Autumn 2018 issue: references, notes and quotes.
UKIACE, ‘The Brexit Endgame’ on approval process
Points of contention
“While Spain is for resisting the temptation to push its claims of sovereignty over the key strategic island, it is keen to secure concessions. Spanish leaders have made no secret of their wish to see more cooperation from Gibraltar when it comes to taxation policy, with Spain’s Director of Customs, Pilar Jurado, in April comparing the Rock to a “bad boyfriend” and branding it a tax haven.”
Brexit and Governance of the UK-EU Relationship
White Paper on the Future Relationship between the UK and EU
EU Withdrawal Agreement, as at 19 March 2018
(green text is agreed in detail, yellow is agreed as an objective)
European Parliament resolutions
London talks tough but gives Brussels what it wants.
CAUTIONARY NOTE: LABOUR’S POLICY ON BREXIT SEEMS TO WOBBLE A LOT
Labour’s “Six Tests”
Reality Check: What is Labour's Brexit plan?
When you look at the tests it is hardly surprising that they are on course to be failed, because of the way Labour set them out in the first place, as a way to judge the final Brexit deal.
What is being negotiated between the UK and the EU now is the withdrawal agreement - the terms of divorce, rather than the precise detail of the future relationship.
So it's not the final deal, and that makes some of the tests rather hard to assess fully at this stage.
Labour manifesto 2017
The U.K.’s opposition Labour party could back Theresa May’s Brexit deal in parliament because the terms of the future relationship with the EU are likely to be too vague to object to, the party’s foreign affairs spokesperson said.
Sir Keir Starmer MP
Call for ‘legally binding transition’
“There’s no dispute that Britain will leave the European Union in March 2019. Labour voted to trigger Article 50 and we did so knowing that we would leave the EU within two years. That means Britain leaving the European Council and no longer having Members of the European Parliament.
“As our election manifesto made clear, Labour accepts and respects the referendum result and we will fight for a Brexit deal that puts jobs and the economy first, and maintains rights and protections."
Sir Bill Cash on transition
Pascal Lamy on FTA (‘2 years to 5-6 years’)
Global Counsel on ‘no deal’ scenario
What if there's no Brexit deal?
‘No deal’ effects upon Germany
"No deal" scenario not an option
Larry Elliott on ‘no deal’
“…Financial markets think the same, putting the chances of no deal at 10%. This is a reasonable assumption. The history of EU negotiations is that victory is snatched from the jaws of defeat with an agreement made at the very last minute. With the eurozone economy not in especially good health, there is no real appetite in any European capital for a no-deal outcome.”
Karin Kneissl on EU unity
EU institutions united on ‘Norway deal’
Dr David Owen on the EEA as an interim measure before a free trade agreement
UK staying in the EEA – Robin Walker MP
Termination of EEA Agreement
Prof. George Yarrow on why EEA will continue
Guillaume Van der Loo and Steven Blockmans
The Impact of Brexit on the EU’s International Agreements
 In the UK mixed agreements are designated as an EU treaty for the purpose of the 1972 European Community Act. On the UK’s constitutional procedure to ratify mixed EU agreements, see V. Miller, EU External Agreements: EU and UK procedures, Briefing Paper, House of Commons, 28 March 2016.
 Article 39 VCLT states that a treaty may be amended “by agreement between the parties”.
 In absence of such a clause, it may be argued that a third party can terminate the agreement by invoking the ‘fundamental change of circumstances’ principle of Article 62 VCLT. However, the International Court of Justice applies a strict interpretation of this principle as it argues that “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases” (Judgment of 25 September 1997, Gabcíkovo-Nagymaros Project (Hungary v Slovakia)).
Publications worth a look
UKIACE report on exposure – ‘Brexit and the island of Ireland’
Dr Graham Gudgin
“A new cold wind has been blowing from Dublin this week on the vexed issue of the Irish land border. The previous Irish position of preparing for a technological solution to minimise border disruption has been overturned. Enda Kenny, Taoiseach until June, had implicitly accepted that a border would be necessary, and had begun preparations, along with the British, to minimise disruption. Quiet contacts had been taking place between officials north and south of the border. As the new Fine Gael government team led by Leo Varadkar has found its feet all of that has begun to change.
First the Irish Foreign Minister, Simon Coveney, said that no border is acceptable. Another government spokesman said that no technological solutions could make a border acceptable. Then in Brussels last week, Leo Varadkar said that the border was Britain’s not Ireland’s problem and that Irish work on technological solutions would cease. Most strikingly he also said that the border should be moved to the Irish Sea. What this implied was that no customs checks should be done at the land border, which would remain largely as invisible as it does today. Instead customs checks would occur at seaports and airports.
This idea apparently came as a surprise to officials in Ireland’s Department of Foreign Affairs, and does not seem to have been based on much thought or analysis. Such ideas are incoherent and unhelpful. The EU27’s negotiating position on the border explicitly states that the integrity of the EU’s Legal Order must be maintained. This means a tightly managed border around the Single Market. The May Government’s position is that Northern Ireland, as part of the UK, will almost certainly be outside the Single Market. Border checks will thus have to take place at the land border, not at Belfast, Larne or Warrenpoint. Indeed, it is difficult to imagine what ‘a border at the Irish Sea’ would actually mean.
If Northern Ireland remained within the Single Market but GB did not, then tariffs would be imposed on Northern Ireland goods to GB. Since there is not the slightest chance of either the DUP or the UK Government agreeing to such a scheme, Varadkar presumably had something else in mind. Assuming that Northern Ireland will be outside the Single Market with the rest of the UK, he nevertheless appeared to envisage that any goods moving between Northern Ireland and the Republic of Ireland would be free of tariffs or other checks (such as those for animal health).”
The blind spots in the ERG report
“Given that 80% of cross-border trade on the island of Ireland is conducted by small and micro businesses, the report’s failure to address the position of small businesses is a serious oversight. The report makes two different suggestions without considering the implications or the risks entailed
Requiring customs declarations of all goods being transported across the border will be prohibitively costly for many of the small businesses trading across the border. As such, it would have the effect of putting a serious barrier to trade between Northern Ireland and its most important export market.”
“IRISH deputy Prime Minister Simon Coveney dismissed claims a failure to secure a Brexit deal between the UK and the European Union will reignite violence in Northern Ireland.”
Sammy Wilson MP, DUP Brexit Spokesman
"The EU have been trying to manoeuvre the negotiations to ensure that the United Kingdom as a whole stays within the single market and customs union and have been using - or abusing - Northern Ireland to try and bring that situation about," he told the BBC Radio 4 Today programme.
"It seems that the EU have made it quite clear that the only option they are interested in is regulatory alignment which would either remove Northern Ireland from the United Kingdom, separate us from our main market and politically create an issue where we are separated from the rest of the United Kingdom, or else force the whole of the United Kingdom to stay in the single market and the customs union."
Possible solutions and likely opposition
BBC Europe Editor on wording fudge
Q&A: The Irish border Brexit backstop, John Campbell, BBC News NI Economics & Business Editor
“However, the conciliatory tone of Barnier’s speech was striking and may help move negotiations to the next phase. On Northern Ireland, he repackaged the need for a backstop solution, spelling out the need for regulatory alignment for livestock and agri-food. He said this was necessary for food safety and animal health across the border and would allow farming to continue as it does.”
“One small ray of light for May arrived in Barnier’s comments on the backstop. Although he stressed that not enough progress had been made on finding an agreement on the Irish border, he did seem to soften his language – saying his side were open to any solution.”
“Mr Barnier promised to “delete” the backstop Northern Ireland plan if a trade deal or British technological solutions solve the border issue”
“Richard Boyd Barrett, a Teachta Dála (TD) for the Dún Laoghaire constituency, asked Mr Juncker how the EU could be trusted on Brexit after turning Mediterranean Sea borders “into a fortress”.
“We don’t trust the Tories but can we trust you that there will be no border under any circumstances?”
Mr Juncker replied quickly with a firm “yes”.”
“The European Union has reassured the Government that no physical checks will be needed on the Border even if the UK crashes out of the bloc without a deal, Taoiseach Leo Varadkar has said.
Mr Varadkar said that such a “doomsday scenario” would mean that the “commitments of others” would be relied upon to prevent a hard border.”
(speculation) “Now Government sources say they are prepared for major confrontation with WTO officials, who will insist on a Border with the North as part of strict trade laws”…('It is understood')
EU ‘support’ in exchange for harmonised tax concessions?
“The Government is facing the threat of European countries demanding concessions on our tax regime in exchange for support in the Brexit Border battle.
A renowned global news agency says some member states may press Ireland to drop its opposition to wide-ranging corporation tax reform in return for such backing.
Bloomberg quotes an unnamed European official saying “solidarity doesn’t come for free”.
The move is viewed as the first sign that some EU members expect a price in return for commitments to Ireland in the Brexit process.
However, last week European Commission president Jean-Claude Juncker launched another assault on our powers to veto tax matters at EU level.
The low rate of corporation tax in Ireland remains an open sore in our relations with the European Union.
In June, as Mr Juncker reassured TDs of the EU's determination to avoid the return of a hard border in Ireland after Brexit, he also urged them to drop opposition to the digital tax. "Given the EU's unwavering support around Brexit, it will be politically unsustainable for Ireland to be the sole blocker of tax changes, the person said. Any tax proposal will need the unanimous approval of all EU members before becoming law, meaning a single country could block it," Bloomberg reports.”
[See also ‘Single Market = Single Tax System?’ below]
“Despite mounting evidence, Taoiseach Leo Varadkar and the Minister for Foreign Affairs Simon Coveney insist there's nothing to be alarmed about. Support for Ireland is "solid" we're told. Leaks to the foreign media are dismissed. But for those of us who watched the bailout unfold it is suddenly, and horribly, familiar.
Eight years ago, then ministers Noel Dempsey and Dermot Ahern were equally dismissive of foreign media reports. Their successors should be wary of being so emphatic.”
Brexit Delivery Group poll (“get on with it”)
Polls on voter intentions in Mutineer/Remoaner constituencies - 4000 strong
Various polls and research, Sir John Curtice
“On average in recent polls, only 7% of those who said they voted Leave now say they would vote Remain – no more than the 7% of Remain voters who now say they would vote Leave.”
"The nation hasn't - yet - changed its mind firmly and for good".
“The polling figures include people who did not take part in the referendum, so the four-point gap is likely to be smaller if it came to a vote.
Sir John [Curtice] said: “There is doubt that there is still a majority of support for Leave but there is also doubt that actually a second referendum would necessarily deliver a majority for Remain. Neither side could be sure of the outcome given how close the polls are.””
Vote Leave and Electoral Commission
Remain collusion, Priti Patel MP dossier
Evening Standard, 8 Oct 2018
The website claims 'soaring food prices' on the strength of a 'report' not publicly available to check. https://www.standard.co.uk/business/soaring-brexit-food-bills-set-to-boost-discounters-aldi-and-lidl-bank-claims-a3956141.html
In the printed version of the, but not online
'Brexit may force us into sex work say students'
"Students from the EU could turn to sex work to fund their studies after Brexit, a student leader says.
The Tower Hamlets Brexit Commission was told international students often take "insecure" jobs for cash in hand because visa rules mean they can't work more than 20 hours a week.
Ella Harvey, of Queen Mary University students union, said it was now feared some of the 1,700 EU students could be in the same boat after Brexit. She said "Recently there was research about students increasing engagement in sex work. It is worrying because often it is for survival."
- No record of this 'research' could readily be traced, so by default it should be regarded as lurid speculation.
Remoaner Denis MacShane alleges BBC propaganda
“A typical piece of Brexiter propaganda is that a People’s Vote would be a trick imposed on a hapless electorate by Brussels. Laura Kuenssberg, normally precise and focused in her analysis, spouted this canard on the Today Programme this morning (7.09am), saying: “The EU has form on this. If the leaders’ club doesn’t like the result, you get the public to vote again until they do.”
Kuenssberg is also wrong about other countries. When France and the Netherlands said no in 2005 to the EU constitutional treaty, that was accepted.” [sic]
Pro-EU MEPs claim BBC bias
Counter-argument by Guido Fawkes
EU propaganda planned
Technical Barriers to Trade (TBT)
The Trade Facilitation Agreement (TFA)
Sanitary and Phytosanitary Measures (SPS)
These are all examples of ‘Annex 1A’ (to the WTO Agreement) Agreements. WTO's case law notes that these predominate over basic WTO GATT rules in the case of a conflict between provisions. Therefore an EU Customs Union (or Free Trade Agreement) cannot be used to discriminate against the UK (or others) in favour of its own members. It would count as a disguised restriction on trade.
Measures in scope include not just technical product/produce regulations, but the admin framework (e.g. registration, accreditation and approval, collectively classed as ‘conformity assessment’.)
Such procedures must grant access to suppliers under conditions no less favourable than others
in comparable situations. Where other suppliers’ measures are equally effective, they must be accepted, even if they are different (and the UK’s won’t be different on Brexit Day).
It is difficult to imagine that the EU would refuse to admit on 30 March 2019 a box of UK components from a batch produced fully to EU standards on 27 March.
SPS uses very similar concepts to TBT. If an exporting country can demonstrate that the measures it applies to its exports achieve the same level of health protection as in the importing country, then the importing country is expected to accept the exporting country’s standards and methods.
The TFA Agreement requires customs processing to take account both of live risks and any history of past checks.
[See also ‘Border Inspection Posts’ below]
Find decisions of WTO bodies concerning the GATT agreement in the Analytical Index — Guide to WTO Law and Practice
"In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to in the agreements in Annex 1A as the "WTO Agreement"), the provision of the other agreement shall prevail to the extent of the conflict."
Waivers and other exceptions
‘Integrity of the Single Market’ (sic)
"EU leaders have rejected her Chequers plan because they believe it would undermine the single market by allowing the UK to "cherry pick" bits of EU law it liked and ditch the rest."
“The EU has made great play of its principled stance that ‘cherry picking’ of the best bits of the single market is unacceptable. Her Majesty’s Government, for its part, has pointed to what it sees as a problem with this argument. The Northern Ireland backstop proposed by the EU would be a clear example of such cherry picking, given the region would remain only in those parts of the single market necessary to ensuring the functioning of the all-Ireland economy.”
“For all that the idea of the “integrity of the single market” has taken on a theological quality in the Brexit debate, we should remember two things. First, even within the EU itself, the four freedoms are not only divisible, but divided. Second, this “integrity” is obviously negotiable — as the cases of Switzerland and Ukraine illustrate all too clearly — for non-member states.”
“The doctrine known as the inseparability of the four freedoms (for goods, services, capital and labour) is not based on solid legal or economic foundations but it has served as a basis for political agreement between the 27 and is embedded in treaties with third countries like Norway or Switzerland.”
“The free movement of capital has the broadest scope of all treaty freedoms. It is the only freedom that goes beyond the boundaries of the EU internal market, as it also includes capital flows between EU countries and the rest of the world.
Article 63 of the treaty on the functioning of the EU prohibits all restrictions on capital movements and payments not only within the EU, but also between EU countries and countries outside the EU.”
Single Market = Single Tax System?
A Fair and Efficient Tax System in the European Union for the Digital Single Market
“Integrity of the Single Market – Converging towards a common solution that avoids unilateral measures that would destabilise the functioning of the Single Market. Uncoordinated national measures will lead to fragmentation of the Single Market, further distortions and tax obstacles that will prevent companies from growing and investing in the Single Market.”
Border Inspection Posts (now called Border Control Posts)
the European Union and Switzerland – “Common veterinary space
"In order to provide the resources needed for carrying out import controls on products of animal origin from third countries, it is necessary for Switzerland to be included,"
UK Animal and Plant Health Agency
DEFRA, A description of the UK system of controls on imports of live animals and products of animal origin and evaluation of its performance
“Auditors from the Food and Veterinary Office of the European Commission concluded that the UK has an effective control system on imports and transits in compliance with the requirements of EU legislation.”
Customs, Rules of Origin, the Chancellor’s ‘Diagonal Cumulation’
The pan-Euro-Mediterranean cumulation and the PEM Convention on rules of origin
“The pan-Euro-Mediterranean cumulation system of origin was created in 2005. It brings together the EU, Morocco, and other partners in Europe and the Mediterranean to support regional integration by creating a common system of rules of origin. Rules of origin are the technical criteria which determine whether a specific product qualifies for duty free or other preferential access under a given trade agreement.
Cumulation of origin means a product coming from one partner country can be processed or added to a product of a second partner country and still be considered an “originating product” of that second partner country for the purposes of a particular trade agreement.
The pan-Euro-Mediterranean system allows for diagonal cumulation (i.e. cumulation between two or more countries) between the EU, EFTA States, Turkey, the Western Balkans, the Faroe Islands, and any countries which signed the Barcelona Declaration of 1995. The system was originally based on a network of Free Trade Agreements having identical origin protocols.
These individual origin protocols are being progressively replaced by a reference to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (PEM Convention), which was established in 2011 to provide a more unified framework for origin protocols.”
Barcelona Declaration 1995, to which the UK is a party
“The free-trade area will be established through the new EuroMediterranean Agreements and free-trade agreements between partners of the European Union. The parties have set 2010 as the target date for the gradual establishment of this area which will cover most trade with due observance of the obligations resulting from the WTO.
With a view to developing gradual free trade in this area: tariff and nontariff barriers to trade in manufactured products will be progressively eliminated in accordance with timetables to be negotiated between the partners; taking as a starting point traditional trade flows, and as far as the various agricultural policies allow and with due respect to the results achieved within the GATT negotiations, trade in agricultural products will be progressively liberalized through reciprocal preferential access among the parties; trade in services including right of establishment will be progressively liberalized having due regard to the GATS agreement.
Cooperation will focus on practical measures to facilitate the establishment of free trade as well as its
- harmonizing rules and procedures in the customs field, with a view in particular to the progressive
introduction of cumulation of origin; in the meantime, favourable consideration will be given, where
appropriate, to finding ad hoc solutions in particular cases;
- elimination of unwarranted technical barriers to trade in agricultural products and adoption of relevant measures related to plant health and veterinary rules as well as other legislation on foodstuffs;”
Spinelli Group, Manifesto for the Future of Europe: A Shared Destiny
Support of President Macron's group, which is yet to be represented in the European Parliament.
Spinelli Group, A Fundamental Law, coverage 2014
Europe’s copyright ‘reforms’ are all about the money
UK-Germany defence pact
“There is so much that Britain does in terms of European defense that it is actually important to be able to plug into the European Union,” [Defence Secretary Gavin] Williamson said
“Barnier, the EU’s chief Brexit negotiator, has long harbored ambitions for the Commission’s top post, but announced Friday that he would not seek his party’s nomination in order to remain focused on the talks with the U.K. However, Barnier’s decision not to seek the EPP nomination means that the Council could potentially draft him as a capable, and popular, candidate — presuming, of course, that he leads the Brexit talks to a successful outcome — even though he did not run as a Spitzenkandidat
In his letter on Friday to the EPP president, Joseph Daul, Barnier didn’t state that he is no longer interested in the Commission presidency. Rather, he focused on the complexity of the Brexit talks and his intention to see that “mission” through to its completion.”
Will Podmore’s new book out, ‘Brexit: the Road to Freedom’
Resistance-specific Glossary (PDF)
Commons Library Glossary on \EU
BBC jargon-busting guide
This page updated: 11 October 2018