Article 50, Backstop, Brexit, British Government, Irish border

One month to go and #brexit gameplaying goes on…

This blogpost was written on Wed Feb 27, 2019
skynews-jeremy-corbyn-keir-starmer_4435682
UK Labour’s Starmer & Corbyn in Brussels. Pic via Skynews

With each passing day it becomes clearer and clearer that far too many politicians in the UK, including the Prime Minister and the Leader of the Opposition, think Brexit is some form of game of political point scoring, with little or no thought for the immense damage to lives and livelihoods that will ensue.

On Monday of this week the leadership of the Labour Party, still reeling from the defections of nine MPs last week to the independent benches, announced that it planned to table a motion in the House of Commons calling for a different Brexit deal than the one Theresa May has agreed with Brussels. If the plans it brings forward are voted down in the Commons Labour may then call for a second referendum.

So, what are these Labour plans?

Apparently, the party wants a “future relationship” which would see the UK in “a” customs arrangement with the EU, but the UK would not actually be a member of the existing EU customs union. It would be a bespoke union between the UK and the EU. As part of this arrangement the UK would have a decision-making role when it came to future trade deals being negotiated by the EU.

Now, I cannot see the EU saying to the UK: “Sure, no problem, you can have more of a say on our future trade negotiations than you had when you were a member. What a great idea. Maybe we should give other non-members a say as well. Barnier, why don’t you get Turkey on the phone?”

It also appears that Labour would like a “close relationship” with the EU’s single market. I suspect this means that Labour would like all the benefits of the single market but without the bits the current Labour leadership doesn’t like. Such as the rules on state aid which limit the ability of governments to prop up certain industries when those industries are faced with more savvy competitors from elsewhere.

Put Labour’s ideas on a customs union together with its “friends with benefits” single market proposals and you have its “jobs first Brexit”. In reality, it is little more than “cakism” with red icing. However, if it ever formed the basis of future negotiations with the EU, the EU would soon make it clear that if Labour wanted the benefits of the customs union and the single market then it would have to accept all the obligations as well. There are no cherries to be picked.

But it is never going to come to that. For a start, Labour is not in government so won’t be presenting any proposals to the EU anytime soon. Secondly, the chances of the House of Commons voting for this package are slight to non-existent.

However, that is not what this is about. Jeremy Corbyn, the Labour leader, is as committed to Brexit as the hardest of Brexiteers. He has never voted positively for the EU in his entire political life. In fact, he has denounced the EU time and time again as a neo-liberal, imperialist, war machine.

Corbyn wants the UK out of the EU. But he wants the Tories to take the hit when it all goes wrong, as it will (see here). He wants to be able to pin the economic damage and the lost jobs and the wrecked lives on the Tories.

“It was the Tories’ Brexit that did it. We had a plan for a “jobs-first Brexit”. They voted it down. They wouldn’t even let us put it to the people in a referendum”.

In truth, unlike the vast majority of Labour Party members, Corbyn and his team do not want a second referendum. The stratagem that they have now come up with gives them the best of both worlds. They can later claim: we put forward a plan but the Tories blocked us. We just didn’t have the votes. What could we do?

Such game playing only works because, with one or two exceptions, the UK political class never took the time to understand the EU in general, or what the Article 50 (A50) exit procedure involved in particular.

Now, if you want to know how the UK has consistently failed to understand the EU, its raison d’etre, what drives it, and why its leaders think and act they way they do then read Kevin O’Rourke’s, Brexit, A Brief History.

I have written before, here for instance, that with the exception of the Brexit ultras who want out of the EU at any price, the problem that the majority of MPs have with the Withdrawal Agreement is that it does not specify in detail the future relationship between the EU and the UK. That is not the fault of the EU. It is down to the UK.

During the referendum campaign in 2016 the Leave campaign refused, deliberately, to sketch out what relationship it wanted in the future between the UK and the EU because it believed that if it did so it would split the Leave coalition. The people voted for a “black box Brexit” – you only got to see what was in the box after you voted.

Subsequently, when she became prime minister, Theresa May set down a series of red lines: out of the customs union, out of the single market, out of the jurisdiction of the European Court and an end to “vast” payments into the EU budget.

In response, the EU offered the UK a deal. Pay your bills, guarantee citizens’ rights and commit to ensuring no return of a border on the island of Ireland. In return, we are open to negotiating a future relationship deal but it must be one that respects the integrity of the EU’s economic order. You can’t have benefits without obligations. There are no special deals for leavers and ex-members. But you can’t negotiate the details of that deal until after you have left.

That’s the Brexit paradox. You only get to know what Brexit really means after you have left.

The EU went beyond what was required by Article 50. There is no mention in that article of a transition period.  A country gives notice that it wants to leave the EU and does so two years at the latest after giving the notice. But sometime back in 2017 the UK realised that it would be in no position to leave the EU completely in March 2019. You can’t unpick over 40 years of integration in just two years.

Pragmatically, the EU offered the UK a transition period during which the UK would agree to act as if it were a de facto EU member, follow all the rules, including new ones, and meet budget obligations. During the transition, to run from March 2019 to December 2020, nothing would change. The EU has also offered a longer transition to December 2022, if necessary.

However, while the UK would have to follow all the rules during transition it would have no voice in EU governance structures. In this world, there is a price to be paid for everything. Cue howls of rage that this arrangement would make the UK a “vassal state”.

During the transition the EU and the UK will negotiate the substance of their future relationship. There is a continuum of possibilities. At one end, there could be a unique deal which would see the UK stay in the EU customs union and single market, meaning no adverse impact on trade between the two in either goods or services. For this, the UK would have to follow all relevant EU rules, now and in the future, including free movement. It would have no voice in the making of these rules. Hard to take for a country which was used to imposing its rules on other countries when it had an empire

Further, the UK would not be free to cut its own trade deals with other parties. Not that there is much benefit to be had from deals with faraway places compared to the losses that will be incurred from putting new barriers in place between the UK and the EU. But the freedom to negotiate such deals seems to have now become the holy grail of Brexit, the thing that will make all the pain go away.

At the other end of the continuum is a “common or garden” trade deal. Trade would neither be free nor frictionless. What you would have would be the “Great Wall of Dover” (and Calais), with delays, paperwork and inspections the order of the day. Inevitably, industry and services will ask themselves why they are on the UK side of the wall, with all the difficulties that have to be negotiated to access the bigger market on the other side. The EU will not make it easy for them. Why should it?

Anyone who thinks that London will remain the financial capital of Europe if the UK is completely outside the EU wants to wake up and smell the coffee. Like manufacturing, financial services will drain away, not overnight but over time. Nothing personal, just business.

All of which brings me to the Irish backstop. The backstop is the fall-back to ensure that there is no return to border infrastructure on the island. Irish people, north and south, do not want the return of a border. They see it for what it would be. A scar on the soul of the land. Scars can cause hurt and bring bleeding.

The need for the backstop arises out of Theresa May’s redlines. Common Irish and UK membership of the European Union’s single market and customs union, along with the common travel area within and between the two islands, meant that people, traffic and goods could move across the island without the need for stop, search or inspection. But if Brexit is driven by a desire to take back control of your borders then you build borders where now there are none. That is the logic of your position.

The backstop argument, however, is only a proxy for arguments about the wider, long-term EU/UK relationship. I strongly suspect that a sizeable majority of the MPs in Westminster, like the majority of the UK population, really have very few feelings for Northern Ireland. If there was to be an election tomorrow and were the DUP no longer to be in the pivotal position it is today that would soon become evident. When it comes to the backstop the DUP are in a minority in Northern Ireland. There is no end date to Brexit. One day, the DUP will be in a minority in the House of Commons.

So, here is where we are.

The EU has offered the departing UK a deal, the Withdrawal Agreement. Sign off on that and you have left the EU. Thereafter, during the transition period, when you are no longer an EU member and cannot cause mischief because you are out of our decision-making processes, we will negotiate your future relationship with us. Short of giving you the benefits of membership without the obligations, we are open to seeing what we can put together. But no matter what, it will not be what it is now. Breaking up is always hard to do.

The EU sees the Withdrawal Agreement that is on the table as a reasonable agreement that has gone beyond where it wanted to go when the process began.

In Westminster it is seen as “May’s deal”. The problem is not the word “deal”, it is “May”. She never crossed a bridge that she did not burn behind her. She has courted her enemies and destroyed her friends. She now finds herself surrounded by enemies and bereft of friends. What should be seen as a good deal in bad circumstances is now universally despised in Westminster because it is ascribed to May.

In the weeks ahead Theresa May might find a way to get parliament to vote for the Withdrawal Agreement. If so, it will do so through gritted teeth and without joy. If the Withdrawal Agreement is voted through that will not be the end. It will just be the end of the prelude.

Years of negotiation between the EU and the UK lie ahead. Because these will be divorce negotiations, they will be bitter and twisted.  When you tell someone you are leaving because they are no longer good enough for you, what do you expect?

One final point. I have written more than once that I do not believe that Brexit is in the best interests of either the UK nor the EU27. It would be best for all if a way could be found to rethink Brexit, not least for the reasons outlined by Martin Wolf in the Financial Times here. But I just don’t see that happening.

If the UK goes ahead and leaves the EU then, other than a no-deal Brexit, the offer on the table from the EU is all there will be. There is no alternative.

12 thoughts on “One month to go and #brexit gameplaying goes on…

  1. I’m an American, too, and I have a question:

    Why was Boris Johnson allowed to resign? Why wasn’t he required to remain in office and work out the Brexit he campaigned for?

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  2. Hi Tom Hayes,

    I am a UK lawyer. Not only is there game playing but a process run in ignorance of the rules by which the game should be played.

    All concerned appear to have proceeded on the assumption Brexit is just a commercial negotiation. That does not appear to be correct.

    An underlying theme for the laws and constitution of the EU is the circumscription and control of the exercises of the powers of State. EU law operates to reign in abuses of the exercise of State power.

    Article 50 is no exception. EU law dictates how the EU must act. If tested in the Courts the result could be the Withdrawal Agreement is not legally binding or enforceable.

    The illegal conduct of the EU is summarised by Michel Barnier quoted in French newspaper Le Point International.

    In English: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

    This appears to breach manifold provisions of EU law.

    This is of relevance to all regardless of whether they want to stay or leave.

    I put my argument here:

    EU Illegal Brexit Tactics – Business Can Sue – Invalidation of Brexit Withdrawal Agreement
    https://cliffordmillerlaw.wordpress.com/2019/02/27/eu-illegal-brexit-tactics-business-can-sue-invalidation-of-brexit-withdrawal-agreement/

    Regards,

    Clifford Miller

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    1. What I keep coming back to is an inability to decide whether those in charge of the exit negotiations on the UK side are truly ignorant of how the EU works and the red lines it cannot cross in order to remain a viable organisation, or whether they are being wilfully obtuse.
      Both seem equally possible on the available evidence. Both are intensely scary propositions considering what is riding on the eventual outcome of this process for millions of people.

      I’m not aware of the exact context of the quote by M Barnier as cited by Mr Miller in his comment. But anyone who has any regard for global realities can see with only a little research why the UK staying in the EU would be better for both parties, and particularly for the (Northern) Irish and Scots.

      Under those circumstances one cannot really blame M Barnier for doing everything in his power to make his counterparts across the negotiating table recognise an obvious truth. If the UK were really “holding all the cards” he would not be able to get away with offering something less than the UK thought it needed in order to make a success of Brexit.

      The truth is that, through a series of almost unbelievably incompetent decisions, the UK has now become a supplicant, depending on the EU’s goodwill to come out of an entirely self-dug hole with some shreds of dignity left.

      I’m not saying Brexit never could have worked (provided several decades of preparation had been put in first to make the UK less reliant for its continued functioning on its EU membership, and some kind of viable alternative basis could have been found for the Northern Irish peace settlement) but it should have been obvious from before the referendum that what was being offered by Brexit propagandists was not going to be deliverable as a package.

      The EU is quite clearly not under any obligation to save the face of people like Farage, Gove and Johnson, who promised a trusting electorate the earth without having the faintest clue as to how to deliver on that promise.

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  3. Hi A. Pollington,

    I should have been explicit in my prior comment. The Withdrawal Agreement appears to be be unlawful in its entirety, not valid and so not legally binding. Anyone can apply to the Courts to challenge it. If that happens and a Court agrees then the UK and the EU – particularly those Member States doing the most trade with the UK could all be jumping off the cliff top together even if Theresa May got her Withdrawal Agreement through Parliament.

    And someone is challenging the Withdrawal Agreement in the Courts.

    Lord Trimble (the holder of a Nobel Peace Prize) who was an architect of the Good Friday agreement and is preparing to take the UK Government to Court on the basis the ‘Withdrawal’ Agreement seeks to alter the constitutional relationship between Northern Ireland and the United Kingdom without the express consent of the people of Northern Ireland.

    It is also now being explained via the Bruges Group’s blog that the creation of the backstop breaches the EU’s own principles and those of other European and international organisations. In particular it breaches the principle of Self-Determination.

    https://www.brugesgroup.com/blog/how-the-backstop-breaches-international-treaties

    It is explained in the blog that imposing taxation without representation, via the customs union that the Backstop would establish, is not in keeping with the “European values”. The Backstop would place the EU-27 in breach of a number of their international obligations, including:

    – The 1952 Protocol to the European Convention on Human Rights which ensures “the free expression of the opinion of the people in the choice of the legislature”;
    – The right to self-determination expressed in Article 1 of the UN Charter and expanded upon in various UN Resolutions including: the Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN Resolution 2625(XXV)), the Declaration on the Granting of Independence to Colonial Countries (UN Resolution 1514(XV)), and the International Covenant on Civil and Political Rights (UN Resolution 2200A(XXI));
    – and The EU’s own treaty provisions, including “good neighbourliness” (Article 8 TEU) and the progressive abolition of trade barriers (Article 3(5) TEU) and citizen’s rights to participate in the democratic life of the EU (Article 10(3)).

    These are examples of the wider and more general principles I set out on my law blog. As a reminder For further details of my arguments see:
    EU Illegal Brexit Tactics – Business Can Sue – Invalidation of Brexit Withdrawal Agreement
    https://cliffordmillerlaw.wordpress.com/2019/02/27/eu-illegal-brexit-tactics-business-can-sue-invalidation-of-brexit-withdrawal-agreement/

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  4. Hi Mr Miller,

    Thank you so much for responding in such detail and taking the time to unpack the point you were making, which is an extremely interesting and important one.

    I have long been of the opinion that the WA as agreed is an abomination, and only slightly better than a No Deal outcome. It now looks as if that opinion needs refining, based as it was on just the knowledge garnered from a few modules of (then) EC law and avid Brexit blog/newspaper reading.

    If the WA is actively unstable that means, if I understand your argument correctly, that it could be worse than a deliberately sought No Deal, in that “the bottom could fall out” at any moment, leaving all kinds of agreements concluded on the basis of it, dangling in thin air quite unexpectedly.

    It looks as if it’s a measure of exactly how keen the EU were to have a troublemaking UK at arm’s length, that they would have gone to such lengths to facilitate the UK’s withdrawal. Or possibly that they knew it wouldn’t take much for the UK press to paint the EU as the bad guy for “not allowing” an orderly withdrawal.

    Alternatively, the EU negotiating team’s grasp of the parameters within which they were working was not as complete as I thought..

    It certainly doesn’t appear to have registered at all with the British public to what extent the EU had been bending over backwards in order to agree an acceptable form of backstop. Likewise, there seems to be little understanding of Brussels’ irritation at having their offer thrown back into their face in the HoC.

    It does make me extra pleased about the MP’s continued rejection of May’s WA, though.

    Under these circumstances it baffles me even more that there aren’t many more principled Ministers and MP’s standing up to let the electorate know that the only viable withdrawal route now is some kind of Norway+ one, which, less face it, means it’s on the whole much more sensible to stay.

    Why keep protecting the reputation of people who are not known for their truthfulness and integrity in the first place?

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  5. Hi A Pollington,

    The points I make on my law blog are part of the picture.

    Its more than money.

    The real problem is the EU has to go and be replaced with a constitutionally fully functional Union with proper checks and balances. We are just living through the symptoms of a dysfunctional EU.

    The EU is unstable, has caused and continues to cause great economic harm – particularly to the smaller geographically peripheral states. And it is run by people who are a threat to peace and security in Europe. They will be an even greater threat when they control the military and are in a position to impose martial law and suspend human rights.

    France is a heartbeat from that kind of instability. Other parts of the EU are in danger too.

    What is needed right now are people to take the issues to the politicians via social media and embarrass them such as on their Twitter feeds.

    Regarding Brexit this is an example:

    “Brexit Agreement invalid. Barnier broke EU law: ‘I’ll have done my job if the deal is so tough ..the British … prefer to stay.’ We all go over the edge together regardless. https://cliffordmillerlaw.wordpress.com/

    It is not for the author of the arguments to blow his own trumpet. If others agree it would it be appropriate for them to do it.

    The EU and only the EU is to blame for the current position in the UK Parliament. They blatantly broke their own law to put the UK in an invidious position when they should do the opposite.

    The public need to know. States like Latvia, Estonia and Lithuania have lost all their young people – they left to get work and have been sucked into central wealthy states like Germany. Those countries are getting old and they are literally dying on their feet. We have problems all over Europe economically and in terms of political stability. The PIIGS – Portugal Ireland Italy Greece and Spain. Italy is in economic trouble. Germany is facing a downturn. The French are on the streets every weekend rioting – its something to do when Macron has ensured they can afford to do nothing else.

    The EU and the ridiculous pointless damaging policy of austerity coupled with the poorly managed introduction for freedom of movement are prime factors.

    Tusk, Barnier and Juncker are law breakers. The state of the EU is so poor and so serious they should at least be kicked out of office and ideally if it were possible imprisoned for a good long time.

    As for Brexit the Principle of Proportionality obliges the EU to justify under EU law abusing Article 50 to force a Treaty on the UK which is tougher than when the UK was a Member State. And then they have to explain refusing to negotiate under Article 50 fundamental aspects until after the UK had left the Union when that is too late.

    Breach of Article 50 is I believe the best starting point. It would not be the only basis. Claims on the basis of disproportionality applied to rights enshrined in the Treaties [ie. here Article 50] tend to be construed strictly, with the consequence that there will be a searching inquiry by the Court into suitability and necessity. The EU would be on the back foot. They need to be forced to explain publicly.

    There is much more illegality by the EU but I am sketching out here where I might want to start if I were in a position to do so.

    We need the rule of law. The alternative is the gun on the streets of Europe and that would be bad.

    Those behind the EU side of Brexit are pushing a plan which could easily see a resurgence of the Troubles in Ireland. That gives you an idea of what kind of people they are.

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    1. Hello again Mr Miller,

      Ah, you mean like the “Led By Donkeys” campaign, only using Twitter rather than billboards. It’s always good to hold all of those involved to account and confront them with any utterances that appear to indicate that their motives may not be entirely pure. Although, having failed to find the precise quote you mention, and so unable to ascertain the context in which it was uttered, I’ll have to reserve judgement on exactly what was meant by M Barnier when he said this. On the whole, his conduct during this entire process has been marked by a patient accommodation of the more outrageous demands of a succession of Brexit negotiators, often based on a seemingly tenuous grip of what Mrs May’s red lines meant in terms of what would be on offer to the UK.

      As far as I can see, there has been no breach of Art 50, which simply provides the mechanism by which a member state may exit the Union. It places no obligation on the EU to offer the departing member state a future trade deal that is equally as good as the conditions it enjoyed as a member. In fact, a little thought on this matter should make it evident that extending anywhere near as advantageous conditions to non-members as to members, would undermine the very foundations of the Union. The fact that people like David Davis and Liam Fox made it appear as if there was a possibility of things remaining much as they were, I’m afraid is more of a reflection of their ignorance, or disingenuousness, in their communications with the public.

      Also, technically it was impossible to negotiate a future trade deal with the UK while it was still a member. The Treaty specifies that the Withdrawal Agreement negotiated during the two year period should take into account the “framework” of the future relationship. This is sensible, in that it is only when the Withdrawal Agreement has been finalised that the detailed aspects become clear of what is to be negotiated in terms of an extensive trade deal (for which two years is self-evidently far too short a term).

      Obviously, this process could have been accelerated if the UK demands and red lines had not been entirely internally inconsistent (also known as “cakeism”). Unfortunately, it was actually slowed down by the complication of the Good Friday Agreement, an international treaty entered into by the UK which has enabled peace on the island of Ireland on the basis of joint UK and Irish membership of the EU. To me, this is one of the more incomprehensible aspects of the whole sorry Brexit saga.

      It should have been obvious even before the referendum that any Brexit worthy of the name, would detonate a bomb underneath the fragile peace in Ireland. David Cameron had no right to call that referendum without putting safeguards in place to guarantee that the UK would continue to abide by its obligations as laid down in the GFA. Now that half the electorate has chosen a path that was offered it by ignorant/unscrupulous/venal politicians (delete as appropriiate) who are – still! – being paid to avoid putting the country in horrendous positions exactly like this one, the Brexit advocates are too cowardly to admit that they offered something that could not be had without others paying a very high price. This includes not just (Northern) Ireland, but Scotland too, as well as all UK expats on the EU mainland and EU citizens who’ve made their lives in the UK.

      Just as an aside, the backstop as incorporated in the WA is there as a result of a special request from Theresa May. If she hadn’t made herself beholden to the DUP for the continued existence of her government, the border could have been in the Irish Sea. Still not ideal, but better than what she proposed eventually. The same goes for the transition period, during which the UK will have to abide by its membership obligations without having a seat at the table where the decisions are taken. Again, a direct result of a request by the UK, because they realised the country was nowhere near ready to stand on its own two feet. Not surprising after 40 years of integration, but again utterly predictable, and only solved by the generosity of the EU.

      The points you mention as disadvantages of the EU are interestingly enough exactly the same factors that contributed to my family leaving England and relocating to continental Europe last year, after 23 years there. The brutal austerity measures initiated by Cameron and Osborne, on a purely ideological basis, squeezing those who could afford to lose the least, squeezing healthcare, squeezing education; the utter, callous, disregard shown by Theresa May for the human rights of the Windrush citizens; the complete refusal to put a few simple measures in place, adopted by most other EU countries, which meant that freedom of movement caused far more trouble in Britain than elsewhere in the EU where it’s overwhelmingly seen as a positive thing.

      The EU is far from perfect, but it is constantly renewing itself. And one or two countries out of the Union would not be able to impose far-reaching fundamental changes on other member states against their will the way England has done to Scotland and Northern Ireland by forcing Brexit on them.

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  6. Hi A Pollington,

    Thanks for your view of history. I have seen many on all sides of the debate coming to recognise there are fundamental problems with the Union as currently constituted.

    Brexit seen in context is a symptom of those problems. It is not the British. It is a symptom just as the gilet jaune in France are and other social, economic and political problems across the EU along with the rise of the far right across the EU.

    Neither the UK nor the EU leadership come out of the present mess with much credit. Its the people who always end up paying the price.

    It is a mark of the competence of the UK leadership and media that the EU has so far escaped being called to account.

    The current games are a distraction from what is wrong.

    So let us see what is known about the EU leadership just before Brexit – and remember the EU is roughly only two decades old and in that time has lurched from crisis to crisis whilst being the architect of a factual matrix which underpins social, political and economic problems across the EU geographically and politically for the PIIGS and from the Baltic States in the North East to Portugal in the South West.

    Turn the clock back only a few years in the EU’s history to 2015. The year before the Brexit referendum – that is how close in time the EU’s woes are linked. It is not coincidence. It is mismanagement.

    Even you rail at austerity which is also not just a British problem but describe it as such “The brutal austerity measures initiated by Cameron and Osborne”.

    Austerity is a ridiculous and damaging EU wide policy forced on Member States. It has much to do with what is happening across the EU today. The losers are the people and it is taking Europe into conflict as now seen in France.

    Austerity is deliberately imposed. The overall political objective is not clear but the symptoms of it we see in France and across the EU are and were a predictable outcome. Brexit is a predictable outcome – the ultimate expression of dissatisfaction with the EU.

    Are the problems it has caused intentional or merely a by-product of creating more wealth for the very wealthy? Is the social political and economic destabilisation an objective or side-effect?

    Economist Professor Yanis Varoufakis former Greek Finance Minister and someone of ability wrote of his experience of negotiations with the EU during five months in 2015 during the Greek debt crisis:

    “…. a titanic battle is being waged for Europe’s integrity and soul, with the forces of reason and humanism losing out …. to growing irrationality, authoritarianism and malice. ….. Europe has twice in the past hundred years dragged the planet down into an appalling quagmire. It can do so again. ….. Leonard Schapiro … on Stalinism: … ‘the true object of propaganda is neither to convince nor even to persuade. But to produce a uniform pattern of public utterances in which the first trace of unorthodox thought reveals itself as a jarring dissonance.”

    ….. I bore the brunt of precisely this type of propaganda. My attempts ….. were met with a concerted effort to turn our sensible proposals into …. a jarring dissonance.”

    Angela Merkel during the crisis and in relation to it stated that we did not want to see another war in Europe. That is how bad it was then. The problems today are not much better.

    And there is a war taking place in the EU being fought without armaments and troops – at least not yet – France is on the brink.

    Brexit is one of the battlefields. It is not the only one and it is the people of Europe who are paying the price of this war.

    As with all wars there are costs.

    But some things never make it onto the balance-sheet.

    That root and branch reform of the political and administrative structures of the EU is thought to be needed by some on the one hand and on the other the frustration that it would ever occur with the system as it is, is another aspect. Uncertainty about the social, political and economic stability of the Union is another factor.

    And how can one put a price on this? A Syrian in a rebel enclave was asked why he was fighting his Government and he answered that freedom is too important. Easy to forget its importance after many decades of relative [but not absolute] peace in Europe. There has been war and it was NATO which was deployed in case the conflict spread. It was not the EU nor its predecessor. That did not prevent war in Europe.

    What has kept the peace in Europe has been increasing prosperity and economic development since the 1939-45 conflict. Neither the Common Market nor the EU were the cause of that. It would have happened with or without them.

    What is causing lack of prosperity and economic problems is the EU and its austerity. The EU is turning into the architect of new conflicts flaring up in Europe. The clock is ticking. It is just a matter of time.

    The irony is acute that the EU wrongly attributed with being a mechanism for peace whilst being the architect of the new conflicts.

    And put a European army at the disposal of Brussels and we will be on the brink of tyranny. The very kind of tyranny of governments Thomas J described in the context of the right to bear arms under the US Constitution.

    As for your perspective of the history of the Brexit negotiations: “a patient accommodation of the more outrageous demands of a succession of Brexit negotiators” is not accurate.

    From a very early stage the Prime Minister’s government conceded practically all the demands of the EU. There was rapid capitulation by the UK including to the payment of £39 billion without knowing what the framework of the future trading relation was to be.

    And the context of what Barnier said could not have been clearer: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

    You however write: “I’ll have to reserve judgement on exactly what was meant by M Barnier when he said this.” And then go on to praise him.

    You go on to write: “As far as I can see, there has been no breach of Art 50, which simply provides the mechanism by which a member state may exit the Union.”

    I cannot tell quite how far you can see. What I can say is that since I last posted here the validity of my legal arguments on the lawfulness of such conduct is coming to be accepted by others with the knowledge to appreciate the legal niceties.

    You write “you mean like the “Led By Donkeys” campaign”.

    No I don’t.

    Please don’t mention ‘May’ again. That is as close to a four letter word as you can get for the numerically challenged but linguistically gifted. Much the same could be said about “Davis” as “Fox”.

    And her “red lines” came long after the Withdrawal Treaty text had been finalised so again your version of the history needs attention. The finalised version of the Treaty was since then approved by the EU Parliament and in November last ratified by the Council.

    I disagree that “In fact, a little thought on this matter should make it evident that extending anywhere near as advantageous conditions to non-members as to members, would undermine the very foundations of the Union.”

    Why should it? Non-members cannot be full participants and can play no part in how the Union develops. Non-members are thus seriously disadvantaged.

    And a moment’s thought reveals the wisdom of such an approach. It is better to have a club of contented members than malcontents so not forcing membership of those who wish to leave is a sensible approach – more likely to lead them to return – and in the negotiations one can create a framework to ease the return whilst in the interim effecting change to ensure the club is suited to the common objectives of its membership. A golf club with inadequate golfing facilities is likely to lose members to a club with better facilities but it can regain them if it puts needed change into effect.

    What you are really saying is that the Union is an unhappy club run by individuals with issues which raise doubts over their suitability and a track record of failure such that the only way the club can stay together is by shackling the members in an economic prison – neither content to be in and worried of the consequences of being out.

    The EU would be a better place if its Member States were content to be members rather than being locked into an economic cage with a key inside but from which they fear to escape. Like a caged bird remains even when the cage door is opened.

    This makes no sense “Also, technically it was impossible to negotiate a future trade deal with the UK while it was still a member”.

    “Negotiate” is form of talking. How can it be impossible for the UK and EU representatives just to talk to each other? And the UK is still a member and was when people were talking about Norway + and Canada + and suchlike.

    In fact it is actually impossible to agree the framework of the future relationship without agreeing the principles of what the future relationship is to be. So again what you say about it being impossible to talk is not consistent with the express requirements of Article 50 for the parties.

    This also is a non sequitur and logically flawed: “it is only when the Withdrawal Agreement has been finalised that the detailed aspects become clear of what is to be negotiated in terms of an extensive trade deal.”

    It is necessary to know the framework of the future relationship in order to agree what must be done to withdraw.

    And Article 50 addresses the future relationship – which does not necessarily include a “trade deal”. It does include things like continuing co-operation on security, arrest warrants, air and other travel.

    You don’t need to withdraw from arrangements which are agreed to continue after withdrawal but you do need to know what the future relationships are to be to agree about them.

    This is not correct: “Obviously, this process could have been accelerated if the UK demands and red lines had not been entirely internally inconsistent (also known as “cakeism”).” How can this be accelerated? The red lines did not appear until late in the day after the Withdrawal Treaty had been agreed by the UK’s negotiators but not by the UK Parliament. And thank all that is good it was not left to the Prime Minister and her Cabinet.

    “The EU …. is constantly renewing itself.” It is not and that is a fundamental problem already noted above.

    I will not continue addressing further lacunae. It has been an interesting exercise despite all. And thank you for your comments which have required me to think about the issues and refine my thinking further.

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  7. Mr Miller, please check your basic facts.
    Theresa May’s Lancaster House speech (Jan 2017) set out the UK’s red lines (end to freedom of movement, no major financial contributions, no jurisdiction of ECJ, etc.). Fair enough in itself. There’s very little sense in leaving if you’re still going to be largely bound by membership rules.

    Obviously that has consequences for the type of future relationship the EU can offer.
    Michel Barnier summarised the available options in an easy-to- follow “stairway to Brexit.” (Dec 2017). The fact that this had to be spelled out well after Art 50 had been triggered would be highly embarrassing to any normal government.

    The Lancaster House red lines lead directly to a “Canada”-type relationship. The UK could have gone for that, but at such short notice its economy was not at all prepared for such a dramatic shift in the relationship with its closest trading partners. JIT delivery systems etc.

    Hence the Transition Period begged for by May, and the customs union-type arrangement in the WA (Nov 2018). By the way, the 39bn was monies owed on the basis of commitments entered into before the Brexit vote. It’s not a great advertisement when starting out as an independent trading partner, to be seen to be reneging on previous contracts.

    None of the Members are unhappy to be in the Union, not even, I would argue, the UK. This is evidenced by the closed ranks of the 27, who would much rather protect the continued functioning of the Union than break ranks to prevent individual losses resulting from Brexit.

    The very fact that the UK is finding it so incredibly hard to leave is due to the tremendously advantageous relationship it has with the other 27.

    The unhappiness inside the various EU nations is a result of the present dominant economic dogma, which has led to large groups of each national population being “left behind” or disadvantaged. This is a result of individual choices by national governments. The Cameron and Osborne (and, let’s not forget, IDS) measures taken against the weakest in British society are worse than any other in Europe.

    The gilets jaunes protest against their own national government. They have not been misled into thinking that the EU is at the root of all their problems.

    Greece was a separate matter. There, successive governments went a bit mad with the credit card and built up unsustainable amounts of debt, which had to be repaid. Very unfair to the average citizen, but still Greece as a whole decided to remain in the EU. Much as I like Yanis Varoufakis and his ideas, they were just not workable in the position that Greece found itself in and (perhaps more importantly) considering the position that it wanted to be in.

    PIIGS have always struggled; the drawback of being Eurozone members, for them, is that they no longer have recourse to their traditional way out of difficulties by devaluing their currency. Again, in none of those countries is there a majority in favour of leaving the EU.

    There isn’t even one in the UK, I’d wager, once all the protest votes against the government of the day and the votes based on misunderstanding what the EU is and what it does and doesn’t do, are taken out of the equation.

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  8. Hi A Pollington.

    Thanks but I don’t need to check the facts.

    Red lines in Jan 2017? They vanished well before November 2018. The Withdrawal Treaty had been agreed by all concerned before November 2018 including the UK’s negotiators which is why it was put to the EU Parliament and ratified by the Council. So the next stage was approval by the UK Parliament.

    For example, the Withdrawal Treaty is littered with references to the CJEU as the court having legal jurisdiction. That Red Line became pink, fuzzy, dotted and washed out very early on.

    This is all a very messed up analysis. A transition period was always in contemplation of all concerned. The only time it would not be necessary is if the UK crashed out with no Treaty on 29th March. A transition period is fundamental to a managed orderly withdrawal. The first leg of Art 50 is agreement on the withdrawal and the second leg is agreement on the framework for the future relationship.

    I am not spending more time on picking apart the rest of the analysis such as gilet jaune and which member states want to leave but fear being out rather than in. It is well recognised there are structural, constitutional, political and administrative problems with the way the EU is set up. And Ireland, Austria, Greece, Italy, Hungary and the Baltic States either have had to debate the matter of leaving or are discomforted by many of the implications of membership the EU.

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