Monday, 31 July 2017

Trans Europe Express

There's been a lot of talk about transition deals in the last few days.  What's going on?  I, for one, think it's time to find out.

I always like the way that David Allen Green lays out his thinking in numbered points so I thought I'd give that a go.  I have to say that I like it a lot.  It makes it look lawyerly and implies a level of gravitas not normally associated with this blog.  Another plus point is that it makes for a shorter post. Enjoy.

1.  The two year limit laid down in Article 50 can be extended if all parties agree.  The EU will certainly not contemplate that because it would leave the UK a full member of the EU and lead to UK MEPs in the next European Parliament.  The last thing they want is year after year of Roger Helmer and his obsession with spreading falsehoods about the pH scale.  The UK government have also pledged that its EU membership will terminate on 31 March, 2019.  If the UK wishes to extend the available negotiating time then it needs a different solution.  The buzzword for that is "transition deal".  This is as meaningless and hard to define as "red, white and blue Brexit" and "Brexit means Brexit".

2. The UK has not yet actually asked for a transition deal and made no mention of it in the Article 50 letter that Theresa May delivered to the EU.  They will have to formally ask for one instead of leaking it to the press and making personal speeches about it.

3. As it stands, Michel Barnier has no authority to grant the UK a transition deal.  The limits of his powers are laid out in the position papers agreed by the European Parliament and the Council of Ministers. If the EU wishes to grant Barnier the power to agree a transition deal then it will first need to formally iterate on its position until it reaches a final consensus and publishes that in the form of a position paper.  This will take some time.
4.  The EU has made it clear that a transition deal is contingent on the UK first laying out its final goal to a level of detail that has so far eluded our brightest and best political leaders.  The EU, of course, need to weigh up the pros and cons of granting the UK's wish but to do that they need to know basic details about those pros and cons. Unfortunately, the UK government cannot do this right now. We've waited for over a year for any kind of credible consensus to emerge from Cabinet.  We're still waiting.

5.  It is not in the EU's interest to rush into an agreement on a transition deal.  UK businesses are currently moving their operations to EU soil so that they can carry on trading in the EU after the UK ceases to be a member.  The EU's interests are best served by granting the transition deal only after UK business has taken flight to the EU.   This is the one and only time that the expression "cake and eat it" can be correctly applied to Brexit.

6.  The transition deal will be, in actual fact, an extended period of negotiation and preparation. Two years just isn't enough and many figures in the UK government have finally acknowledged that more time is required to secure an orderly, negotiated Brexit.  The government are therefore signalling that a transition deal is a necessary condition for an orderly exit from the EU and that without one the exit is guaranteed to be disorderly.  How will they respond if agreement on a transition deal just isn't possible?  A failure to secure a transition deal ought to end the political reputation of everyone involved.  It should also lead to a fundamental rethink on the practicalities of exiting the EU.

7.  A transition deal will only be granted by the EU if the UK accepts pretty much all of the obligations of EU membership.  The UK government cannot agree even on this point.  Liam Fox, for example, is adamant that freedom of movement will end on 31 March, 2019.  That position rather diminishes the chances of the UK ever entering a transition phase.

8.  All treaties between the UK and the EU lapse on 31 March, 2019.   The EU will simply go through every relevant document and strike out "United Kingdom".  The only way that the UK can temporarily restore its relationship with the EU is through new time-limited treaties that approximately replicate the existing treaties to whatever extent is required.  This is a problem because the EU requires unanimous agreement on all new treaties. If I was to criticise one feature of the EU it would probably focus on the slow pace of internal agreement on almost any topic.  Meanwhile, the clock is ticking away.

9.  Due to time restrictions, the only options that could ever be made available to the UK will be very close to existing legal templates.  The most obvious of these is something akin to  EU membership with budget contributions, full participation in the 4 freedoms, the role of the ECJ, and the Customs Union.  The further the UK wishes to travel from that template, the less likely it is that the EU will unanimously agree and the longer it will take to negotiate.  That annoying clock is still there marking the passing of time.

10.  The UK cannot meet the obligations of EU membership while also rewriting all of its law to exclude the influence of EU courts, treaties and technical agencies.  Will the Repeal Bill have to wait for a later time? Only the EU can answer that but given that the EU is governed by process and law I think we can all guess the answer.

11.  Will the EU allow the UK to negotiate and/or sign FTAs with third parties while also a member of the European Customs Union?  This is exactly the kind of tricky and controversial detail that will take time to agree.  The clock is still ticking.  Will someone please stuff it in a drawer or something? Honestly, it is doing my head in.

12.  An interim period of effective EU membership has all sorts of consequences for the exit agreement. For example, the EU might decide to shift the cut-off date of permanent residence status to the date when the EU exits freedom of movement rather than the date when the UK ceases to be a regular member of the EU.  It might also have an effect on the exit bill because the UK might end up naturally meeting all of its financial obligations just through a prolonged period of budget contributions.

13.  There is no guarantee that the EU will agree to an extended period of negotiation.  The UK are behaving as thought it is a done deal and can be unilaterally agreed.  It doesn't work like that.

14.  This one is a bit of a curiosity but the 2011 European Union Act means that in certain cases treaty changes in the EU end up being put to to a UK referendum.  Let's ponder Clause 4(4)(c) for a second: "in the case of a treaty, the accession of a new member State."  Personally, I like the inherent recursion of that one.  Perhaps 4(1)(i) is more to the point: "the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom".   This last point is really just a curiosity but I found it rather entertaining and wanted to end on a weak chuckle.

Over and out,


 PS I really wanted to write something more detailed about the transition deal but I've been busy all weekend.  I'm afraid this will have to do.

Thursday, 27 July 2017

Clucking Mad

I am a truly massive snob so being ahead of the curve has always been important to me. When I was young it was all about being into a band before anyone else, collecting all the early 7" singles, seeing them live in front of 50 people in an unglorified toilet. When they signed to Warner and made it to Top of the Pops I would likely just have yelled "sell-out" at the screen, complained about the commercial production on their new album, and looked around for another to follow. I don't want to blow my trumpet too loudly lest I become the Mr Bighead of Brexit but I'm happy to say that this blog was one of many that were ahead of the Brexit curve. The problem I now face is that Brexit has just signed with EMI and their powerful marketing department have splashed stories about their debut album "Chemically Washed Chicken" all over MSM. All the things that the cool kids were talking about 9 months ago have suddenly become massively popular with squares and suits and johnnycomelatelys. So what should I do now that MSM is regularly spewing out articles about FTAs, regulatory frameworks, harmonisation, investor-state disputes, EU technical agencies? What am I supposed to do now that Brexit scepticism has gone mainstream? Well, it turns out these mainstream stories are actually pretty terrible and often completely miss the point.

Liam Fox's recent trip to the US has led to a flurry of articles about how a US/UK FTA would force the UK to accept imports of chemically washed chicken. It would be fair to say that MSM is frothing at the mouth at the prospect of being forced to eat poisonous McNuggets. Michael Gove, in his role as Environment Secretary, has even been forced to unilaterally declare that the UK would ban chemical chicken. This is very much a chicken and egg problem because it turns that the US also has inferior standards on eggs. Their low standards on chicken husbandry means that dirty eggs need to be washed, dried and refrigerated to be fit for human consumption. Unfortunately, these processes breach the integrity of the shell and allow persistent bacteria to enter the interior of the egg.   As a consequence, the rate of salmonella poisoning in the US is more than 50 times the rate in the UK. We can thank the European Food Standards Agency for that because it forced farmers to raise their hygiene standards through a complete ban on egg washing. I'm confident we're going to see this pattern repeat itself across almost every agricultural product category. Michael Gove might not realise it but he just removed agriculture from the US/UK FTA. Liam Fox should be furious but he won't be because he won't have realised it, either.

The problem with agreeing a UK/US FTA is much, much deeper than just chickens and eggs and standards of animal husbandry. Literally every area of human commerce where the US and UK have different regulatory standards will lead to significant difficulties. It doesn't matter which side has higher or lower standards because that isn't what matters here. The only thing that matters is that the regulatory standards are different. Let's look at the egg industry to see the difficulties that arise from regulatory difference. That's right, the egg industry. This is exactly the kind of fascinating chat you get here. Eggsactly.

UK egg manufacturers will have made significant investments over the years to conform to EU standards. As a consequence, they're in a great position to have their produce included in a UK/EU FTA. After all, UK egg inspectors are already trained to EU standards, UK egg producers already meet the standards, and UK egg law already enforces the standards. It should be a simple step for the EU to recognise that the UK egg industry is equivalent to the EU egg industry. The UK can also easily recognise that the EU egg industry is equivalent to the UK egg industry. All of the egg boxes for a successful FTA are now ticked. Consumers can carry on shopping in the supermarket safe in the knowledge that they are unlikely to be poisoned by a meringue. Producers, too, can carry on manufacturing eggs safe in the knowledge that their investment in chicken hygiene is being put to good use and that their eggsport markets haven't been threatened.

"Andrew, you should see the size of the US mega-chicken. Eggs like footballs."
What would happen if Liam Fox signed a FTA with the US that allowed US eggs to be sold in the UK? The first thing he will have to do is change all UK legislation on egg hygiene and chicken maintenance so that it more closely matches the rules in the US. Egg inspectors will need to be trained in these new standards, egg manufactures will need to invest in washing and drying equipment, the egg logistics industry will need to move eggs around to new egg treatment centres. Egg delivery vehicles will be need to be adapted to include refrigeration. Supermarkets will also need to adapt their stores to keep eggs refrigerated. Their egg inventory system will also need to change because eggs will now have a different shelf life. This is an eggspensive and disruptive change for a relatively small industry. What are the benefits? Well, the first thing that will happen is that the EU will ban all UK eggs because the UK's equivalent egg status will be completely lost. Hey, that's not a benefit. What are the benefits? Well, the second thing that will happen is that imported eggs from the US will be able to undercut UK eggs because US manufacturers have already absorbed the cost of conforming to US/UK egg legislation. UK egg manufacturers will need to pay for all of this disruption to the UK egg industry, pushing up their unit cost. Supermarkets are going to buy as many US eggs as they can for the simple reason that they are cheaper than UK eggs. Cut off from EU markets, UK egg manufactures will struggle to sell even to their own domestic market. Hey, that's not a benefit. What are the benefits? I suppose UK egg manufactures can now eggsport their eggs to the US just in case there are any US consumers who like paying significantly above market rate for a standard egg. That's not a benefit, either. What are the benefits? The simple truth is that there aren't any benefits. Cutting yourself off from your biggest market by rushing egglong into a set of new regulatory standards doesn't have any benefits.

I chose eggs in the paragraphs above because repetition of the word "egg" always makes me laugh. Having said that, I could have literally chosen any area of human commerce where US standards diverge from UK ones and the UK decides to adopt the US version for the purposes of signing a FTA. I could have chosen financial services and discussed the regulatory complexity of the Dodd-Frank Act but it would have been too boring. I could have chosen pharmaceuticals and embarked on a long and tedious discussion of the Medicare Act but we all have lives to lead. I could even have chosen a comparison of the Volcker Rule in the US and the Capital Requirements Directive IV in the EU but it wouldn't have been as funny as eggs. In every instance the message remains the same: geography dictates that the EU will remain the UK's biggest export market; any legislative move away from EU standards limits the UK/EU FTA by destroying the UK's "equivalence" status; any move towards US standards comes at a significant cost to UK industry; the US has already absorbed those costs and therefore produces with lower unit cost; the maxim that trade halves with distance means that the prize of access to US markets is much, much smaller than the prize of a comprehensive FTA with the EU.

The problems I outlined above are eggsacerbated by the fact that the US is by far the larger partner and any compromise on standards is going to be closer to the US version than that of the UK. The UK is also politically desperate for a UK/US trade deal because it is relative easy to spin it in a positive light, even if turns out to have major flaws. That desperation makes any compromise even more likely to favour the US. Moreover, the ticking timebomb of the Trade Promotion Authority means that July, 2021 is the last chance the UK has to sign a trade deal with the US. After the TPA expires the UK will be negotiating live with 400+ Congress Representatives. That has never led to a successful outcome. The pressures just keep adding up on the UK to compromise away its ability to complete a meaningful FTA with the EU. Obviously, the sensible move would be to conclude the EU FTA first and then look further afield. In fact, it is the only sensible move.

If you're a regular reader of this blog you'll already have realised that this post is basically a repeat of a previous one but with some terrible egg jokes. In that old post I presented FTA negotiations as the mathematical optimisation of a contracting decision space: each FTA consumes the decision space, leaving less for the next. Compromise is a finite resource and should be used wisely, not frittered away on chemical chickens and dangerous eggs with a capricious partner half-way round the world. This is the real story that MSM is missing. Instead of asking Liam Fox why he thinks it is a good idea to willfully endanger the promised UK/EU deal, it bangs on about glowing hens and radioactive eggs.  If that's the competition, we're all ahead of the curve and we'll stay there until Liam Fox privatises it and starts charging us rent.

Over and out,


PS The stupidity of the UK's current political leaders if absolutely jaw-dropping.  They still don't understand the most basic points of international trade.  Even the idea that economic gains come at political cost is beyond them.  It's depressing to even say this but Fox is behaving as though he still believes trade agreements are entirely about tariff barriers and that disputes over standards harmonisation are tiny details to be ironed out at the end.  It's even more depressing to note that Gove thinks a comprehensive FTA can be a cherry-picked subset of product categories that he alone decides for his own advantage.

PPS I have very little confidence that a UK/US trade deal will be completed before 2021.  Anything after that requires Congress to agree an extension to the current TPA.  Besides, the UK will still be hammering out its FTA with the EU and trying to stabilise its tariff schedules at the WTO for years to come.

PPPS The UK might anyway be forced to accept food products banned by the EU.  The EU, for example, forbids the import of hormone-injected beef from the US.  The US took its case to the WTO and won.  In response, the EU kept the ban but compromised on increased quotas on beef from the US that does meet EU standards.  The US would be within its rights to lodge a fresh case against the UK if it chooses to uphold the ban.  Taking back control.

Friday, 14 July 2017

The Last Remaining Hope

The last remaining hope of the Brexiters is that the UK will be saved by signing trade deal after trade deal in quick succession immediately after the UK exits the EU.  Whatever happens, any trade increase made possible only by freeing itself from the slavery of EU membership will need to be greater than the drop in trade that arises from the aforesaid act of emancipation.  If that doesn't happen the UK will become poorer than it is today because it will export less and pay more for imports. Another bi-product of a failure to secure trade deals is that the UK will become less open and, as a consequence, less competitive.  I'm sure we can all see a vicious cycle that, once started, will be hard to stop.  It's imperative, therefore, that Liam Fox is a success in his role as Minister for International Trade. Do I hear laughter?  Stop that now!  This is a serious business.

Let's start with the scale of the problem that faces the UK.  It turns out that the EU has trade deals aplenty.  In fact, I counted 45 in total.  Headline figures, however, can be deceptive so we shouldn't just count the number of deals in place but also analyse their comprehensiveness.  It would be fair to say that some of these deals are no more than agreements that trade will be liberalised at some point in the future. The partnership and cooperation agreement with Russia, for example, probably isn't of much value, particularly since it hasn't been updated since 1997 and discusses the EU's relationship with Russia prior to Russia joining WTO Moreover, 4 members on the list are agreements with the EFTA nations.  There are also agreements with many former Soviet republics such as Ukraine and Georgia and Moldova. Geography and history dictates that these are of less value to the UK than they are to Poland and Austria and Romania. That leaves the really big deals that make the news:  Canada, South Korea, Japan, Singapore, Vietnam.  When the UK leaves the EU it will lose all of these trade deals or be unable to participate in them when they are finally implemented.   None of this is good news but the really bad news is that the UK will lose its trade deal with the entire EEA.  The EEA is the largest trading block on the planet: it has a GDP of $18 trillion and a per capita of $34,000.  Losing even a tiny fraction of that is going to be extremely hard to claw back.
Liam Fox's latest financial instrument.

What is the current plan to claw back all that lost trade with the EU and its partners?  If Brexit was a person it would be white, it would speak English with a regional accent and it would be very English in its outlook. It's not a surprise, therefore, that the focus has been on other white, English-speaking, Anglo-Saxon economies because nobody in the UK is all that interested in Vietnam or Cambodia. The really big prizes for Liam Fox would be Canada, Australia, New Zealand and the US.  The problem with this list is that Canada already has a comprehensive FTA with the EU. Moreover, Australia and New Zealand have both pledged to prioritise their discussions with the EU over the UK. In these 3 cases the UK will be working hard to match what it would have anyway gained as EU members.  That leaves the US.  A UK/US FTA would really knock the smug, self-satisfied smirk off every Remoaner's fat, ugly face.  How likely is it that will happen?  It turns out there are significant hurdles in the way and that these can all be found in the structure of the US political system.

Why does the US have so few trade deals? It has quite a few with countries in Central and South America but outside of that it has remarkably few.  The only trade deals that it has outside of the Americas is with Australia and Singapore. What's going on?  Well, it turns out that the US, despite being an open economy, is a bit of a nightmare on trade discussions because of the power that Congress has over every live detail
Taken from:
We've all heard about the difficulty in getting the EU to agree across all 28 members but it turns out the US has its own problems with representatives in Congress adding provisions at will that protect their own constituents.  The key point here is that, under the U.S. Constitution, Congress writes the laws and sets trade policy.  There are hundreds of representatives in Congress, each with their own woes and wants, making agreement on a moving target like a trade deal an impossibility. They are also renowned for their world-class filibustering skills when faced with something they don't like.  The US responded to this by introducing the Trade Promotion Authority Act.  This legislation temporarily removes Congress from the live negotiation and instead presents it with a Yes/No vote on the negotiated free trade agreement.  Not surprisingly, this was a controversial move.  Complaints about lack of scrutiny and unconstrained executive power have dogged TPA since its inception.

Most of the FTAs agreed by the US were negotiated under the so-called Fast Track system. The first fast track authority lasted a whopping 13 years fro 1974 to 1987.   When that ran out another was enacted to specifically negotiate NAFTA.  After 1995 the scheme lay dormant until 2002, when George Bush narrowly pushed another through Congress with a majority of just 3 votes.  The next five years  were a frenzy of activity with the US signing an incredible 8 trade deals.  That authority expired on July 1, 2007.  The Obama administration then started another fast track authority period in 2015 so that the US could negotiate TPP.  It's clear that the US relies on Trade Promotion Authority legislation to complete trade agreements; without a live TPA the US is simply unable to negotiate trade with anyone. 

What is the current status of the US? Does it have an active Trade Promotion Authority? Yes, it does.  The Obama administration pushed through a fresh TPA back in July, 2015.  It will run out in July, 2021 unless Congress votes to extend it before July, 2018.   Obama fought tooth and nail to implement a TPA so that the US could negotiate TTIP and TPP.  Both of these negotiations have now been cancelled but the TPA is very much still active legislation. 

The UK is obviously in a terrible position.  It cannot expect to complete a trade deal with the US by July, 2021 because it can only begin formal negotiations after it exits the EU in April, 2019.  The losses in EU trade would require a monumentally comprehensive trade deal with the EU just for the UK to tread water.  History tells us that 2 years simply isn't enough for that.  As a consequence, it badly needs the existing TPA to be extended.  Uh oh, that can only happen if Congress takes action in the next twelve months. 

What are the chances that Congress will extend the current TPA?  Previous TPAs were difficult to implement, to say the least, and required persistent pressure and advocacy from the President at the time.  George Bush, for example, made Fast Track a campaign pledge back in 2000.  He managed to push it through Congress with a majority of just 3 votes.  Obama started the process of TPA renewal in 2012 and finally got agreement on a diluted version of his original plan three years later.  The simple truth is that Democrats and Republicans are uneasy with the principle that Congress is denied its basic rights in the US Constitution.

In complete contrast to Bush and Obama, Donald Trump stood on a manifesto pledge of protectionism.  He promised to bring back jobs to the USA and he pledged to do that by cancelling TPP and NAFTA, increasing tariffs on Chinese imports, and categorising nations that run a trade surplus with the US as enemies.  TTIP was already on life support but it's likely he would have cancelled that as well in the event that the EU hadn't already walked away.  Is he likely to commit to pushing free trade legislation through Congress when he is clearly trying to steer the US towards more protectionist policy?  I don't think that is likely.  Even if he was minded to do this he has enough problems already pushing legislation through Congress. It  wouldn't be the smartest move to try to flex his flimsy grip on power with perhaps the most controversial bill he could imagine, especially not one that betrays his core supporters, contravenes his election promises and further alienates Congress.  It is extremely unlikely that Trump even has this on his radar. 
Brexit: The Neverending Story

I think it is unlikely that Congress will ever be asked to extend Obama's TPA.  The UK, therefore, has just two years to negotiate the deepest and most comprehensive FTA in the history of the known universe.  It will have to be deeper and more comprehensive than the UK's current relationship with the EU to even begin making up the losses that will accrue after Brexit.  In fact, even that wouldn't be enough due to the rule of thumb that trade halves as the distance doubles.  The UK/US trade deal would have to include new experimental legislative potions that eliminate the cost of geographical separation and time zones.  Let's face it, none of that is going to happen.  Instead, the UK is faced with another ticking timebomb to complement Article 50.   It will end up trying to do a deal with Congress and simply have to accept that every Democrat and Republican will chip in with a protectionist clause for their local steel plant or farm or chemical factory.  That is not going to end well for the UK.  To be honest, it will probably never actually come to an end. 

The US is simply not in a legislative or political position to complete notional trade deals. The trade deals it was negotiating have all been cancelled and the legislation that made those negotiations possible at all will soon expire.  Moreover, Donald Trump is a protectionist at heart.  He has made it his business to threaten German car manufacturers with punitive tariffs. In the same spirit he has repeatedly criticised countries that run a trade surplus with the US.  Germany is top of that list with an enormous imbalance of around $65 billion in its favour.  Trump's view is that those countries should spend more, specifically in the US.  If Donald Trump was to negotiate a trade deal with anyone the only way he could ever justify it politically is if he attempted to negotiate a settlement that improved US exports to Germany.  He even just about understands that a trade deal with Germany means a trade deal with the EU.  Is he likely to prioritise that over the UK?  Of course he is.  After all, everybody else is doing exactly the same thing. 

Over and out,


PS Everyone should listen to the Remainiacs podcast.  It's funny, informative, and unexpectedly uplifting.

PPS Many thanks to FT commenter "Pouca" for alerting its readers to the delights of TPA.

Monday, 10 July 2017

How Did We Get Here?

How did we end up in this mess? I know there was a dreadful referendum where politicians of all stripes lied about the EU.  Certain newspapers have been at it for years and years, whipping up a foul public mood of racism and xenophobia and English exceptionalism. There was also an entire class of people who were never invited to join the shiny post-industrial jamboree.  Apart from arguments about appropriate levels of benefits, there hasn't been a plan for these communities since the 1970s.  Well, they certainly got their own back.  Let's set aside all of that and instead think about how we started out on 24 June, 2016 and ended up in the mess we are in today.  We're about one year in to the process of implementing Brexit so the time is nigh to review the government's performance and see if we can work out what mistakes were made along the way.  Think of it as a kind of report card and it might be more fun than you imagine.

Customs Union

Theresa May committed the UK to a departure from the European Customs Union
as far back as 13th July, 2016.  Without a change of government this is an immutable decision that has never been discussed,  costed or agreed.  Hmm, but surely every decision is costed and debated and agreed?  Welcome to the world of Brexit.  In the world of Brexit decisions are made without any understanding of the institutions involved or the long-lasting consequences or their economic or political costs. As we proceed through today's report card we're going to come to recognise this as a familiar pattern.

What did Theresa May do on 13th July, 2016 that committed to the UK to a departure from the European Customs Union?  Well, she appointed Liam Fox as Minister for International Trade.   There is simply no need for a Minister for International Trade unless the UK leaves the European Customs Union.  As a consequence, Liam Fox's appointment set the UK on a course to leave the Customs Union.  That is a perfectly legitimate policy decision except, of course, that it wasn't a policy decision of any sort at all.  The rational timeline is to announce the policy and then make the necessary appointments to implement the policy.  Brexit logic means that you make the appointment first and then neglect to ever make a policy announcement because nobody in power actually understands the problem at hand.
July 26, 2016:
December 18, 2016:
Is the UK going to leave the Customs Union?  We all know the answer but let's have a look at the policy statements on this issue, starting at Tory Conference 2016.  There was literally no formal statement on the UK's future relationship with the Customs Union.  Amazingly, Liam Fox signalled that he backed leaving the CU at a fringe meeting.  That's right, despite his appointment being a cast-iron guarantee that the UK plans to leave the Customs Union even Liam Fox still thinks it is an open question.  What does he think his role involves?  Well, he seems to think his role involves changing his mind about Customs Union membership.  Just two months later, in an interview on the Andrew Marr show, he stated that membership was not a binary position and that it was a collective decision still to be made. I can't keep up with this chicanery, can you?  Happily, we have experts on hand who can confirm that FTAs are indeed binary propositions and that to behave otherwise is in breach of WTO rules.

Let's fast forward to the exciting days of December, 2016.  Liam Fox has been in his post for about 5 months and the debate about CU membership rages on within the Tory Party.  No joy there so let's zoom forward a few more weeks into the New Year.  Right, what about Theresa May's Lancaster House speech where she laid out the UK's position on leaving the EU?  Surely we can find clarity somewhere in there.  Think again.  If anything, the position becomes less clear with each reading.  She spluttered on about sectoral deals (more of that later), frictionless trade and associate membership but none of that is a definitive statement on the Customs Union and its membership options.

Can anyone in power answer this logical conundrum?  It's just as well Theresa May called an election because it finally gave her the chance to clear this up once and for all with a manifesto pledge. 
"As we leave the European Union, we will no longer be members of the single market or customs union but we will seek a deep and special partnership including a comprehensive free trade and customs agreement."
Finally, an answer to the riddle. Hallelujah.  Hang on a second, let's read that through one more time.  Right, ".. no longer be members of..." means that we're leaving the CU.  At last, some clear English we can all rally round.  Where's the confusion?  The problem is that, "... comprehensive ... customs agreement" doesn't mean that Liam Fox will have the freedom to go around signing trade deals with all and sundry.  In fact, the second part of that sentence flatly denies the existence of the first.  What exactly is the difference between a customs agreement and a customs union?  Aren't they pretty much the same thing?   Oh dear, this is a vexatious puzzle.

What about after the election? If there was a time for definitive policy statements it was immediately after Theresa May formed her new government.  Well, what do they have to say for themselves?  Oh dear, this is where it gets really confusing.  It turns out that Philip Hammond thinks the UK should remain a member, while Liam Fox is dead against it.  It looks like Hammond has even started crunching the numbers.  I'd go further than that and say that he has actually formulated a quantitative argument for the status quo.  In effect, he has laid down a challenge to Liam Fox to prove that future trade deals will be more profitable than the current ones.  What is Liam Fox's response?  We'll never know because a bout of shyness has led him to conduct his business indoors for the time being.  There's always the old chestnut about a customs union with the Customs Union but formal policy is as tangible as a fart in a wind tunnel.

What has Liam Fox been up to for the last 12 months?  He used to optimistically bang on and on about signing trade deals.  He even said that dozens would be in place as soon as the UK left the EU.  The problem he faces is that he can't do any of that without a formal policy on leaving the EU Customs Union.  Now, the UK has been signalling to the entire planet that it will be leaving the Customs Union ever since Liam Fox's appointment.  However, it has also been simultaneously signalling that it might choose any other option on the metaphorical table and is even considering options banned from the table under international law.  Make no mistake, the UK is on course to leave the Customs Union; it just doesn't know it yet.  They'll only know it when they wake up one day and there's a massive queue of lorries all the way to Kent.  

Who in their right minds would begin discussing trade with the UK without formal and definitive policy statements that it is ready to begin discussing trade agreements?  A quick perusal of Liam Fox's lonely diary will soon reveal the answer.



Where there was discord, let there be clarity.  The UK's position on the jurisdiction of the ECJ is crystal clear and easy to understand.  The timeline of that position, however, is harder to decypher so it's worth diving in to see how it all unfolded.

Theresa May was still grappling with the most basic issues of EU membership when she took to the stage at last October's Tory Conference to declare that the UK would leave the ECJ.  The clarity of the statement was entirely at odds with the rest of her speech. We need to remember this was a time when vague phrases like "non-binary decision",  "red, white and blue Brexit", "associate membership" and "a Brexit that works for all" were still being bandied around with abandon.  In the middle of all that vague sloganeering came a clarion call that was so unambiguous, so clear and so definitive that it stood out as rather odd.

Scarily, this is not as unbelievable as it sounds.
It's not clear that anyone in government understood the consequences of leaving the ECJ.  David Allen Green even speculated that May had confused ECJ with ECHR or that hard Brexiteers had pressured Theresa May into accepting this pledge without giving her the opportunity to analyse what it meant.  Whatever the reason, it is clear that the consequences were not understood at the time.  Anyone with a clear understanding of the consequences would have immediately invited representatives from the pharmaceutical industry to begin discussing a post-Brexit regulatory system.  They would have done the same with representatives from the UK airline industry, the Channel Tunnel, nuclear scientists and treasured jam makers. None of that happened.  Instead, the pledge was largely forgotten and barely mentioned again until January's Lancaster House speech.

The consequences of May's insistence on leaving the ECJ were spelled out for the first time a full 3 months after the initial pledge.  Those consequences, of  course, were that the UK would leave all EU regulatory bodies.  This is a huge undertaking.  Which Whitehall departments will take responsibility for the UK's replacement regulatory bodies?  Who will fund them?  What will it cost? What about legal enforcement of regulation?  Which courts will uphold regulations?  Which case law?  Which legislation?  What powers?  What about recognition of international agreements such as the Stockholm Convention? What about devolution?  Something as huge as this deserves at least a few words in the manifesto, right?  Wrong.  The Conservative Manifesto 2017 literally says nothing whatsoever about the consequences of leaving the ECJ.  There are some comforting words about the UK's legal system being the best in the world but that's your lot. 

It really does seem that a definitive pledge was made without first understanding its meaning.  Leaving all EU regulatory bodies is an unforeseen consequence of a rash decision made to placate a few press barons and a few thousand pensioners at Tory Conference.  Moreover, the decision was made in a way that leaves no wiggle room at all for a compromise solution.  Without any real ability to understand or tackle the unfolding problem, the UK is playing right into the EU's hands.  The A50 clock will just tick away like an unexploded bomb until David Davis has to plead with Michel Barnier to make it all go away.

Single Market

Here's a question if you ever find yourself bored on a long journey:  is the UK leaving the Single Market because it will be more prosperous outside the EEA or because it believes the political cost of membership outweighs the economic cost of leaving?  Stumped?  That's because it is a trick question.

Ending freedom of movement is another of Theresa May's red lines.  She has an unseemly obsession with reducing the immigration statistics no matter what that might cost.  It always strikes me as a personal battle, as though she can only prove to herself that she is a success as Prime Minister if she can turn around past failures as Home Secretary.   It doesn't ever seem to occur to her that immigration can be an indicator of a healthy economy or even be a contributing factor to the maintenance of a healthy economy.  Anyway, what about that trick question?  The policy to leave the Single Market is indeed a consequence of the red line on freedom of movement but it came long after the formulation of the red line.  For a significant period of time the UK government thought it could end freedom of movement but still retain all the benefits of the single market.   Brexit veterans will remember this as the fabled "cake and eat it" philosophy.

The basic idea of the "cake and eat it" philosophy is that the EU needs the UK more than the UK needs the EU and therefore will be prepared to trade its principles and rules for continued UK trade.  In this alternative universe German car manufacturers will be queuing up outside Angela Merkel's office to demand that the UK be given concessions on EU immigration rules so that they can carry on selling BMWs and Audis to boastful Brits.  David Davis even thought that the first port of call after a vote to leave the EU would be to Berlin to hammer out a deal with the German government.  In his own fevered imagination Brexit would be no more than a summer tour of European capitals making pleasant trade agreements based on national stereotypes. Literally nobody in the UK government understood that the EU is a political union that, like all unions, relies on unity.

The EU has been united in upholding the four freedoms,  German car manufacturers have been united in upholding the four freedoms,  national governments have been united in upholding the four freedoms.  Time and time again, the EU has consistently stated that the four freedoms are indivisible and that long-term integrity of the Single Market takes priority over short-term losses in trade.  It's just a shame that nobody was listening because a policy to end freedom of movement and retain Single Market benefits has ended up being just a policy to end freedom of movement.  That journey took the UK government 12 months and even now there are a few stragglers still trying to make their way to the nearest all-night patisserie for a feeding frenzy.

Let's be clear here: leaving the Single Market is an unintended consequence of ending freedom of movement.  It is an unintended consequence that is even now not fully accepted by the key players in the unfolding drama.  Let's hope they get there before it's too late because it has an enormous cost.

I've yet to hear a single economic benefit that arises from leaving the Single Market.  Has anyone? After all, nobody involved actually wants to leave it but leave it they will because they laid down their conditions then stood with their fingers in the ears for the next 12 months shouting "blah blah can't hear you, can't hear you" as loudly as humanly possible. 

Sectoral Deals

When does tragedy become farce?  I'm no theatre critic but it's something to do with a circumstantial inability to change course leading to a farcical repetition of hilarious errors.   Is Brexit a farce?  Let's find out using the invincible myth of sectoral deals as a case study.

In the context of Brexit, a sectoral deal is an agreement that allows a specific industry to effectively remain in the Single Market or Customs Union or both.  For example, a deal might be struck so that everything coming in and out of the Sunderland Nissan car factory is treated as though the UK was still a member of the EU.  All those worries about delays, tariffs, regulatory harmonisation and country of origin certification would just magically vanish if only the UK had a system of sectoral deals in place with the EU.   The Germans would be crazy not to want this, right? Won't they also benefit from sectoral deals?  Wrong.

Since last July the EU has been utterly consistent in its refusal to accept sectoral deals.  Theresa May herself even ruled out sectoral deals by rejecting the Swiss model.  Despite a universal lack of enthusiasm for sectoral deals, the Prime Minister eventually decided it was a good course after all and started to deploy various euphemisms to make it all sound better than it really was.  I don't know what happened but the dream seemed to die quite quickly in the early New Year.  Was it Ivan Rogers relaying his impressions of the EU to furious politicians? Did a fresh wheeze take priority? Did they finally listen to the cacophony of EU communications on the topic?  We'll never know but it was barely mentioned again until Jeremy Hunt brought it back to life in the pages of the Financial Times.

 Hallelujah, sectoral deals are back on the UK's metaphorical table.  We thought they were dead but they live on in our own minds like cyphers from the past.  It turns out that Jeremy Hunt and Greg Clark were so worried about pharmaceutical regulation that they wrote to the Financial Times laying out their plans for a sectoral deal on medicines. It's worrying enough that Cabinet debate is now carried out in newspapers but it's much more terrifying to learn that the most senior politicians in the land spend their days on fantasy island.  Poor old Michel Barnier had to reject it one more time.

I almost feel sorry for Michel Barnier.  He must be sick of this already and there's years left to go.
The really sad part in all this is that the EU has already published its legally binding negotiating guidelines for Michel Barnier and his team. They do not include sectoral deals.  Nothing more needs to be said.

General Election

This barely needs to be said but it would have made more sense to have had the General Election before delivering the Article 50 letter than after.  There is really no point in seeking a mandate for something that you did three months ago and that you claim is irreversible.

Row Of The Summer 


The lack of planning puts the UK in a dreadfully weak situation in its negotiations with the EU.  For example, it is not in the UK's interests to strictly order the negotiations so that trade is tagged on at the end, as proposed by the EU. The UK, of course, wants to immediately start discussing trade in parallel with the divorce settlement.  David Davis said this would be the "row of the summer".  The problem is that he was unable to offer an alternative to the EU's detailed itinerary.  After all, if there is only cheese in the fridge then I know what I'll be having for dinner even if I don't fancy it much.

As it stands, the UK's only negotiating position is to agree or disagree with the EU's proposals because David Davis has failed to make credible counter proposals.  Even that description adds nuance that isn't there: David Davis can agree or disagree with the EU's proposals all he likes but he will have to go right ahead and accept them because they are a) the only proposal on offer and b) the only route to a trade deal due to a) the lack of credible UK proposal.

The "row of the summer" is an artifact of a much deeper problem.  The issue is not just that the government have failed to plan for Brexit but that they are still arguing among themselves about what they want to achieve.  Philip Hammond and Liam Fox are arguing about Customs Union membership;  Jeremy Hunt and Greg Clark are arguing in vain about sectoral deals;  Davis and Hammond are arguing about the need for transitional phases; Boris Johnson still thinks he can have his cake and eat it. They are doing this in public view despite the accepted protocol of collective Cabinet responsibility. 

The UK truly is the laughing stock of Europe so I suppose Brexit has at long last turned from tragedy to farce.


Brexit strategy is a mix of unintended consequences, lies that spun out of control,  misunderstandings, stupidity, an inability to listen, an inability to comprehend detail, knee-jerk reaction to media pressure, a refusal to discuss trade-offs lest it upset the "will of the people".  What else can go wrong?  I'll do another report card in 12 months time.  See you all then.

This can all be avoided by voting Yes in a second independence referendum,


PS The Labour Party don't fare much better.  They didn't make the ECJ mistake but they are definitely still in the "cake and eat it" bakery. Just listen to their "jobs-first Brexit" and "Brexit for the many, not the few" and you soon get the idea.

PPS I'd like to make clear that today's mess is not an inevitability:  there certainly is a path out of the EU for any member nation.  It is guaranteed to be a long process of no less than 10 years with significant economic and political risk attached.  Maintaining political and public will to complete the process is a herculean task but it is achievable.  It almost certainly requires a callibre of political leadership lacking in UK politics today.

PPPS I didn't even mention Scotland. The way that Scotland has been treated in all of this is nothing short of a scandal.  Remember the Brexit hotline that nobody answered?  The lie that devolved parliaments would be involved? The complete lack of attention given to the Scottish Parliament's White Paper?  I didn't mention any of that because the average reader of this blog knows much more about it than I do.