negotiating would be conditional on achievement of a separate agreement which we are not yet negotiating.

On the face of it, these discussions are an attempt to revisit things which have already been agreed, and it has reminded observers of David Davis's statement after last December's EU Council that the Joint Report was 'much more a statement of intent than it was a legally enforceable thing', which he had to "clarify" the day after.

Not only is every word uttered by our representatives watched and noted by negotiators and governments in "Brussels" and every EU27 capital, so too can negotiators and governments in countries which might have an interest in future trade deals with us see what has been said. The Financial Times's legal commentator (and many others, with a professional interest and not) are very worried by this. To quote David Allen Green of the FT (in a series of tweets):

"The UK is proposing to renege on the payments to the EU it has already agreed in principle. This is dangerous madness. As a post-Brexit UK makes its own way in the world, it is crucial that future partners see UK as trustworthy in its promises... And it is because of the UK's propensity to backslide that the EU27 is right to seek solid contractual obligations from UK. Wouldn't you, if you were the EU? A sensible UK government, acting in the national interest, should be making a show of honouring its obligations as it departs EU. This would impress potential trading partners in future trade deals. But we do not have a sensible UK government, acting in the national interest. If the UK were serious about entering into post-Brexit international trade deals then it would be using the exit negotiations as a showcase for how seriously it took international agreements. Instead we offer dappy pantomime while the world watches. And this will hurt the UK in long-term far more than any supposed advantage the UK thinks it is gaining by larking about in the exit talks. Worst possible start to UK's post-Brexit future."

I believe that the government's maintenance of an ambiguous, or even cynical, position goes far wider than a short-term negotiating tactic. It is taken in by those of us watching the news and reading the papers, and by our international partners and our prospective future partners, and it does not look good. Whatever you think of Brexit - and I consider it to be a serious mistake - this approach is short-sighted and likely to be counterproductive.

Letter to my MP - Trade with Africa - the reply

On 28 August I sent an email to my MP, Mary Robinson to ask what I called a couple of simple questions. A reply arrived on 7 September. As far as I can see it fails to address the questions, or indeed the subject matter. Anybody would think she had just read the subject line and asked an assistant to produce a chunk of standard ministry-supplied text.

Here, with the single redaction of my address, is the text of the reply.

Letter to my MP - Trade with Africa

This morning on the Today programme I heard an exchange which prompts a simple question. Here is a brief extract in transcript (I would have done more, but there were so many interruptions that it was hard for an amateur to be accurate).

Sarah Smith: Six of the world's fastest growing economies are in Africa, which means there may be significant economic opportunities there for the UK as we seek to expand our trade relationships outside the European Union. The prime minister has just begun a three day three nation trip to South Africa, Kenya and Nigeria to talk trade and aid, and she's accompanied by the Minister for Africa, Harriet Baldwin. I asked her whether there really was time to negotiate bilateral trade agreements with each African nation we want to do business with after Brexit.

Harriet Baldwin: I think there is scope as we leave the European Union for us to be doing much more in terms of bilateral trade. It's already the case that there's some £30bn worth of trade between the UK and African economies, but given how dynamic, how fast growing these economies are, I'm really excited about the ambition to do much more.

Smith: But many of the African countries we deal with will want to trade on completely different terms. They're particularly annoyed about huge import tariffs that there are on sugar, also on rice, maize and other cereals - 50% on some of these goods. They'll want to renegotiate that. Can we tell them that we're going to eliminate those tariffs on agricultural products?

Baldwin: Well, as you know, under the Economic Partnering Arrangements there is tariff-free trade on a lot of areas already with the EU. We aim to be at least...

Smith: But not on food.

Baldwin: ...at least as ambitious on that. As far as food is concerned you're absolutely right, I think there is scope for UK consumers and African exporters to benefit from the UK's decision to leave the European Union but ...

Smith: But there will [unclear, talking over] be tariffs on agricultural exports from Africa.

Baldwin: We aim to be at least as strong as we are now in terms of the Economic Partnering Arrangements so I do think...

Smith: [keeps going, repeating the assertion about high tariffs and including a mention of a tariff of over 300% on processed sugar, and all Baldwin could say was "we aim to do at least as well"]


A few observations:

1. As an EU member state, we have Economic Partnership Agreements (not partnering arrangements), either fully in place, being implemented or in negotiation with a number of African countries and regional trading groups.

2. Under these agreements (with a few exceptions) and the Everything But Arms scheme (which covers the least developed countries, many of which are in Africa) no tariffs and no quotas are applied to any imported products (except guns and ammunition, as the name implies). The simplest summary is probably here: http://trade.ec.europa.eu/doclib/docs/2017/november/tradoc_156399.pdf

3. If no tariffs are charged on a product, it's hard to see how consumers or exporters could benefit from their removal (or indeed how the exporting countries can be said to be "particularly annoyed" about them). Also, according to all the announcements so far from Michael Gove and others, there's no prospect of standards for agricultural imports changing in the foreseeable future.

4. Neither interviewee nor interviewer was aware of these facts, though Ms Baldwin did appear to have some grasp of the EPAs.

5. Numerous specialists in trade, law and European politics were exasperated by the inaccuracies exhibited here. I saw them on Twitter, but I have no doubt that phone calls were being made, letters written etc.

My simple question is this: What briefing - nay, training - should ministers, journalists, presenters on the nation's supposed flagship news programme, and MPs have received in preparation for this process - travelling to a trading partner, the negotiation, the preparation and debate, the referendum campaign itself?

And an even simpler question: What briefing did you get?


Ed Wilson

The electoral commission is too weak, but that's not why it's under fire

Two days ago, the UK Electoral Commission announced that it would not be investigating complaints against various campaigns for the EU referendum. Priti Patel MP had alleged that three videos should have counted against the allowed budget of the main Remain campaign. The commission's report says there is no evidence or "insufficient grounds" for agreeing with her, but has decided to investigate possible undeclared joint spending by a smaller Remain campaign - Wake Up And Vote - and the video company. Watch this space.

The commission also decided against an investigation into a large sum of money donated to the DUP in Northern Ireland, much of which was spent on advertising for Leave in a newspaper which does not circulate in Northern Ireland. The allegations of dark goings on sprang from a BBC investigation in March 2018 but had been covered many times by others. Again, "The Commission has concluded it does not have grounds to open an investigation into the allegations made by BBC Northern Ireland Spotlight" but it complains, not for the first time, that it "continues to be prohibited by legislation from disclosing any information concerning donations to Northern Ireland recipients made prior to 1 July 2017" despite a government undertaking that these would be published from 2014 on. This one might come up again.

It's more than two years since the vote and these questions are still coming up. The commission has investigated and published findings ranging from fines of £1250 on Britain Stronger in Europe and £18,000 on the Liberal Democrats, to the recent report on investigations into Vote Leave, BeLeave and Veterans for Britain. This involved fines of £20,000 on Vote Leave, VL's "responsible person" David Halsall and BeLeave's Darren Grimes. The latter two individuals were also referred to the police because their contraventions of electoral law, which attracted the fines, might also amount to criminal offences.

Comment around the release of the report included demands that the law should be amended to raise the maximum fine available to the commission from £20,000. As the commission had said in an earlier publication, "We are worried that a maximum fine of £20,000 risks becoming a cost of doing business for some campaigners", which was a common complaint when the Conservative party was fined £70,000 for several offences during the 2015 general election. Another concern is that campaigns are not require to provide sufficiently detailed reports on spending, and can take an unreasonable amount of time to do it.

When the House of Commons Digital, Culture, Media and Sport select committee put out its interim report on "Disinformation and ‘fake news’", which also included significant criticisms of the activities of some Leave campaigners, these two reports were grouped with an earlier one from the UK Information Commissioner, and seen by some as a concerted attack on the very idea of Brexit by the "Remain establishment".

Sensible points being made by @halfon4harlowMP on @BBCWestminHour - one sided attacks on Leave campaign by @ElectoralCommUK and @CommsCMS looks like Remain establishment attempting to undermine the referendum result.

— Lucy Allan MP (@lucyallan) July 29, 2018

Various MPs had already promoted crowdfunding projects for Darren Grimes, the first of which was originally designed to to pay his £20,000 fine then (when that was judged likely to be illegal) the approach changed to raising money for his legal expenses. Questions were asked about the appropriateness of MPs casting doubt on the probity of a statutory body which is, after all, answerable to Parliament.

Many doubters circulated a meme, identifying the collection of the great and the good which makes up the commission itself. Nobody had anything to say about the electoral commission's many staff who actually do the work, and decide who has broken the law.

Many also complained that the pro-Remain booklet, which was circulated by the government at the beginning of the campaign, should have been counted into the reckoning of overspending. The commission rightly pointed out that it had no power to do so, since it was produced (at a cost of £9.3 million) outside the regulated campaign period. David Cameron gamed the system, and the commission's critics fail to mention that the commission criticised the move at the time: "The elections watchdog has criticised No 10 over its £9.3 million leaflet and advertising campaign to persuade voters to stay in the European Union.".

Despite several requests, none of the complainers I've communicated with can offer evidence that the commission has broken the law or its own rules. The meme above, the complaint that the Remain campaigns spent more money, especially when you take Cameron's booklet into account, and a general feeling of being under attack are all that's offered.

It just might be possible that the Remain campaigns were generally boring and obeyed the rules, and that the various Leave campaigns, as documented in these reports, weren't and didn't.

Michael Gove's correspondence

One Sunday in 2017 the British government announced that it was going to write a letter to itself, informing itself that it intended to withdraw from an international agreement of which it is the custodian, and asking itself to inform the other parties to that agreement of this intention.

The agreement in question is the London Fisheries Convention, which came into effect in March 1966 and allows its signatories to fish within a belt between six and twelve miles from each others' coasts in which they have "habitually fished". It also defines the rights of each coastal state to regulate this belt, for example to "give effect to internationally agreed measures of conservation".

This move is "an historic step towards delivering a fairer deal for the UK fishing industry" and "part of moves to prepare the UK for the opportunities of leaving the European Union", according to the announcement, and affects "vessels from France, Netherlands, Belgium, Ireland and Germany" which "in 2015... caught an estimated 10,000t of fish, including mackerel and herring, worth an estimated £17m" in the belt around the UK.

Formally the move was presented only as "taking back control" but Fishing News referred to "countries that will lose access to the UK’s 12-mile zone". This was certainly the way it was seen by the Irish fisheries minister Michael Creed, who "reminded the UK that some of these rights were reciprocal, allowing not only the Irish fishing fleet access to parts of the UK 6-12 mile zone, but also the UK fleet to parts of the Irish zone".

Creed also pointed out that these access rights were incorporated into the EU Common Fisheries Policy when Ireland and the UK joined the EU, and Michel Barnier "brushed away this decision as irrelevant to negotiations on the Common Fisheries Policy, which superseded the 1964 agreement". As the March EU Council summit approached, the main concern was whether the Common Fisheries Policy would continue to apply to the UK's waters and fishing fleet during the proposed transition period.

How the supposed dates of Brexit (March 2019) leaving the fisheries convention (July 2019) and the end of transition (December 2020) interact hasn't been addressed  anywhere I've found, and if a letter ever was sent it isn't on the UK list of negotiation documents.

Listening to business

If you want to know, ask

A big Brexit-related story came yesterday from the Society of Motor Manufacturers and Traders. The Guardian reported that investment by car companies had "halved" to less than £350 million in the first half of 2018. "That’s the cost of uncertainty," said Mike Hawes, SMMT chief executive, "that’s the price we pay for slow decision-making". Which confused me, because I remembered a Financial Times report from last year which told us "Investment in the UK car industry has fallen to just £322m in the first half of 2017", and £350 isn't half of £322.

So I emailed the SMMT: "I understand that figures might be revised when more information comes in, but I can't find useful comparable figures on your web site. Do you publish year on year figures?" and (a pleasant surprise) received an answer: |"Yes you're right, the figure was updated to £647.4m in the first half of 2017. Please bear in mind also that this figure is calculated from public announcements of fresh investment into the industry". The trend, I was told, is:
2015 - £2.5 billion
2016 - £1.7 billion
2017 - £1.1 billion
H1 2018 - £347.3 million

Last year Hawes said "A lot of people have spent the best part of decades turning round the industry, when you think back to how it was characterised in the 70s, 80s and into the 90s. It is very different now. It has had very difficult times and it is a cyclical industry, and there is a fear that that success could be put at jeopardy.

"We consistently said do not expect [the German car industry to demand a good deal]. The European market and to a certain extent the European project is more important to them than the UK, so they want to safeguard the four freedoms which benefit them. If any sector has really benefitted from growth and development across Europe, it’s the German car industry. It is frustrating and it also reveals a lack of understanding of the way markets operate."

And this year his message is "There is no Brexit dividend for our industry, particularly in what is an increasingly hostile and protectionist global trading environment. Our message to government is that until it can demonstrate exactly how a new model for customs and trade with the EU can replicate the benefits we currently enjoy, don’t change it".

This follows BMW's UK boss Ian Robertson warning "If we don't get clarity in the next couple of months we have to start making those contingency plans... which means making the UK less competitive" and the company's chief executive commenting that it must remain "flexible" about production facilities. BMW's director of customs operations said "if in the end the supply chain will have a stop at the border, then we cannot produce our products in the UK".

BMW has already raised the possibility that the new electric Mini might be made in Germany or in the Netherlands, which already produces a third of all Minis, but the current position is still that "While Brexit has made BMW hedge its production bets, the company is still committed to the Oxford plant and the English heritage of the brand," though future developments will be in cooperation with China's Great Wall Motors.

We've had similar statements from Honda and Unipart among several from other industries. Unipart reminds us of the issue of supply chains, and of rules of origin. Almost 90% of BMW parts used in their British plants come from Germany, though the industry average of UK content in British-made cars is currently 44%. To qualify as a product of "EU origin" the normal rule is that around 55% of components must be produced in an EU country, and EU companies have been warned that "too many" British parts could cause trouble when cars are exported. How any future UK-EU agreements handle these rules of origin (and whether trade partners accept it) might have a significant impact on UK exports. Unipart and the SMMT also raise the subjects of dealerships, servicing and spares.

These are warnings of the implications of a sub-optimal Brexit (if there can be anything else), and whether you ended up blaming EU intransigence or the UK red lines would be irrelevant if it happened, but obviously no company wants to have to incur the cost of moving production. And we hear from the midlands that Jaguar Land Rover plan major investment over the next few years after a poor year. "Sales and revenue did not grow as much as we planned [last year] with diesel uncertainty impacting the UK and European markets, exacerbated in the UK by Brexit and cyclical weakness".

Then we heard from Carlos Ghosn, head of Renault-Nissan, who never minds being the centre of the story: 

Carlos Ghosn tells me on Brexit: “We don’t have a clue how all this will end up...we frankly are in the dark...”

— Theo Leggett (@Theothebald) June 27, 2018

And now, services

There's a lot of stuff about manufacturing and goods in the Brexit debate, though it's a relatively small part of the UK economy. Now the European Services Forum, "a European private sector grouping that represents the interests of the European services industry in international trade and investment negotiations related to services". has sent a letter to the chief negotiators Michel Barnier and David Davis. It's clear, concise and well enough written, so I'll let it introduce itself.

"Given that ESF’s focus is on trade and investment negotiations, we have so far refrained from commenting on the negotiations over the United Kingdom’s withdrawal from the European Union. Now that the European Council has agreed to authorise the negotiators to turn to the future relationship, we would like to offer you some views on points of critical importance to our members.

"Trade in services will have a central role in the future EU-UK relationship. Services are the basis of both economies representing 74% of EU GDP and 73% of the EU labour force and 80.4% of UK GDP and 83.5% of the UK labour force. 

"it also needs to be remembered that cross-border flows of goods depend on services, including air, rail and sea transport, port services, road haulage, logistics, freight forwarding, customs clearance, delivery services, professional services, trade finance, insurance and insurance intermediation.  Action is needed on many aspects of  regulatory  frameworks in services sectors, including arrangements that secure contract continuity, to ensure unbroken flows of goods and services.

"Based on our experience of trade negotiations, we are concerned that - even with the strongest political will from both sides - a period of 21 months is unlikely to be sufficient to cover all the stages needed to put in place the  future relationship (completion  of  negotiations, agreement in principle, legal scrub of agreed texts, signature, ratification and implementation).

"The UK is the largest services exporter among the EU28, at €189.2 billion, representing 22.4% of total EU28 services exports (extra EU). The EU27 take 58.2% of UK services exports. According to Eurostat, the EU27 exported €92.8 billion services to the UK in 2016 and the UK exported €110.2 billion services to the EU27. The EU27 and the UK trade in services are highly integrated as a result of progress towards the EU single market in services.

"According to the Trade in Value Added (TiVA) database developed by the OECD and the WTO, in 2011, 37.1% of the value of UK total exports of goods is in fact "goods-related services" and this figure rises to up to 39.9% for the EU28."

What does the UK say to Japan?

A letter to my MP

Recent statements by industrial concerns such as Airbus, Unipart, the Freight Transport Association and BMW have drawn positive engagement and more critical comments in recent days, and periodically over the last year. The issues they raise are significant, such as the damage that concluding the Brexit negotiations without a deal would cause to the UK, Ireland and every other EU country. I don't want to push those points today, but rather to ask a single question.

I hope you've seen the letter the Japanese government addressed to the UK government and every citizen of the EU, including the UK, in September 2016 (it can be found at https://www.mofa.go.jp/files/000185466.pdf and was discussed by the Independent here: https://www.independent.co.uk/news/business/you-should-read-japans-brexit-note-to-britain-its-brutal-a7833396.html ).

We enjoy a lot of Japanese investment in this country, with the employment, technological and export benefits that spring from it, and we have had reassuring statements on new model investments from Nissan and Toyota, yet companies are still left dangling - in public at least - about what we can all really expect. By my calculations we have only 114 calendar days and 30 normal Commons sitting days before the current timetable has the Commons debating a final withdrawal agreement.

My question is: has the British government published a public response to the Japanese government's public letter?

Those whom the gods wish to destroy...

... they first make mad

"We are facing some real difficulties at the moment," said Dominic Grieve on Wednesday as he presented his last ditch argument that Parliament, and the Commons in particular as the elected chamber, should really decide on how the British government proposes to end this process of negotiating to withdraw from the European Union.

"It is rightly said that those whom the gods want to destroy, they first render mad. There is enough madness around at the moment to make one start to question whether collective sanity in this country has disappeared. Every time someone tries to present a sensible reasoned argument in this House vilification and abuse follow, including death threats to right hon. and hon. Friends [MPs on the Conservative side]. There is a hysteria that completely loses sight of the issues that we really have to consider. There is an atmosphere of bullying that has the directly opposite consequence in that people are put into a position where they feel unable to compromise, because by doing so they will be immediately described as having 'lost'—as if these were arguments to be lost or won. The issue must be that we get things right."

I agree with almost every word of that. I see the vilification and abuse every day, in media reports, and raw on social media. And as an observer rather than a Twitter cage fighter I don't see a hundredth of what some of the protagonists, or their staff, have to deal with. Can you really block, mute or ignore a tweet which might contain your address and a threat of violence? The right to free speech as a right to raise a posse and dominate your target's life is an ugly thing.

Where Grieve and I part company (this month) is on tactics. Last week he had a majority to pass his amendment. It would have gone back to the Lords and returned to the Commons. The government would have tried, and probably succeeded, to water it down, but when you have a majority you should bank it.

Grieve's amendment attempted to define how the elected representative body of this country should handle the situation of its indirectly elected government conspiring to present an agreement to withdraw from the European Union which is unacceptable to the majority of our representatives, or even, having utterly failed to reach such an agreement, coming back to tell us "OK, we're just dropping out". And Grieve wanted to tell them to sod off. If you've failed the country, you don't just get the job of pretending to manage the failure.

I'm sure I'd disagree with Dominic Grieve on many things - fox hunting for example - but for the last few years I've been aware of him I've admired his intellect, his eloquence and - I really hope - his straightness. But he's given way, last week to promises from the prime minister which weren't delivered, and this week to pleas that the government might be weakened if his logical provisions were actually enacted. As a former head of the Treasury civil service said this week (he's deleted it, but I saw the original tweet and Laura Kuenssberg quotes it) "Axiom of the last 30 years. Europhile Tories always compromise to preserve party unity, Their opponents don't".

Who has been made mad? Some would say Brexit itself is crazy. It's certainly unlikely to help a lot of the people who voted for it. Laura Smith became famous for a moment when she resigned from her position as shadow cabinet office minister (No, I hadn't noticed her either). Five other Labour MPs resigned from even more junior posts to vote for an amendment calling on the government to try to maintain EEA membership.

But Smith voted against, rather than adopting her leader's principled instruction to abstain. She insisted that she was observing the wishes of her constituents, who voted Leave because - to coin a phrase - they had been left behind. She's right that large parts of this country have been served badly by the people who run it and the way they manage our relationship with the "globalised world" we've built and allowed to be built. But, at the very best, Brexit would waste a few years NOT doing anything about why they voted Leave.

Incidentally

This month we, the EU, have completed the third round of trade talks for a new, modernised free trade agreement (FTA) with Chile. Daniel Hannan MEP can continue to get his favourite Chilean wine tariff-free, and we're working on higher, agreed standards on animal and plant health, employment and women's economic position.

We mustn't be too unkind to Mr Hannan. At the time of his tweet he'd been an MEP for barely 17 years, and obviously hadn't worked his way into the job. Unlike those damned tweeters who read stuff:

Didn't Hannan once try to claim there was a 32% tariff on Chilean wine? Just a few problems:
a) the tariff isn't 32% but 32 cents per litre
b) that's the rate for sparkling wine - it's a lot less for still wine
c) Chile has an FTA with the EU so the rate is zero anyway

— Simon (@uncriticalsimon) April 20, 2018

Australia's prime minister Malcolm Turnbull (centre)
launches EU-Australia trade agreement negotiations
with EU commissioner Cecilia Malmström (right)

We, the EU, have also opened trade negotiations with Australia. As the blurb says, "The EU is Australia's second-biggest trade partner. Bilateral trade in goods between the two partners has risen steadily in recent years, reaching almost €48bn in 2017. Bilateral trade in services added an additional €27bn. According to an impact assessment, trade in goods and services between the two partners could increase by around a third".

Still in June we, the EU, have started trade negotiations with New Zealand. Commissioner Malmström said, "Trade agreements are about economic opportunities but they are also about strengthening ties with our close allies. In New Zealand, we know that we have a partner who stands up for the same vital values as us. This agreement is an excellent opportunity to set ambitious common rules and shape globalisation, making trade easier while safeguarding sustainable development. We can lead by example".

In April we, the EU, concluded negotiations with Singapore on a Free Trade Agreement and an Investment Protection Agreement, which are now going through the ratification process. They aim to 

• "remove nearly all customs duties and get rid of overlapping bureaucracy
• "improve trade for goods like electronics, food products and pharmaceuticals
• "stimulate green growth, remove trade obstacles for green tech and create opportunities for environmental services
• "encourage EU companies to invest more in Singapore, and Singaporean companies to invest more in the EU"

The Singaporean foreign minister spoke to Radio 4's Today programme on 20 April, expressing the hope that the deal would be in place by "Brexit day" to ensure continuing good relations. He told us that Singapore would happily continue trading with the UK on the same terms. That's just a few dozen other countries we have to get the same agreement with.

(I'd give you some quotes from that interview, but the programme's no longer available so I can't transcribe it. It was notable, however, that Justin Webb demonstrated detailed knowledge of customs unions and the state of negotiations between the UK and countries we currently have trade deals with via the EU. The people who deliver our news know stuff, but they're too seldom allowed to show it.)

Also queuing up for ratification and implementation some time soon ("The Commission will then submit the agreement for the approval of the European Parliament and EU Member States, aiming for its entry into force before the end of the current mandate of the European Commission in 2019") is the EU-Japan Economic Partnership Agreement. To quote the "in-depth analysis", "The economic gains from this agreement are of the same magnitude as a free trade agreement with the United States, and could lead to major increases in exports (notably in the food and feed, processed food sectors). There are also considerable benefits for consumers, business and employment from an effective liberalisation of both markets that encompasses tariffs and regulatory issues. These gains are more symmetrically distributed than earlier FTAs, and benefit groups that do not always stand to gain from trade liberalisation". 

Laim Fox already has his work cut out to ensure that we can still trade in the same way during transition as we do now, let alone thereafter. He'll have to put us in the queue for other talks, starting with Australia and New Zealand perhaps. Who was it who said this is the wrong thing, done badly? Oh, it was me.