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2018 Brexit White Paper

31st July 2018 by newtjoh

The December 2017 interim withdrawal agreement (the draft Article 50 divorce treaty) requires Northern Ireland (NI) – specifically – to stay in regulatory and customs alignment with the EU. This to avoid a hard border between the two Irelands, which is an accepted red line for both the EU and the UK.

It would, however, create a customs border in the Irish Sea, unless the UK continued to remain in the Customs Union (CU) and Single Market (SM) past the transitional period posited to end in December 2020. Both end-states have been consistently rejected by Mrs May. The horns of her dilemma are thus. To escape them, beginning with her Mansion House speech, she initiated a process involving the loosening of some-stated red lines, even if almost imperceptibly, such as conceding that continuing to participate in EU agencies will involve some measure of at least indirect European Court of Justice (ECJ) jurisdiction.

Her slogan that ‘Brexit means Brexit’ was displaced by a more nuanced approach that, in effect, simply recognized the inevitable: that any agreement would require from both sides some measure of pragmatism and compromise, not least from the UK, which would suffer the most from a disorderly ‘no deal’ exit.

At the same time, with the resignations of Damien Green and Amber Rudd, her erstwhile deputy and home secretary, respectively, she lost her ‘soft’ Brexit majority within the Cabinet Brexit sub-committee. As time ran out for the UK to present a coherent package of proposals to Brussels that could stand even the remotest chance of being progressed to agreement with the EU no later than December, she finally took the plunge and convened a Cabinet awayday at Chequers on the last day of June and provided it with a firm brief to agree and produce such a package.

That it duly did without too much apparent discord. Initial impressions, however, were deceptive, insofar that within three days, the prime minister’s Brexit and Foreign Secretary resigned. It soon became apparent that Mrs May will struggle to get any subsequent agreement based on the package – as formalized in a Brexit White Paper   (the white paper) published nearly a month later in mid-July –  through parliament, as hard-Brexiteer opposition on her backbenches to it  hardened.

The purpose of this post is to consider the details of her package as set out in the white paper in detail sufficient enough to allow any assessment to be made of its likely fate, with a particular focus on the Facilitated Customs Agreement (FCA).

The white paper outlines a future ‘economic partnership’ with the EU, including:
• A common rulebook for goods including agri-food limited to (the relevant rules) those necessary to provide for frictionless trade at the border (avoiding customs and other inspections);
• On-going UK harmonisation with such necessary and relevant EU rules, when approved by Parliament or by the devolved legislatures;
• Continuing participation by the UK in EU agencies that provide authorisations for goods in highly regulated sectors – namely, the European Chemicals Agency, the European Aviation Safety   Agency, and the European Medicines Agency – with the UK accepting their rules and contributing to their costs;
• The phased introduction of a new Facilitated Customs Arrangement (FCA) that would remove the need for customs checks and controls for goods traded between the UK and the EU as if they were within a combined and new customs territory, but where the UK could set its own tariffs for trade with the rest of the world (ROW);
• The negotiation of sector-specific arrangements for services and digital, providing regulatory freedom outside EU rules for the UK’s services-based economy;
• UK to be no longer bound to the Common Commercial Policy (CCP), the Common Agricultural Policy (CAP), and the Common Fisheries Policy;
• Freedom of movement (FOM) to end, to be replaced by a negotiated migration policy covering UK and EU nationals.

Trade in services, therefore, which accounts for over 80% of UK output, although less than half of its current exports, will no longer be subject to EU single market regulation. This, the government accepts, will involve ‘some’ loss of market access to the EU for the largest segment of the economy: it follows that net economic loss can only be avoided if that is offset by an increase in service exports to the ROW, noting that such service exports are not really constrained by EU membership at present.

The UK Parliament could post-exit refuse to implement new regulatory standards and requirements decided in Brussels pertaining to goods, but with the knowledge that adverse economic consequences could follow. That would make any such freedom, however, very much an unappealing Hobson’s choice: a yes, of course you are free to leave, but beware that you will need to dodge the bullets in the process type of choice.

More fundamentally, the separate treatment of goods and services that lies at the heart of the package, presupposes that the EU will concede the divisibility of its cherished four overarching freedoms of capital, goods, services, and people in an arrangement with a third-party (the UK) that has chosen to leave its club.

Leaving aside these first-order obstacles or issues, the actual design – as sketched out in the white paper – of the FCA appears to require a leap of faith on the part of the EU for it to be accepted, at least without substantive modification during the negotiation phase.  Such a process of modification will require May to further blur her red-lines, including a continuing role for  EJC jurisdictional oversight over the operation and interpretation of the agreed regulatory alignment, probably to the point of her accepting that it must continue in a binding form – regulated by processes that the EU can control – until alternative permanent arrangements can be agreed and put in force, perhaps many years down the road.

A dispassionate analysis indicates that the FCA cannot really run; yet the alternative prospect of ‘no deal’, however, could serve to concentrate minds on both sides of the Channel for sufficient fudge to be shovelled on it for a vague version of a withdrawal agreement and accompanying political declaration to be presented to parliament close to the wire.

Will the facilitated customs arrangement (FCA) fold of its own contradictions?
In June a Government technical note on a temporary customs arrangement, set out most of the government’s stall as to what the FCA would entail. On the insistence of David Davies, the then-Brexit secretary, this temporary arrangement was strictly time-limited to end no later than December 2021, after coming into force when the implementation (transition) period in December 2020, whereas the white paper, published in July after the Chequers agreement and Davis’s resignation, wisely avoided such prescriptive time-limiting.

Indeed, to suppose that a comprehensive Free Trade Agreement (FTA) or other ‘permanent customs arrangement’ replacement to the ‘temporary’ FCA could be negotiated and put in place by 2021 was incredible; based on the experience of the less ambitious Canadian CETA agreement with the EU, such a replacement could even exceed six years to finalise, although it can be expected that efforts will be made to shorten that gestation period. The white paper is also indeterminate on the relationship of the FCA to any future replacement arrangements. This, again, is sensible; these will only begin to take shape after the UK formally exits the EU.

The FCA is offered rather as a temporary arrangement that would prevent the need for a discriminatory and fragmentary NI backstop to come into play, once the transition period ends in 2021. The alternative of a border in the Irish Sea is, of course, unacceptable to both the UK government and parliament. It follows that the FCA cannot be strictly time-limited while it remains an interim arrangement put into place to avoid a hard NI border: it will need to remain in place until alternative replacements are agreed and put in place, whenever they are. The FCA would hardly be worth the candle, in any case, for either party, if it was to be the temporary short-lived arrangement that it sometimes touted to be.

In terms of the mechanics of how it will work, the FCA will replicate existing EU customs union (CU) processes to allow the UK to collect the full the correct EU common tariff (CET) for imported goods deemed destined for EU27 countries, before remitting it back to Brussels. Goods imported from non-EU (ROW) countries – but deemed for domestic consumption – would alternatively attract a UK-set dedicated domestic tariff (presumably lower than the CET tariff, in most cases).

The white paper expresses the hope that this dual-tariff combination would facilitate the greatest possible trade with the EU and the ROW. The flow of goods between the UK and EU, particularly those involving deep and inter-connected supply chains (engine made in Germany, gearbox in Italy, car in UK etc) would remain unimpeded. The UK, at the same time, would be freed to strike new independent trade deals.

It also supposes that the correct EU or UK tariff will be applied and paid ‘up-front’ ‘up to 96%’ of the time, reducing the need for non-EU imports to be either tracked within the UK and/or the tariff to be adjusted retrospectively, to just 4% of occasions.

Trade experts have already cautioned that this appears an optimistic hope that is not evidence-based. A forensic analysis by the UK Trade Observatory, for example,  Decoding the Facilitated Customs Arrangement , points out the stated or implicit assumptions that the white paper appears to rely upon to derive that figure, are heroic. Most notably, ‘trusted traders’ or Authorised Economic Operators (AEOs), as they will be known, will be responsible for the importation of  100% finished goods and of 81% of the remaining total of intermediate goods (those used as inputs into finished goods) imported from non-EU countries that, as such, will be subject to either the CET or the UK tariff when the transition periods ends in December 2020.

The EU CET tariff on finished or consumption goods, such as on foodstuffs, can be expected to be appreciably higher relative to what the UK will freshly set for imports from non-EU countries destined for domestic consumption once the FCA comes into operation as envisaged in January 2021.  A strong incentive would therefore exist where the UK duty was levied – especially where the imported goods in question could easily be broken down and distributed in small loads,  for them to be deemed as destined for domestic consumption or use and then  split up into smaller lots, once they enter into the UK jurisdiction area. They could then be trans-shipped to the EU, whether across the NI border or other UK borders with the EU, with the dishonest trader or other agent profiting form the difference between the domestic UK and EU tariff.

Some batches of intermediate goods could be also split up to evade correct payment of duty, for the same reason. In short, the existence of the dual-tariff will therefore tend to encourage agents of ROW countries to import goods and re-export to them to the EU via the UK to secure the benefit of a lower domestic tariff: the bigger the difference, the bigger the potential trading arbitrage profit, and the bigger the incentive to cheat.

The white paper’s implicit assumption that approved or trusted traders will never levy the wrong duty, whether that is due to commission, to negligence, to the dishonesty of other agents, or to simple error, preventing any  consequent loss of revenue to the EU –  or related loss of trading advantage to EU27 members, is, to say the least, implausible, therefore.  The EU chief negotiator, Michel Barnier,  in his initial public response to the white paper cites that precise real fear as shedding doubt on the workability and acceptability of  the FCA. That it would allow the UK, as a non-member third-party, to collect tariffs on behalf of EU outside its legal structures and purview, and that it would involve added bureaucracy and thus additional costs for the EU to monitor, was likewise cited.

Barnier also indicated that although agri-food and pesticide inspections will not need to be undertaken at the border (material to the NI border context, where border food and animal-based traffic is significant), they will still need to be subject to EU rules and regulation. This would appear to rule out any real progress on a replacement UK-US trade deal involving a departure from EU food standards. The scope for significant new trade deals with the ROW seems to be limited largely to services. And even these are likely to be limited in scope for a variety of reasons, including the unwillingness of potential partners, such as India, to grant greater service access to the UK in the absence of UK concessions, such as visa liberalisation for their nationals.

But, in any case, it remains unclear, however, why the EU should give the UK – a state that has chosen to leave its ‘club’ and become a non-member third-party – special customs arrangements that add complexity and associated scope for error and confusion, in a way that is contrary to the efficient operation of both its CET and CCP, while allowing that same country to continue to benefit from existing, and to retain an input into new, FTA’s agreed between the EU and the ROW.

With respect to the harmonization of future UK and EU rules to the extent that such harmonisation is necessary for continuing ‘frictionless’ trade in goods between the UK and EU to proceed consistent with the NI backstop, the EU can be expected, as a minimum, to insist on interpretation and enforcement mechanisms that give the final say to its own institutions, most particularly the ECJ, rather than rely on the proposed institutional joint-committee structure that the white paper proposes; to do otherwise would risk the UK diverging from EU rules to the detriment of its members’ interest,without adequate or timely recourse.

Besides, the mood-music coming from, not only from Barnier and the European Commission, but also from key political leaders, continues to march to the tune that the four freedoms of the single market – goods, services, capital, and people – are both inviolable and indivisible.

A trite and an obvious observation, perhaps, but something must give if deadlock and a disorderly UK exit is to be avoided. Exactly what will depend upon whether the respective EU and the Conservative government ‘red-lines’ remain inviolable in strict practice and, if not, the extent to which both are willing to fudge them – or allow them to be flexibly applied – to secure the wider end of putting a negotiated deal together that could be offered to the UK parliament with at least some prospect of success.

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Filed Under: Brexit Tagged With: Brexit white paper, Customs union, Mrs May, single market

Soubry’s Norway-plus approach

13th February 2018 by newtjoh

The case that Labour should support any amendments that sought to maintain de facto customs union (CU) membership infinitely – at least until an improved and sustainable alternative emerges was made in https://www.asocialdemocraticfuture.org/time-labour-protect-national-interest-voting-cu/ .

Certainly if the UK government does not present very soon a coherent picture of its desired Brexit end-state, Barnier on behalf of the EU will simply begin to impose on the UK a settlement that is consistent with the legally-binding phase 1 agreement.

The Phase 1 agreement made it inevitable that the UK maintains a mutually agreed de facto CU with the EU during any transition period. Regulatory alignment and the avoidance of immigration checks along either the Eire/NI or between the NI and the rest of the UK, seems also to suggest an arrangement very close to continuing de facto single market (SM) membership.

The current efforts of the Conservative MP, Anna Soubry, to marshal cross-party support for a European Economic Association/ European Free Trade Association (EEA/EFTA) + CU (Norway-plus) option are consistent with UK adherence to that Phase 1 agreement.She highlights other selling points of such an approach, apparently directed at ‘leaver-lites’.

First, such a Norway-plus option would still allow the UK to exit the Common Agricultural and Fisheries Policies, membership of which has increased prices for UK consumers, while the latter  has hastened the decline of Britain’s fishing industry.

Second, it would possibly allow some wriggle room to escape direct European Court of Justice (ECJ) jurisdiction – through the EFTA Court and associated treaty provisions.

Third, the SM freedom of movement (FOM) requirement could possibly be combined with some measure of immigration control based on work permits.

Fourth, the UK could possibly seek to negotiate alternative trade deals as a EFTA member.

These claims are contestable in terms of EU acceptance, while their actual potential relevance in practice could well be thwarted by the weight of complexity and trade offs involved in, for example renegotiating fisheries with the EU.

And what Soubry and colleagues have also not clarified is whether Norway-plus would just be a transition to another end state, and if so for long that it would apply. This is material, as neither the EEA nor EFTA were envisaged as transitional arrangements for a country on a journey to somewhere else, although there is always a possible first time for everything.

If Norway-plus operated as a two year transition, the UK would still face a cliff edge in 2021 when that ended, as it would not be possible for the UK to negotiate alternative trade deals within that period, implying a much longer time period that it would need to operate.

In any case it remains unclear how many Conservative MP’s are prepared to sign up to support to such a position, which, in effect, commits the government to the softest brexit. Perhaps the threat of revolt is being used to force May to formally align with the Phase 1 agreement that it signed only last December.

Across the benches, it is perhaps understandable that the Labour front bench continues to be cautious in taking the lead in trying to force the government to face up the inevitability of de facto staying in the CU and SM, for fear of providing political space to May to paint Labour as the referendum-reversing party: safer instead to act as to bystanders to a mess created and made worse by the Conservatives, and wait for its consequences to unravel, without risking splits within its own ranks by imposing three line whip, which some Labour Brexiteers might well then defy.

Although it is inevitable that the government’s position will unravel, less clear is precisely when it will.

Yet the national interest and the particular economic interests of those of the ‘left-behinds’ located in brexit-voting constituencies, such as Sunderland, demand that Labour discharges its responsibility as the official opposition, and steps up, not only to hold the government to account for its backtracking from the Phase 1 agreement, but in order to require the government to adhere to it, while offering them a compelling vision of a post-brexit UK.

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Filed Under: Brexit Tagged With: Anna Soubry, brexit, Customs union, EEA, EFTA, single market

Can the UK long term stay in a CU outside the SM?

21st January 2018 by newtjoh

The Confederation of British Industry (CBI) through its director-general has indicated that it considers that long-term continuing membership of the customs union (CU) is in accord with UK economic interests, even though continuing CU membership would appear to preclude the UK from negotiating bespoke trade deals with third party countries outside the EU.

It is indeed doubtful that future gains actually realisable from any such future deals would offset the economic costs of the UK losing the advantages of SM membership, given the concentration of trade that the UK has with its european neighbours.

Certainly it is difficult to see how a hard border between Eire and N.Ireland could be avoided – a key plank of the brexit stage 1 agreement between the UK and EU – if the UK exits the CU.

But is it really possible for the UK to continue in the CU indefinitely, while in parallel disengaging from the the obligations and processes of the single market(SM)?

Cutting a complex and uncertain reality to its essentials, post-brexit UK regulatory autonomy appears inconsistent with it maintaining regulatory alignment with the EU.

In the absence of such alignment, it highly doubtful that ‘frictionless’ trading of both goods and services can be maintained even if the UK retains some sort of de facto CU membership.

The UK could offer to continue to ensure such regulatory compliance through domestic regulations and processes. But there would need to some assurance assurance and compliance system that would satisfy EU SM requirements, that would appear, inevitably, to involve continuing ECJ oversight or something comparable, at least well into the medium term.

Yet both the May government the Labour leadership appear still appear to seek bespoke bilateral arrangements where the UK could continue to secure the advantages of SM membership, while jettisoning perceived accompanying unwelcome requirements, including free movement, ECJ jurisdiction, and in the case of Corbyn, restrictions on state aid.

But the French President, Macron, has recently made it clear again that continuing UK access to the single market, including its financial services, requires the UK to continue to contribute to the EU budget and to acknowledge European jurisdiction, as well as honour free freedom of movement of labour and capital, if it wishes to continue to benefit from the free and frictionless movement of goods and services.

He also did hint that that some bespoke tweaks relating to how UK adherence to SM requirements could be interpreted or portrayed might possibly be on the table (one example could be on how EU oversight of UK regulatory compliance is defined), while reiterating that no fundamental breach to the institutional SM architecture would be entertained.

The UK tactical bet seems to be that the attractions and importance of the UK as a trading partner will trump the determination of the EU
to conserve the complete integrity of the SM and its rules during this year’s negotiations. That appears wishful thinking.

Such a misguided approach detracts from a UK negotiating position that is best capable of maximising UK benefit from a least economically damaging settlement.

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Filed Under: Brexit, Time for a Social Democratic Surge Tagged With: brexit, CBI, Customs union, single market

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