The Right To Self Determination

How many times have we all read that Catalonia and Scotland have a right to self determination?  I would reckon thousands of times, probably hundreds of times just in the last week or so.  There are countless Yes blogs and tweeters reiterating this right by the second but does this right really exist?  What is the source of the right?  To whom does the right apply?  Let's find out together.

This particular post is going to address the rights of  any people to seek self determination. Before we crack on with the show please remember not to shoot the messenger.  There are uncomfortable truths in this post (I found some of them uncomfortable) and long-held assumptions will be challenged (mine certainly were) but I am neither a fascist nor a Nazi enabler. The same is just as true of Jean-Claude Juncker and Guy Verhofstadt.  In fact, can everyone please stop calling everyone else Nazis because the sitaution in Catalonia regarding free speech and journalistic freedoms is actually rather dire and that comes just as much from the independence movement as any other.  If we can all just calm down we might stop fanning the flames.  Now that disclaimer is out of the way let's crack on with the legal right of peoples to seek self determination.

The Right To Self Determination

Does Catalonia have a right to self determination?  If it does have this right and that right is being denied then maybe the EU should really be bolder here.  The problem is that that Yes tweeters and bloggers talk about the right to self determination but I'm not absolutely sure what they mean.  Is this a moral right?  Moral rights are a bit vague for me because we all have different moral standards and it is almost impossible to adjudicate on that.  Every story has two sides, after all.  I really need to see that right written down in some kind of document that we can all recognise, perhaps something from the United Nations in the form of a declaration.

If I'm going to understand the legal consequences of any document I'm first going to have to understand the terminology used in it.  Words like "people" and "self determination" itself pop up all the time so we need to try to understand what they mean before we can try to to decode any legal document on the topic. What is a "people"?  More to the point, what is "alien subjugation" when it's at home?  Many tweeters talk about "the people of Catalonia" but do they mean it in a legal sense with respect to a legal definition of self determination provided by international law? We're going to have to find out by looking at the source documents.

The UN has a number of historical declarations that refer specifically to self determination.  Modern tools like google search make it embarrassingly easy to find these declarations.  It didn't take me long to stumble across Article 55 of the Charter of the United Nations and the Declaration on Colonial Independence and the Declaration on Friendly Relations.  I'm basically stupid but I'm also tenacious so I spent a few hours working my way through them taking notes, going over sentences again and again until they made sense.  It turns out that the key sections of text are actually quite short but after reading them I was left more confused than I was at the start.  The problem is that they are self contradictory, introduce terms that are never defined, and sometimes vague.  I started to wonder if my basic stupidity had triumphed over my tenacity until I stumbled across an academic history of self determination as a legal term. This has proved a valuable resource in that it turned out I wasn't quite as stupid as I thought: these declarations are confusing and self contradictory.  Moreover, understanding the historical context of the declarations really helped to clarify the legal intentions and their possible interpretations.  I've borrowed my understanding of the timeline from that history of self determination so I obviously urge everyone to read that at their leisure.  You're not getting off that easily: I obviously urge everyone to read the UN declarations as well.
 

 League of Nations

We  now think of it as a legal right but self determination actually started out as a principle.  Woodrow Wilson was one of the first prominent figures to make pronouncements about self determination when in 1918 he declared,

"self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."  

Self determination was in the air back in 1918 but it wasn't yet a legal concept.  With the reshaping of borders in Europe being determined by blunt political needs rather than the needs of "peoples", laws were surely needed to help out here.  It's just that there weren't any.  The League of Nations didn't have any laws on self determination, even though it made positive noises at the time.  Self determination was no more than a principle and certainly not a right defended by international law.  The case of the Åland Islands gives a flavour of the times and the ambiguity that surrounded self determination. 

In 1945, the League of Nations was replaced with the United Nations and the Charter of the United Nations was signed to mark its inauguration. Article 55 contains the only significant mention of self determination but, to be  honest, it isn't very helpful in determining whether Catalonia can claim a legal right to govern itself.  I urge everyone to read that for themselves.  It is short but also short on the kind of detail that might be of any use to anyone whatsoever.  When it comes to moving from an ambiguous principle to a definitive right, the UN wasn't any more effective than the League of Nations.

Decolonisation

The idea that self determination could be a legal right really took root in the 60s and 70s with the end of the European empires.   The United Nations took a leading role here with its "Declaration on Colonial Independence" in 1960.  I've read through this a few times and it is a confusing document.  It turns out that it is confusing and contradictory and my handy historical guide confirmed it.  The declaration makes significant reference to an unconditional end to colonialism and is entirely about ending colonialism but then paragraph 2 declares the right  to "all peoples". 

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

 Hmm.  It does not define "peoples" but it does give caveats to those rights: "freely determine their political status and freely pursue their economic, social and cultural development".  Does that sound like an attempt at a definition of colonial rule? It might be but I honestly don't know. Catalonia isn't under colonial rule and I really cannot argue that economic, social, and cultural development is denied to Catalonians. What about political status?  This strikes me as another vague term.  Spain is a democratic nation with local, regional and national elections.  Does that count as determining political status?  I don't know.  It would only be clear if it specifically mentioned the right to form an independent state or a right to national identity or something like that.  Perhaps it can be argued that the intention of the declaration is only to be used within the context of declonisation.  On the other hand, perhaps the authors really intended a wider application of the declaration. I don't know about that. I'm not a lawyer so please make your own judgement. We can say for sure, though, that it has only been applied within the context of decolonisation. I think we can all agree that Catalonia is not a colony of Spain.

What else is confusing about the Declaration on Colonial Independence?  In paragraph 5 it suddenly introduces the concept of Non-Self-Governing Territories but up until that point it had been entirely about "peoples". 

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

 Are "peoples" and "Non-Self-Governing Territories" the same or do they mean different things?  Could a territory contain multiple peoples?  Could a people span multiple territories or incorporate partial territories?  Do people take legal primacy over territories?  We'll actually get to some of that later but this analysis has a narrow focus so I'm only going to worry about it if it pertains to Catalonia.  A Non-Self-Governing Territory is one that is subject to the process of decolonisation.  Catalonia isn't on the UN's list so we can just ignore this ambiguity within the context of this specific declaration.
 
There is yet more confusion in the Declaration on Colonial Independence.  This is the first time that we encounter the term "alien subjugation".  What does it mean?  I honestly don't know but a google search did point me to a compilation of erotic fiction of dubious literary merit.  It may be well be a fantastic read with "perfect tales dripping love, romance, and seduction" but that doesn't really help.

It's time to take a quick breather.  We're nowhere near a modern interpretation of self determination but I hope we're all getting a sense that this is complicated stuff.  Even attempts at sorting out the specific case of decolonisation ended up being filled with ambiguities, undefined terms, and confusions of legal primacy.

Friendly Relations 

 

In 1970, the United Nations adopted the Declaration on Friendly Relations.  Reading about this online leads me to believe this is the legal gold standard for a definition of self determination.  Is it also a confusing and contradictory document?  Yes, it is but far less so than the preceding Declaration on Colonial Independence.  We're going to dive in and we'll be underwater for some time so take a deep breath and steel yourself.

The declaration has a specific section on self determination and it begins with a near reiteration of a statement we've already seen in the Declaration on Colonial Independence

 "...all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development...".  

This isn't exactly unambiguous because it doesn't define "peoples" or "political status". Let's read on to see if it all becomes clearer.  The declaration then goes on to state the aims of self determinism.  The aims are to create friendly relations between States and to bring a speedy end to colonialism according to the wishes of the peoples involved.

1. To promote friendly relations and co-operation among States; and
2. To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

This sounds like a very narrow focus is intended here so this is perhaps a clarification of the  Declaration on Colonial Independence.  That idea is undermined by a later paragraph, which seems to suggest a much wider focus.

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

This certainly suggests that self determination includes the establishment of an independent state and it might even be argued that Catalonia falls under the category of a people with that right. This looks really promising but we're not at the end yet.  This document follows a cohesive whole, like all legal documents, so we need to read every last line.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

This paragraphs basically says that the principle of territorial integrity or political unity takes primacy over the right to self determination except in the case where a people is attempting to escape the clutches of a government that discriminates on race, creed or colour.  It's clear to me that Catalonia does not have a legal right to self determination under the Declaration on Friendly Relations because the territorial integrity of Spain trumps everything.   The only conditions under which Spain's territorial integrity does not take precedence over Catalonian rights to self determination would be if it discriminated by race, colour or creed. Spain categorically does not do any of that in Catalan.

 

Conclusion

It's a rare event indeed for this blog to draw a firm conclusion but it really seems as though Catalan does not have an automatic legal right under UN law to claim self determination.  The same is true of Scotland.  If Catalan's leaders thought it did have that right would they not have tested it at the International Court Of Justice?  I obviously can't be sure but I think it is telling that it hasn't happened.

I feel like I've uncovered an uncomfortable truth.  I had always assumed that the right to self determination was enshrined in international law and that there was a legal conflict between the Spanish constitution and international law.  I was completely wrong; I can't see any conflict here at all.  Something similar happened when I tried to find an EU law that Spain had broken by denying the Catalonians the right to hold a referendum.  I expected to find an appropriate law but I couldn't find any such law because no such law exists.  Only then did it become clear why the EU was floundering around looking generally like useless idiots.  The situation with the UN, however, goes much further than that: a law does exist and it expressly does not provide for the legal right to self determination, except in specific circumstances that to not apply in this instance.

If the Spanish government hasn't broken international law and it hasn't broken EU law then it is useful to ask if it has broken Spanish law.  For example, is it doing anything that runs counter to its constitution? I'm trying to work that out right now and it will likely be the subject of my next post.

PS  Do whatever you want this post but in light of this report please stay calm so as not to fan the flames. Do please read the report from Reporters Without Borders. It is a genuinely sobering read.

Disappointed

It's been a disappointing few weeks, to be honest. My melancholy can be sourced to the countless Yes blogs and twitter accounts that are busily working themselves into a right old fury about the EU. To make matter worse, it seems that reason is in short supply whenever the EU is involved. Debunking one myth only leads to a hundred others resurfacing in a latent anti-EU rage. Most of this anger stems from a fundamental misunderstanding of the function and limits of the EU. To add to the mix, however, we have rehashed arguments from the Lexit crowd working in tandem with an almost Orwellian "EU bad" instinct.

I've seen outlandish arguments that Scotland should definitely join EFTA because the EU is "neo liberal". Switzerland may be as much old money as it is nouveau riche but I'm here to report that it is most definitely not a hotbed of radical socialism. After all, a founding member of an organisation called the European Free Trade Association is every bit as likely to be "neo liberal" (whatever that might actually mean) as the European Union. Despite all that, EFTA has an inexplicably high approval rating in the independence movement.

Then there's the old chestnut of Article 7 of the Lisbon Treaty.  This one has been debunked by hundreds of twitter accounts and blogs but it just refuses to die.  I'm starting to dream about a post-nuclear landscape with thousands of Scots shuffling around in the freezing cold,  spluttering half-remembered grumbles about the Lisbon Treaty from their melted faces.
 

Someone please invent digital Domestos to kill wrong-headed ideas stone dead.

Can we do better?  Well, apparently not.  This next one comes from the top, from someone whose job it is to know all this stuff, from someone who knows full well the power of words and their ability to misinform. Why is this important? Well, it's because peaceful political protest is being thwarted by the Spanish government and Angus B MacNeil used that to make a political point rather than to direct genuine concern and anger towards the politicians and institutions that could actually do something about it.

I notice they're not in a jail in the UN or NATO or WTO or OECD or G12.

 

I'm afraid we're not finished with Angus B MacNeil.  He followed up this with this zinger for the Guinness Book of Stupid.

Make up your own caption please, I'm lost for words.

 Who can forget the good times over at commonspace?  The EU, apparently, risks turning support against itself simply by merely adhering to all of its rules and laws as laid down by its own membership. Just in case we're worried about journalistic credentials, it was written by a self-styled EU guru with a "... good understanding of Europe’s operation, positives, and shortcoming [sic]".  Sadly,  the author didn't have a good understanding of very much at all and proceeded to hack away at the "EU bad" boilerplate with bizarre conflations and confusions of European institutions and the limits of their power.  Is this the best we can expect from digital journalism in the 21st century?   Commonspace has the resources of more journalists than any blog; it can pick and choose its own news agenda; it doesn't have to rush to publication; it has the freedom to publish links and data; it can readily publish corrections.  This is the best it can do?

What has frustrated me most? The lack of nuance; the almost willful disregard for the trade-offs involved; the inability to realise that decisions have consequences both good and bad; a rejection of source documents; ideological knee-jerk winning over the reality of messy compromise that reflects the experience of our very own lives. I'm so completely fed up with this so I'm going to halt my countdown of shame.

This is a tiny blog with a very specific audience who are interested in source documents, complicated arguments, discussions about the relative merits of trade-offs.  If you're reading this blog then you're interested in nuance and debate.  There are, of course, reasons not to join the EU and I'm happy to listen to them because they really exist and I've only thought of a minuscule fraction of them. I've  even posted some of the ones that occurred to me on this very blog.  I'm happy to say that many commenters here have posted their own reasons not to join the EU.  If only the rest of the independence movement was even a tiny bit like that.  They probably are in all sorts of respects but any mention of the EU or Europe seems to trigger a brain melt-down.  "EU bad" is not a valid argument.
 
I honestly don't know what to say.  The myths spread by the anti-EUers of the left and the right have taken root.  It feels like they've won and no amount of argument can shift that view.  I'm frustrated, I'm disappointed, I'm worried that a groundswell of uninformed opinion is creating an environment where the wrong decisions will be made for all the wrong reasons.

Over and out,

Terry

PS I did promise that this blog would follow the emotional rollercoaster of Brexit.  Well, this is the latest update.

PPS I deliberately heightened the drama to make this more fun to read. Everyone likes a bit of drama, right?  I am a little bit fed up, though.


Update:

This is wider than I'd ever imagined so I thought I'd start a gallery of the kind of misinformation that is being spread by Yessers.  I can't even be bothered redacting the tweet accounts. I'm not even sure why I bothered in the first place because they are all in the public domain.

Here's the first.  Note the 56 retweets and 66 likes.

66 likes. 58 retweets.  Oh dear.

And another. 

27 retweets. 23 likes. Still early days.

BEING ANGRY AND GENERALLY LOOKING LIKE YOU'RE LOSING IT DOESN'T GET YOU MANY RETWEETS.  And here's the proof.

I do know why and I did respond but I suspect his head has already exploded. 

Stay tuned for more.  I need to get back to work now.

It's the weekend now and this one is just too good to miss.  If the EU genuinely intervened to undermine the written constitution of a democratic nation without recourse to democratic accountability, what would you call that?   Answers on a postcard to Mr Malky.

 Well, that escalated fast.

When you run out of arguments just go for an ad hominem attack because that always helps.

Initially, I was just "pious", "peurile" and an "uncritical buffer".  It''s a short step to being a repulsive Nazi enabler.

What Can The EU Actually Do?

My last post on the limits of EU authority turned out to be slightly controversial. This time I'm going to dial up the confrontation to a huge 2.5/10 by continuing on the same theme as last time.  That theme, of course, is the thorny issue of the EU's muted response to the appalling scenes of police violence aimed at undermining a democratic process in Catalonia. Before we proceed I just need to make it clear that if I was from Catalonia and didn't have a strong view on independence prior to last Sunday I most definitely would have one now. The actions of the Spanish government were so appalling that it is all but impossible to support the constitutional status quo. The question is what the EU can do about it today and what it can do in the longer term.

I'm going to start by repeating what I said last time: nobody in the EU has the power to speak out about Spain's constitutional or policing arrangements on behalf of the EU or its membership. There are plenty of opportunities for MEPs to speak out in an individual capacity; party groupings in the European Parliament can formulate policy on the issue;  parliamentarians across the EU's membership can say exactly what they want. National governments can also speak out but already the toing and froing of the many coalition arrangements starts to limit their ability to do so. You know what? We've seen all of this happen. It's disappointing that it didn't happen more but we all get to participate in the election of our political representatives. People of Europe, you know what to do. The key question is whether there exists an office holder of the EU who can speak out on behalf of the entire EU on the narrow issue of Spanish policing? Is there an institution of the EU that can formulate an immediate political view on the constitutional affairs of a member nation? Is there an individual or institution of the EU that can take immediate punitive measures against the Spanish government without consultation or formal investigation? The answers to all of these questions is that no such individual or institution exists. The EU is a union of collective action through consensus rather than a government itself. The only power it has is the power given to it by its membership.

The EU's areas of competence are really quite wide but they also have their limits. In each of these areas of competence the EU acts by creating laws that are either directly applicable (Regulations) or by issuing instructions to national governments to add laws to their legal framework that uphold agreed specifications (Directives). Extending the range of competences can be achieved by amending treaties or creating new ones. I think everyone has heard of the Lisbon treaties. This was a prolonged round of negotiations that attempted to extend the range of the EU's competences. It was controversial, to say the very least. Attempts to create a European Constitution were abandoned after France and the Netherlands rejected it at referendum. Attempts to introduce a raft of crime and justice initiatives were rejected by the Irish and only accepted after guarantees were made about the scope of their legal interpretation. The UK, of course, opted out of most of the crime and justice initiatives but then opted back in to some of it after Theresa May decided that the European Arrest Warrant had more positives than negatives. The key point is that the European Commission doesn't just plan a power grab of extended competences before forcing it on its membership. The EU's competences are limited to those powers given to it by agreement of its membership.   Here's the crunch: the EU does not have a mandate over policing or constitutional affairs because nobody gave it that power. It's hard to point at Spain and say that it broke EU Regulation 9711 (Police forces of the EU)  paragraph 7 section c because nothing like that exists. The Spanish government and the Spanish police might have violated Spanish law but that is purely for Spanish courts to decide in the fullness of time. I just want to point out that Spain has not yet suspended its legal or judicial systems.

Many commentators have pointed out the possibility of human rights violations in Spain.  Specifically, the adoption of the "Charter Of Fundamental Rights Of The European Union" has been mentioned.  The Charter certainly enshrines the European Convention on Human Rights (ECHR) into EU law but in a very limited way that does not extend to Spanish policing.  What does the Charter actually do?  Well, it actually has several consequences.  The first is that it forces EU institutions and bodies to uphold the ECHR.  Secondly, it ensures that directly applicable EU law upholds the ECHR. Thirdly, it ensures that the implementation of EU law by member states does not in any way violate the ECHR.  Finally, it allows citizens to take their own government to  an EU court if the ECHR has been breached but only within the limits I just described. I'm just an amateur blogger but my conclusion is that the Charter is limited to the competences of the EU.  It does not allow a citizen of a member state to take their government to an EU court (I would guess that would be the Court of Justice of the European Union) unless it involves a question related to EU law.  Spanish policing is not an EU competence, it does not involve the implementation of EU law and it does not involve directly applicable law.  Spanish policing is a matter for Spanish courts rather than EU courts.  This isn't what we want to hear but I'm afraid to tell you this is what was agreed in the Lisbon treaties.  The suppression of the referendum in Catalonia falls beyond the competence of EU courts and the adoption of the Charter does not change that.

 All EU nations must also be members of the Council of Europe.  That means upholding the European Convention on Human Rights and recognising judgements made by the European Court of Human Rights ((ECtHR).  If a member nation was found to be in contravention of the ECHR and refused to accept the judgement of the ECtHR then they could be suspended or expelled from the Council of Europe.  Membership of the Council of Europe is a basic EU obligation so EU membership would also be suspended.   There are three things to think about here. The first is whether Spain has acted in a way that violates the ECHR. The second is whether Spain rejects the judgements of the ECtHR and effectively suspends its commitment to a definition of human rights shared across the EU. The third is whether the EU will recognise that action as a breach of Spain's obligations and proceed to suspend or expel Spain from the EU. Many readers here have read other commentators make definitive statements that human rights have definitely been abused and that the EU must take immediate and punitive action against Spain as a consequence.  I hope I've given some flavour of the arguments against that already but I'm going to go into this in a bit more detail in the following paragraphs.

Has Spain contravened the ECHR? That isn't immediately clear. There are many commentators who are a) clear in their minds that human rights have been violated and b) believe that the EU should immediately accept that view as a binding legal judgement. My sympathies lie entirely with the Catalonians but I am not a human rights judge tasked with upholding a complicated matrix of rights and a mountain of case history. Like almost everything, human rights are complicated and in many cases judgements must strike a delicate balance. For example, I have the right to religious expression but do I also have the right to wear religious symbols at work? In this case, Spain has the legal right to protect its territorial borders and the right to use force to do so.  This isn't what we want to hear but I'm afraid that protecting territorial borders is a basic duty of state. The Catalonians, on the other hand, have the right to request self determination and the right to free expression. At first glance this might appear simple but after 10 minutes of thought I hope we can all accept it is something more complicated than we first imagined. We cannot expect the EU to accept that Spain has breached its treaty obligations because it is not the EU that has the final word on human rights. The final word on human rights violations falls to the European Court of Human Rights. Until we have a judgement we can't expect the EU to do anything.  This is not going to happen today, next week or next month.  We need to be patient.

What happens if Spain is found to be in violation of the ECHR and then proceeds to ignore the rulings of the ECtHR?  Failure to uphold the ECHR is far from commonplace but it does happen from time to time.  That alone is not enough to suspend Spain from the EU - if it was enough then there would be very few states left in the club.  Failure to uphold the judgements of the ECtHR, on the other hand, is a much more serious situation because it suggests that violating human rights is a deliberate strategy rather than a disagreement on legal interpretation.  How often does that happen?  The problem here is that failure to uphold judgements also happens from time to time.  Failure is a strong word and I should qualify it with an example.  The UK government lost a human rights case involving a blanket ban on prisoner voting rights.  They lost the case but then Westminster voted down an amendment to UK law that would have implemented the judgement.  The UK government is in a precarious situation where it is a member of the Council of Europe but failing to uphold the basic obligations of membership: repeated rulings against the government have not resulted in a relaxation of the blanket ban.  Despite that, the UK remains in the Council of Europe and the EU (ok, not for long but that's another story).  A stalemate seems to have settled over the case with the UK making vague noises about future changes to the law and the Council of Europe issuing warnings that the UK needs to take action but without imposing any penalties in the interim.  I picked on the UK here because I happened to be familiar with the case but I'm sure the UK isn't the only nation struggling to implement the ruling on prisoner voting rights.  I'm sure some digging around would have brought up some other cases, too.  The point I'm  trying to make is that there are plenty of ways that states can prevaricate on implementing ECtHR rulings without being suspended from the Council of Europe.

The EU requires member states to be signatories to the ECHR and members of the Council of Europe.  The UK has for some years been in dispute with the courts of the Council of Europe yet it remains a member and a signatory to the ECHR.  It is likely not the only state in this situation.  For as long as the UK remains a member of the Council of Europe it can also remain a member of the EU.  That would also be true of Spain in the most extreme case I considered here.  Of course, suspension of membership of the Council of Europe would result in Spain being also excluded from the EU.  Article 50 was actually constructed for exactly this  kind of case - it was as much a mechanism to expel an unwanted member as it was a mechanism for a state to voluntarily leave.

In the case of the Catalonian referendum Spain has not yet been found to be in breach of the ECHR.  It has not yet put itself in a situation where it deliberately ignores the judgements of the ECtHR.  It has not yet been suspended from the Council of Europe.  My last post gave more detail on this point but it is also not immediately clear if Article 2 of the Lisbon Treaty has been breached and even if it was agreement about that would take time because the EU proceeds by law and process rather than knee-jerk reaction (see Article 7 of the Lisbon Treaty).

Why is everyone screaming at the EU?  It's because the myths of Farage and the Daily Express have taken root deep in society, even with people who are the exact opposite of Farage and the Daily Express.  The EU is not a federal super-state; neither for good nor bad has it all-conquering powers; Jean Claude Juncker is not the most powerful man in Europe.  We should be thankful for all of that because if the EU really had the powers to intervene in Spain we'd have created a terrifying undemocratic monster that would control literally every aspect of our lives without any hope of accountability.  Like all institutions, the EU is imperfect.  It has to juggle the needs of citizen and state, business and consumer, national sovereignty and harmonised law.  Over the years it has struck a balance between all of these competing requirements.  It is what it is but many think it is something else entirely.  That misunderstanding has directed anger away from the politicians and heads of government who could make a real difference and towards an institution that acts under legal constraints limiting its ability to take any action at all.

Over and out,

Terry

PS Alyn Smith lays out the tensions in the EU that lie between fast decision-making, consensus politics and the need to avoid a federal super-state here.  The EU is an imperfect institution but we need to remember that institutions are always imperfect.

PPS James O'Brien provides some great background to the situation here.

Update:  I had a bit of a rant over at commonspace on an article that finally tested my patience.

Update:  I'm going to be away for the next few days so I might be a bit slow responding to any future comments. Sorry about that.

EU Misconceptions

This is normally a lighthearted blog about the mess being created by the UK government and the hapless fools at the core of UK politics. I'm afraid I'm in a more sombre mood today after Sunday's shocking scenes surrounding the Catalan referendum. I don't want to go in to that too much because this blog is mainly about Brexit and Scottish independence. I honestly don't know much about the situation in Catalonia or any of the details that led to the referendum. Having said that, it barely needs saying that the manner in which the Spanish authorities crushed a peaceful and democratic campaign was made all the more chilling by the obvious parallels with the Scottish independence movement.

Paul Mason erroneously blames Juncker and the centre-right EPP grouping.

 What's all this got to do with the EU?  Popular opinion seems to think that the EU is either directly to blame for the unfolding horror or that it should intervene with immediate condemnations and threats of expulsion. Paul Mason, for example, was quick to blame Juncker and the centre-right EPP grouping in the European Parliament. I'm not sure what any of that has to do with Spanish internal affairs but politics is a nasty affair and any stick that can be used to prop up Labour's flimsy EU story seems to be acceptable to Momentum supporters. More nuanced but equally incorrect views came from a much wider group of commentators who felt that their support for the UK's EU membership had been betrayed by the institutions and individuals that make up the EU. That feeling of genuine sadness that the EU had somehow sided with the Spanish government by remaining silent on the issue was so prevalent that I'd like to explore it in more detail. What could the EU actually have done? Who would have done it? Which institutions might be responsible for restoring order in Catalonia? I hope we'll have some answers to these questions at the end of the post.

Totally understandable but anger must be better directed.

Let's start by thinking about the powers of the EU. What power does it actually have? Well, it only has the powers given to it by member nations and by the European Parliament. If the EU wishes to make a statement about Spanish policing then it will only do so if the member states get together and agree on that. Even if that was to happen it certainly isn't going to happen quickly because the EU works by process and law rather than by knee-jerk political gestures.  In the event that member states  decide to collectively give the EU the power to make statements about Spanish policing it will be done only with witness statements, legal reports containing references to EU law, and consensual agreement. That all takes time and cannot happen today.  We really cannot expect the EU to coordinate the opinion of 28 nations in real-time.

Even with consensus that something should be done could the EU actually intervene in Spain's internal police procedures?  This doesn't typically happen but if it did we'd have seen it already with the UK at the receiving end of the complaint.  The tragic case of Ian Tomlinson springs to mind.  Ian Tomlinson was a newspaper seller who was unlawfully killed by a policeman during a student protest in 2009.  Not only was police management of the protest in question but the forensic evidence provided at the trial was troubling, to say the least.  If there was ever a case for the EU to intervene then this was it. They didn't intervene, however, because this is beyond the competence of the EU.  In fact, the EU is  constructed in a way that stops it interfering with the territorial integrity of member nations.  The "federal super-state" that Farage and The Daily Express endlessly complain about is a myth and no more than that.

Let's imagine for a second that the EU does have the power to make immediate and definitive statements on the internal affairs of member states. Who might actually make that statement? After all, such a statement would be made on behalf of the entire EU but it would need to be made without proper consultation of its members.  The simple truth is that nobody has that power.  Jean Claude Juncker, President of the EU Commission, certainly does not have that kind of power because his role is administrative rather than political. Guy Verhofstadt is able to speak for the European Parliament on matters relating to Brexit but only because he was democratically appointed to that position by MEPs.  He certainly does not have the authority to speak for the EP on any other issue. He can, of course, speak in a personal capacity. In fact, many MEPs have spoken out with personal condemnations of the events in Spain. Perhaps in time we'll see political groupings in the European Parliament speak out with formal statements but that will take time. For today, the most we can expect is personal statements from individual politicians. Have we seen that? Yes, we have.

Alyn Smith is a SNP MEP.

What can the EU actually do? Well, Article 7 of the Lisbon Treaty provides for the suspension of membership if the conditions of Article 2 have been breached.  It's not at all clear that Article 2 has been breached in the case of the Catalan referendum so suspension seems unlikely and certainly could never be immediately implemented. Again, let's imagine that Article 2 had been breached in some way or other. What could the EU actually do?  Article 7 is quite clear that action requires the consent of the European Council, whose membership is the heads of state of the member nations.  We can forget about the UK having any influence here because, in case you hadn't noticed, it is scheduled to leave the EU at 11pm on 31 March, 2019. Even if that hadn't been the case, what would the chances have been of Theresa May spending time on this and staking her limited political capital on it? I would guess quite close to zero because it only opens the UK to all sorts of counter charges. It is honestly not hard to think of dozens of cases where the UK has let human rights slip down its list of priorities.  That leaves the other 27 EU nations such as Germany and Denmark and, yes, Spain. Anger and attempts at forcing action should be directed at heads of state rather than the EU.

In the above, I imagined a scenario where Article 7 could be invoked due to a breach of Article 2.  The difficult here is that Article 2 has not been obviously breached.  Of course, Spain might carry on down this path to the point that the rule of law is suspended. Perhaps we'll see the court system dismantled so that investigations can no longer be carried out independently of political interference or perhaps a group of Francoists will seize power and reject the systems of democratic accountability.  EU membership would surely become untenable under those conditions but none of those things have actually happened. Despite the genuinely awful scenes, Spain is not yet a fascist state.

I'm not a lawyer or an expert in international affairs but it strikes me that this is a problem of human rights and therefore more suitable for the Council of Europe rather than any EU institution. All EU member states are members of the Council of Europe and are consequently expected to uphold the findings of the European Court of Human Rights. If a Spanish citizen feels that their human rights, as laid down in the European Convention of Human Rights, have been violated then it seems intuitive that their first port of call will be the Spanish court system, followed by ECtHR if they still feel that justice has not been served. We mustn't forget diplomacy, either. EU membership does not impede any member state from wielding the power of diplomacy, no matter what Paul Mason might think.  I'm quite sure that is going on because diplomacy literally never stops.  It's a great pity that this has been left to Boris Johnson because this is an area where, until recently, the UK had a deserved reputation.

The EU is a collection of national governments rather than a government itself; it acts methodically by process and law rather than gut reaction; it works by consensus rather than "strong" leadership; it is a sequence of institutions with specific competences rather than a unified structure of power. There is no single person at the helm. None of that might be what you want it to be but expecting it to be something that it isn't and then complaining about it isn't going to help the situation in Barcelona.  The truth is that understanding of the EU is so limited that it has all too easily become the default scapegoat of the left and the right.   The EU didn't do this, it was the Spanish governments.  We mustn't forget that simple fact.

Over and out,

Terry

PS The Council of Europe, the European Council, the Council of Ministers, the European Commission, the European Court of Human Rights, the Court of Justice of the EU.  I know it's a lot to take in but we have to get on top of this.  Ian Dunt is 100% right here:  they get you with the boring stuff.

Fox: He's Got Magic

How's Liam Fox  getting along?  Why, he must be close to signing off on a bumper crop of FTAs by now.  After all, that is what David Davis promised back in 2016.  The job of making that happen fell to the hapless Liam Fox when he was appointed Secretary of State for International Trade.  Davis specifically promised a negotiated trading area 10 times the value of the European Union that would involve Indonesia, South Korea, Australia, New Zealand, the US, Canada, Hong Kong, China and India. They promised all of that by March, 2019.  Like charismatic salesman at a street market they also promised a deep and special FTA with the EU that would replicate all of the current advantages of EU membership but without any of those pesky obligations.  Depending on which spokesperson was available at the time, our putative relationship with the EU was described as akin to Canada (with its CETA FTA) or similar to Norway (membership of EEA) or it would be like Switzerland (byzantine system of 120+ bi-lateral agreements) or it would be a bespoke deal that must never be specified lest its magical allure wears off. That is quite an impressive list, isn't it?  How is Liam Fox getting on?  How is he getting on?


Astonishingly, we're approaching the half-way point between the referendum result and the UK's imminent and guaranteed departure from the EU.  Assuming a linear trajectory, we should be roughly half-way through the list of trade negotiations by now, meaning that a trading area just 5 times the value of the European Union should be completed or nearly there.   Let's start counting on our fingers how we're doing.  The EU?  We haven't started any trade discussions with the EU.  India?  We haven't started any trade discussions with India. The US?  Despite some well publicised meetings aimed at generating news headlines we haven't started any trade discussions with the US.  South Korea?  We haven't started any trade discussions with South Korea.  Canada?  The Prime Minister is there right now and she is discussing issues related to trade but we are most definitely nowhere near negotiating a FTA with Canada. Japan? We haven't started any trade discussions with Japan.   Don't worry, I'm not going to torture you with more of this "we haven't started any trade discussions with country X" because I think we all knows where this is going to end up.  The UK has literally failed to start a single negotiation in all the time that has passed since the referendum result.  What went wrong?  Do shout out the answer if you feel like. Yes, Liam Fox is a good answer but it's not the whole story.

There are just so many issues here that they would be hard to fit into a single blog post.  I need to filter somehow or other so I thought I'd order them by their entertainment value. That's right, this post is now guaranteed to become more entertaining as it proceeds.  Before you all ask for your money back let's start off with the enormous pile of contractual obligations that will be declared void on EU departure day.  When the UK leaves the EU every single contract and treaty involving the EU and third countries will no longer apply to the UK. The Financial Times identified a truly incredible 759 treaties that will need to be ratified just for the UK to tread water.  These include fisheries agreements with Iceland, transport agreements with Santiago, nuclear agreements with Australia, regulatory cooperation agreements with New Zealand, customs agreements with Japan.  It is a truly astonishing list and I haven't even mentioned the trade deals yet.  The list contains a staggering 295 trade treaties, 202 regulatory cooperation treaties on everything from company takeovers to data sharing, and 65 transport agreements.  Before embarking on a free trade negotiation with the UK any one of these treaties can be used as a bargaining chip.  Even for third nations more than willing to talk trade with the UK it remains the case that all of this has to be sorted out first because trade cannot take place if aeroplanes can't take off and land.  On exit day, the UK will be faced with the kind of international relationships enjoyed by North Korea and South Sudan.

This brings us to the problem of government capacity.   The UK Civil Service is overburdened with a regulatory maelstrom.  It has to arrange the completion of 759 international treaties by 31 March, 2019;  identify any others that the FT might have missed; negotiate a complex exit deal from the EU; implement the entirety of EU law into UK law but without referencing any EU institutions or courts; ramp up UK mirrors of all EU technical agencies;  massively increase the UK border capacity; prepare UK business for customs of origins checks; prepare UK border control for customs of origin checks; implement a tariff payment and rebate system;  plan for the transcription of EU treaties into politically acceptable Free Trade Agreements; hire and train tens of thousands of staff.  To be honest, I'm just an amateur blogger so that probably only scratches the surface of the work that needs to be done. To make matters worse, instead of handing this work to established departments with existing procedures and expertise, Whitehall has been asked to play a prolonged game of musical chairs in the newly formed Department of International Trade and Department for Exiting the EU.  I think we can all agree it is a lot of work but is it an insurmountable goal? Luckily, we don't need to guess an answer because Liam Fox admitted that capacity was an issue and that he was "simply unable" to make it work.   Just in case you missed it let's repeat that one more time: Liam Fox admitted in public that the UK does not have capacity to complete the jobs required to smoothly exit the EU.

Can it get worse?  Yes, of course it can get worse.  Liam Fox is forbidden by EU law from signing trade deals before the UK exits the EU.  There is some legal debate about whether the UK can even negotiate trade deals while still a member of the EU but that is a moot point because a) it will seriously break down trust between the UK and the EU by turning the UK into a trade competitor and b) the UK has anyway used up all its capacity on negotiating its escape from the ghost of Jacques Delors.  When David Davis and Liam Fox made all those promises were they deluded or telling an outright lie?

Let's imagine Liam Fox invited his mate Adam Werrity round and all his mates and all their mates.  I'm not sure the universe could handle that concentration of raw talent but let's imagine that it could and that they all agreed to bat for UK trade at the weekend.  Let's imagine they chose Canada as their first port of call.  How might that go?  To work that out we need to think about the career goals of a typical Canadian trade negotiator.  My guess is they'll want to do this quickly so they can catch the ice hockey highlights on the gogglebox.  The last thing they want to do is to promise the earth to their boss only to find out that it will be a rocky ride getting there.  As a consequence, the first question they'll ask is if the UK is going to be a regulatory annexe of the EU. Does the UK intend to uphold the regulatory standards of the EU but through a different legal mechanism or does it intend to completely change to a new set of standards?  If the UK commits itself to EU regulatory equivalence then it might point to a favourable outcome using CETA as a template. This is great for Canada because everything they invest to make CETA work will also benefit the Canada/UK deal.  It also creates a Canada/UK/EU trading zone with all the attendant benefits of scale.  The problem is that neither Liam Fox nor Adam Werrity nor any of their mates nor David Davis knows the answer to this basic question.  The UK truly cannot decide a course for its future.  On the one hand, it cites a "deep and special" partnership with the EU and publishes position papers that foretell a future of EU equivalence.  On the other, meanwhile, the bumbling Foreign Secretary publishes a 4000 word hymn to Brexit that once again threatens to turn the UK into a low tax, low regulation economy.   Which is it to be?  The truth is that nobody knows and nobody will know until the UK finalises its relationship with the EU. Until that happens nobody will seriously discuss trade with Liam Fox because it would be a waste of time.

If you're a news fanatic you'll probably have noticed that Theresa May has been over in Canada talking to Justin Trudeau and that issues around trade have been discussed.   It's quite clear that Theresa May has convinced the Canadians that the UK will be a regulatory annexe of the EU because it seems that everyone is keen for something like CETA to continue with the UK after Brexit.  Despite Fox and Hammond and Johnson all making headlines with their incessant talk of an economy diverging from the regulatory standards of the  EU, May has unilaterally convinced a foreign head of state that is all mere chit chat and that the UK will be nothing more than a regulatory extension of the EU.  She must have spent her time outlining her vision for the UK's relationship with the EU as something akin to today's situation but with a few cosmetic changes here and there.  With that decided, the UK and Canada can use CETA as a template.  Except, of course, it hasn't been decided at all.  Theresa May might have decided in her own mind but I think we all recognise that the situation is fluid, at the very least. Would Jacob Rees-Mogg accept the UK automatically mirroring EU Regulations and Directives even if freed from the clutches of the ECJ?

We now see the only way forward for the UK.  If the UK is to sign any trade deals at all in the next 5 years or so it will have to become a regulatory annex of the EU.  Only by following that path can it relatively painlessly repair all the trade deals that it breaks by leaving the EU.  That brings us to the second most entertaining problem.  The EU is currently in trade talks with Japan and has voiced an interest in starting trade talks with Australia and New Zealand.  These countries also have capacity limits of their own and will prioritise their resources for the biggest fish.  Given that the EU has a population 8x that of the UK and includes Germany, already a larger market than the UK, it is obviously going to talk to the EU first.  It is going to choose the EU anyway because they have stable governance and are able to commit to long-term plans and initiatives.  Moreover, they know that they can just take the deal they strike with the EU and the UK will fall in line. Is this a good thing?  Well, no, because the UK will end up adopting trade positions that don't reflect the needs of its economy.  Trading conditions that might benefit Audi in Stuttgart probably don't necessarily apply to a payroll services company in Solihull.

Now we come to the most entertaining problem.  The problem is that the UK is supposed to be free to take control of its own trading affairs but we've just seen that the only political solution that has any chance of diverting the Brexit bus from the cliffs is to be, in the words of both Johnson and Gardiner, a vassal state.  Surely, though, the UK can go ahead and forge its own trade deals with its nimble legislative processes?  Well, this is where it gets really hard.  The truth is that, apart from the US, the EU pretty much has it covered with anyone interested in doing substantial trade deals and harmonising with EU standards to a meaningful degree.  Huge parts of the world actually run protected economies.  Brazil and India, for example, both fall into that category.  In comparison, the EU's WTO tariff rates average 4.8% and are much lower than the world average of 9% and insignificant compared to WTO bound rates that often run as high as 39%.  The trouble is that a trade deal only really has to liberalise trade relative to where it is right now and that might not mean very much in terms of real value.  A trade deal with a divergent and protected economy half-way round the world will have even less monetary significance and be even harder to sign.  Besides, if they know the UK will just fall in line why would they bother with the UK until they've sorted out a deal with the EU?

The simple truth is that the most stable outcome is guaranteed to be worse than the trading conditions enjoyed today by the UK.  I don't think anyone voted to be a regulatory annexe of the EU, to take on 2nd hand trade deals that we didn't influence and don't reflect the needs of the economy.  This is not an attractive option at all.  What are the alternatives?  What about the low tax, low regulation economy everyone keeps mentioning?  I've kept the best for last because the fantasy of Fox and Minford is to become a "beacon of free trade" by slashing as many tariff and non-tariff barriers as feasible and turning the UK into an economic free-for-all. Who would sign a free trade agreement with the UK when they already have complete and unfettered access to the UK's economy?  Nobody.

Over and out,

Terry

PS The US is a special case because it looks like TTIP has been abandoned so there won't be an existing FTA for the UK to adopt.  I've blogged about the specific issues of TPA and Congress in more detail but let's just say that we are dealing with a President who consistently wants more tariffs rather than fewer.   Trump is now on record as having said: "So, John, I want you to know, this is my view. I want tariffs. And I want someone to bring me some tariffs."

PPS There is still one issue that I haven't deal with.  If the UK manages to agree an extended period of negotiation beyond the 2 years laid out in Article 50 then it is most likely it will not be allowed  to sign trade deals for its duration. The Canada/EU deal, for example, will cease for the UK on 31 March, 2019 yet the UK will not be able to enforce any proposed agreement with any 3rd party for some years after that date.  The EU could concede on this point but what will that cost? Never forget who holds all the aces.

The Brexit Game

I invented a pub game on my holidays. Truthfully, it is not a very good game and players will quickly tire of it but despite its low entertainment value I'm going to devote the entirety of my first post-holiday blog post to an utterly pointless discussion of The Brexit Game.  If you'd like to play the game in your local hostelry I'm going to describe the rules but they're not hard and fast or anything like that so feel free to customise them to maximise your enjoyment. When you've finished playing the game it might also be fun to chat about the patterns that you observed and see if you can draw any conclusions. I've only played a handful of times (and I'll probably never play again because, as I said, it isn't really a very good game) but it was fun to gamify what I was already obsessively doing with every waking thought.



If you want to play along, the game is quite simple to play. The game hinges on the idea that literally everything can be categorised as Remain or Leave. Some might say that is a spurious notion but I like to make bold, binary statements because a) exaggerating differences allows us to work out what they actually are and b) let's face it, it's more fun that way. The idea of the game is to propose a cultural figure that most divides opinion about their Brexit status. Play begins by agreeing the play order of all participants and the number of times you intend to cycle round. The first player then takes up the mantle of the nominating player and proposes a famous individual. That is followed by a vote of all players on the Leave/Remain status of the chosen celebrity. Points are awarded to the nominating player by subtracting the difference of Leave and Remain votes from the total number of players. The next person in the play order then takes on the role of the nominating player and so on until the chosen number of rounds are complete. The winner is obviously the player with the most points.

Let's try out a trial round. I reckon about 6 people read this blog so it makes sense that there are six players in our imaginary scenario. To get the ball rolling, I'm going to start by nominating Paul Daniels, 70's magician and all-round cultural reactionary. Was he Leave or Remain? Let's all vote and let aggregate opinion settle the debate once and for all. The scores are in and it turns out we're almost in agreement but one of you lot thinks he would have voted Remain. Oh dear, I don't think everyone is as familiar with the Gesamtkunstwerk of Paul Daniels as I originally thought. Anyway, let's work out that score. The difference between Leave and Remain votes is 4 (= 5 Leave - 1 Remain) so I score 2 points (= 6 players - 4 difference). I hope you can all see how it works. If I had proposed a celebrity that completely divided opinion I would have scored a maximum of 6 points. On the other hand, nominations that generate clear agreement of either Leave or Remain lead to nul points. Let's pass on to the next nominating player. Did I hear Tony Blackburn? Wow, good choice.

The game can be extended as much as you like. Personally, I found it slightly less tiresome when I tried to categorise literally everything into culturally Remain or Leave rather than just focus on voting intentions of humans. The great thing about that is that it allows bands, films, TV series and even snacks to be included. Is it even possible to categorise the cultural leanings of crisps? I don't know, to be honest, but let's at least give it a go because there are no quitlings on this blog. What do you all think about Quavers? I reckon they are Leave but I'm equally certain that Space Raiders are Remain. Howzat for brinksmanship?

After playing a few times and thinking about this most important topic for a few minutes I came up with another variation. This time the game is called "The Brexit Partners Game". The idea of the game is to come up with perfect Leave/Remain partnerships. To be honest, I couldn't didn't bother to come up with a scoring mechanism but that doesn't really matter. I'm guessing something that maximises points for the most divergent pair but the hard part is to agree what constitutes a legal pair. Here's a few I prepared earlier to give you an idea just in case anyone is inclined to take up the challenge of turning this into a playable parlour game that is guaranteed fun for none of the family.

Leave	Remain
John Lennon	Paul McCartney
Oasis	Blur
Sid Little	Eddie Large
Bill Wyman	Mick Jagger
Joe Cocker	Jarvis Cocker
Paul Daniels	Phil Daniels
Ernie Wise	Eric Morecambe
HP Sauce	Soy Sauce
Stilton	Gruyere
Dire Straits	Sting
Morrissey	Johnny Marr
Grant Mitchell	Phil Mitchell
Sherlock	Doctor Who
Quavers	Space Raiders
Gary Numan	Human League
Jerry	Tom
Terry	June
Cilla Black	Sarah Greene
Michael Caine	Roger Moore
Adele	Amy Winehouse
Lewis	Morse
Liverbirds	Robin's Nest
Sex Pistols	X-Ray Spex
John Cale	Moe Tucker
John Humphrys	John Snow
The Liverbirds	Girls On Top
Ray Barraclough	Les Dawson
The Goodes	The Ledbetters
Jonathan Ross	Graham Norton
Bruce Forsyth	Tess Daly
Ken Barlow	Deirdrie Barlow

I bet you're probably all impatient to hear the highest scoring nomination over my holiday break. Even if you're not, I'm going to go right ahead and tell you. It was Gary Numan and it was proposed by my fantastic friend and fellow idiot Mothra de Suave. On the one hand, Numan's music is futuristic. Gary Numan was a electronic pop pioneer who wasn't afraid of replacing mechanistic human effort with devices better equipped for the job. Removing all that drudgery of heavy guitars and faulty amplifiers and sore hands and broken strings freed up more time to focus on the core task of writing and recording a great song. More than that, synthesisers democratised the creative process so that everyone with a good idea could quickly participate. Reducing the barrier to entry (all that tedious learning of chords, finger exercises, scales training, expensive equipment) meant that ideas came to the fore. Isn't progress all about letting as many ideas as possible percolate through society and letting as many people as possible take part? Gary Numan was borrowing from Kraftwerk (Germany) and David Bowie (another planet altogether) and punk (London) and New Wave (New York). His output was nothing less than a cultural melange that contained a message for the whole world. That all sounds quite Remain, doesn't it? It certainly does but we need to look at that message a bit more closely before passing final judgement. Numan's music conjured a vision of a fearful and lonely future. His was a future where the machines were in control; human friendship had been electrified and would by now be entirely digital; solace and safety could only be found behind the locked door of a car. That all sounds like Leave to me. Yes, that all sounds like someone who wants to turn the clock back rather than look to the future; someone who shuns the green experience of shared transport for a solitary trip on a polluted motorway that used to be the home of frogs and rabbits. It's more than a tad Leavey. Well, this is vexatious. Are there any other clues that might help us settle it? Well, there is always the story that he came out as a Tory back in the 80s. Does that help? Not really because it might not be true and even if it was I'd say that historic party allegiances serve poorly as a Brexit benchmark. The clue that eventually tipped me towards Leave is that poor old Gary left the UK due to a sense that society was breaking down after some cheeky kids yelled at his wife.  He moved to Santa Monica, a city that might appear polite on the surface but actually has a significant problem with deadly gun crime, car theft and, as it turned out, a high rate of anti-social behaviour. He didn't think that through, did he? That is pure Brexit so I'm tipping Gary for Leave but I could be easily swayed back by anecdotes that point the other way. If anyone can beat Numan please let me know.


What have we learned? Not a lot, to be honest, but at least Brexit brought us all a shit pub game. That's honestly about as good as Brexit is ever going to get.

Over and out,

Terry

PS It probably took longer to think up this rubbish game than most Brexiters spent trying to understand even the basic operational details of the EU.

PPS If the Daily Express can attempt to categorise every substance in the world as cancer forming or cancer curing then I can do the same with Brexit. In keeping with that spirit, my next blog post will be about Princess Diana.

Brexit Holidays

It's time for a break.  That means a break from the relentlessly sunny Swiss summer, a break from another particularly busy period at work, and a break from Brexit blogging from a Scottish perspective.  I'm off to Scotland to check if it's still raining and maybe take a look at that bridge everybody is talking about. There will be whisky, there will be laughter, there will be communal playing of the ukulele, there will be roamin' in the gloamin', there will be whisky,  there will be bicycle rides by the salty sea, there will be times when I just sit in a comfy chair and enjoy the doing of nothing whatsoever.  Did I mention there will be whisky? There will also be no Brexit blogging for the next 10 days or so.  I really, really need a break. Let's face it, we all need a break from the endless bad news blogging that I serve up here on a semi-regular basis.

See you all the week after next!

Over and out,

Terry

Really Stupid Pt 2

One of the problems with being an amateur Brexit blogger is that I just can't keep up with events.  Brexit logic may have a 9 month cycle but on top of that it is plagued by a high frequency signal  that is basically just noise to the ear of a rational human being.  Monday might bring a leak that the UK is going to ban chemically washed chicken, then Tuesday might inform us that we're going to buy a job-lot of disinfected poultry with the loose change from our £40 billion exit bill.  It all just moves so fast. Sometimes this blog is like watching the football highlights from two weeks ago - all the drama of the moment is forgotten and all you've got left to enjoy is a grim sense of life ebbing away and footage of some overpaid idiots running around a grass rectangle.  This is one of those sometimes because today's post is a delayed review of the UK government's proposal for the Northern Ireland/Ireland border.  Enjoy.

What does the UK propose?   Let's start with the good news.  The UK intends to maintain the Common Travel Area.  This is a historic agreement between Ireland and the UK that basically bestows the kind of rights that the EU would eventually bestow upon its citizens.  In fact, those rights go far beyond the EU because it includes voting rights and fewer conditions on benefit claims or residence.

• the right to enter and reside in each others’ state without being subject to a requirement to obtain permission;
• the right to work without being subject to a requirement to obtain permission;
• the right to study;
• access to social welfare entitlements and benefits;
• access to health services; and
• the right to vote in local and parliamentary elections.

Is there any more good news?  Well, it does provide quite an interesting history lesson.  Did you know that in 1972 only 17 of the 200 border crossings were approved for vehicular traffic?  The border was such a dangerous place (bombings, shootings, violence) that it had to be policed by armed guards and watchtowers.  The Good Friday agreement of 1998 removed all signs of the border and paved the way to relative peace.  Although the EU wasn't directly instrumental in striking that agreement, the border arrangements brought about by EU membership helped to make it possible. I've even crossed the border myself a few times and the only visible sign of change is that the road signs change from kilometres to miles per hour.   

I don't want this blog to just be the bearer of bad news so I'm going to stay with the positives a bit longer: there are no plans for passport checks at the border.  The rights of travel for Irish citizens will, of course, be covered by the continuation of the CTA.  It looks as though the UK government is not going to require visas for EEA visitors because they seem happy for EEA citizens to cross into the UK through Ireland. Interestingly, they don't really say much about the rights of non-EEA visitors to cross the border.  It seems highly unlikely that Ireland and the UK will align their visa requirements for non-EEA so this is a bit of a loose end that does need tying up.  It strikes me that anyone with rights to travel to Ireland but not the UK can now just enter the UK through Ireland.  Eventually, someone without a UK travel visa is going to commit a crime in Basingstoke and Tony Parsons is going to blow a gasket.  This is actually quite serious because taking control of the borders ought to mean exactly that but now the government is basically letting the Irish government control entry to the UK.  This might be a very real problem but it's not even in the top ten on the chart of shame.

Let's move on to the bad news.  When the UK exits the EU it will no longer be in the EU Customs Union.  As a consequence, we might expect that the Irish mainland border will start to look like the rest of the EU's border. What does that look like?  Well,  I've blogged about this a few times because I regularly cross the EU's border with Switzerland.  It basically look like any other border on the EU's periphery:  there are manned checkpoints on major crossing points;  temporary checkpoints and random checks on minor crossing points, and very occasional checks on trains.   If you're crossing the border in a massive truck laden with delicious cheese you'd better have your dockets ready because you're going to need them.  A family car on a minor crossing point might get stopped but, then again, it might not.  You're highly unlikely to be stopped on a bicycle or on foot but the risk is always there. Switzerland is in the Schengen area so all that checking is performed to maintain the integrity of the tariff regime. We might expect that kind of border to appear at the NI/Ireland interface but the government aren't proposing any of that because they have permanently taken leave of their senses.

They're an experimental lot at Brexit HQ because they are very keen on the words "unprecedented".   I can hereby declare that their proposal is certainly unprecedented.  It is also unhinged, unworkable and unstable.  David Davis proposes that the EU basically ignores the border altogether.  Yup, let's all pretend it doesn't exist even though it does. He basically says that small traders should be allowed to move goods freely across the border without any regard for differences in tariff regimes.  He then says that large traders should register as trusted businesses and we'll just trust everyone to pay their tariff charges at their leisure.  Once all that is in place the border will continue with zero border infrastructure, zero guards, zero watchtowers, zero cameras and zero checkpoints.  This is a mad fantasy and the rest of this post will be devoted to tearing down the hapless plan until it keels over from the weight of shame.

The problem can be summed up in one word:  arbitrage.  Any time there is a price discrepancy in any commodity across the border it encourages cross-border trade in that commodity.  That price discrepancy might be due to currency fluctuations or it might be due to tariff policy.  If there is an open tunnel across the border it will allow cheap goods to flood either country against national policy.  That counts for small traders just as it does for large ones.  Did you know that the Swiss actually made attempts to control the cross-border traffic in German pizza delivery companies? They need to do that because Swiss pizza is much more expensive due to the high value of the Swiss Franc. All it took was a few complaints about foreign pizza imports and its effect on the economy of border towns and something was done about it through the enforcement of tariff payments.  That's right, even small businesses can build up political pressure at the border.  Big business is another story altogether.  The UK has repeatedly threatened to turn itself into a low regulation, low tariff, low tax economy.   That seamless border will be an open target for smugglers to exploit the border by sneaking cheap steel and oil and anything you want to mention into the EU.  The key point is that once it crosses to Ireland there are no further checks anywhere in the EU.  It works the other way, too.  Jeremy Corbyn might want to increase steel tariffs to help Welsh steel workers.  There's no point doing that if cheaper Chinese steel can flood in from the EU.  To be honest, most things involving Corbyn have no point.

David Davis is basically asking the EU to significantly weaken its border and undermine its long-term economic strategy for absolutely nothing in return.  He is asking the EU for a massive favour just because the UK finds itself in a hole.  He is asking the EU to trust the UK, even though the UK is facing a £2 billion fine for repeatedly failing to uphold EU regulations at its own ports.   The best outcome for the EU can only ever be that it is not as good as it is today.   It is not an attractive proposition.

Can it get worse?  Yes, it can.  What about the prospect of hormone-injected beef from the US winding its way to Munich all the way from Munster?  Well, Davis has thought of that.  He says that the UK will mirror all of the EU's agri-food regulations.  Well, he can wave goodbye to a US trade deal if he does that.  Does the border have a magical agri-food filter?  No, it doesn't. Chemicals and nuclear material and paint and toys and inefficient vacuum cleaners will also want to cross the border.  The UK will need to mirror all legislation on pretty much every possible commodity category.   Davis doesn't explicitly mention any of that but that's what he'll have to do. He can wave goodbye to any trade deal with anyone with that kind of legislative weight on his back.  Did someone mention live animals?  Chickens and horses and animal disease can all cross the border.  Disease control and the EU Directives and Regulations that uphold standards of disease prevention aren't even mentioned. Can it get any worse?  Well, who is going to monitor all this?  The ECJ will quite clearly not be involved.  I think he is just asking Barnier to take the UK on trust.  Why would the EU agree to any of this?

It turns out that taking back control means giving up control.  Brexit means that the UK lets Ireland decide who gets to travel through its ports.  Brexit means that the UK gives up any attempts to pursue its own macro-economic policies. Brexit means that it is locked into EU regulatory standards in perpetuity without any say in those standards.  Brexit means that it is unable to sign its own trade deals because of the inherent loss of political freedom and power.  

The government's position paper tries to solve an intractable problem.  It is well written and contains all the references and caveats of a real position paper but it is actually 3 pages of logical fallacy and logistical nonsense fluffed out with 27 pages of waffle.  The EU is simply not going to agree to significant disadvantage in return for literally no gain.  Even the UK could not maintain the seamless border because borders are specifically designed to maintain regulatory and economic difference.  The only way that a truly seamless border is possible is by enforcing political convergence.  If only there was some kind of way to organise that across the whole of the European Continent. If only.

Over and out,

Terry

PS It looks like Davis is trying to resurrect the "row of the summer" over the sequencing of the talks.  He makes the point  pleads several times that progress will be faster with parallel talks.  Is he an idiot or is he playing to the press gallery?  Answers on a postcard.