Brexit does not mean Brexit Mrs May

Since my post of 27th January 2018, I have been pointed to another European Union publication (h/t "Britainsfish") which is on the internet here: (http://eur-lex.europa.eu/resource.html?uri=cellar:e0727eef-e727-11e7-9749-01aa75ed71a1.0003.02/DOC_2&format=PDF) 

This document has been amended for the Final Version which has been leaked (h/t "Sentinel") and which has been analysed by Professor Steve Peers here (http://eulawanalysis.blogspot.co.uk/2018/01/phase-2-of-brexit-talks-annotation-of.html?m=1)

Paragraphs 9 - 21 deal with "Transitional Arrangements". Paragraph 9 specifically says

the four freedoms of the Single Market are indivisible and there can be no "cherry picking"

which would not be the case if we had chosen the European Economic Area route and unilaterally invoked Article 112.  Then there are paragraphs 12 - 18 which are so awful that I quote them in full:

12. In line with those guidelines, which further specify and develop the core principles laid out in the European Council guidelines of 29 April 2017, any transitional arrangements provided for in the Withdrawal Agreement should cover the whole of the Union acquis, including Euratom matters. Notwithstanding paragraph 17 of these negotiating directives, the Union acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the Union acquis should automatically apply to and in the United Kingdom during the transition period. For acts adopted in the Area of Freedom, Security and Justice by which the United Kingdom is bound before its withdrawal, Articles 4a of Protocol (No 21) and 5 of Protocol (No 19) annexed to the Treaties, which allow the United Kingdom not to participate in an act amending a measure by which it is already bound, should continue to apply during the transition period including the possibility for the Union to determine that this non participation would make the relevant measure inoperable and therefore that the measure should cease to apply to the United Kingdom. The United Kingdom should however no longer be allowed to opt-in to measures in this Area other than those amending, replacing or building upon the above mentioned existing acts. 

13. During the transition period, Union law covered by these transitional arrangements should deploy in the United Kingdom the same legal effects as those which it deploys within the Member States of the Union. This means, in particular, that the direct effect and primacy of Union law should be preserved. 

14. During the transition period, and in line with the European Council guidelines of 29 April 2017, the United Kingdom will remain bound by the obligations stemming from the agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly, while the United Kingdom should however no longer participate in any bodies set up by those agreements. 

15. In line with the European Council guidelines of 15 December 2017, any transitional arrangements require the United Kingdom's continued participation in the Customs Union and the Single Market (with all four freedoms) during the transition. The United Kingdom should take all necessary measures to preserve the integrity of the Single Market and of the Customs Union. The United Kingdom should continue to comply with the Union trade policy. It should also in particular ensure that its customs authorities continue to act in accordance with the mission of EU customs authorities including by collecting Common Customs Tariff duties and by performing all checks required under Union law at the border vis-à-vis other third countries. During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union.

16. In line with the European Council guidelines of 29 April 2017 and the first set of negotiating directives of 22 May 2017, any time-limited prolongation of the Union acquis requires existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply, including the competence of the Court of Justice of the European Union. 

17. In relation to the application of the Union acquis to the United Kingdom, the Withdrawal Agreement should therefore, during the transitional period, preserve the full competences of the Union institutions (in particular the full jurisdiction of the Court of Justice of the European Union), bodies, offices and agencies in relation to the United Kingdom and to United Kingdom natural or legal persons. In particular, Union institutions, bodies and agencies should conduct all supervision and control proceedings foreseen by Union law. In line with the European Council guidelines of 15 December 2017, the United Kingdom will however no longer participate in or nominate or elect members of the Union institutions, nor participate in the decision-making or the governance of the Union bodies, offices and agencies. 

18. During the transition period, as a general rule, the UK will not attend meetings of committees referred to in Article 3 (2) of Regulation (EU) No 182/2011 or Commission experts groups and other similar entities of the agencies, offices or bodies where Member States are represented. Exceptionally on a case-by-case basis, the United Kingdom could be invited to attend without voting rights such meetings: 

– where the discussion concerns individual acts to be addressed to the United Kingdom or to United Kingdom natural or legal persons; or 

– where the presence of the United Kingdom is necessary from a Union perspective for the effective implementation of the acquis during the transition period.

It is hard to state just how dreadful these proposals are. In effect, the Acquis, New laws and Directives, the Customs Union and EU trade policy (meaning the UK cannot conclude any trade agreements in its own right) will continue to apply whilst the United Kingdom will have no representation of any kind whatever (No MEP's, No Commissioner, No participation in any agreements or committees although we could be invited by the commission to various committees as it (the Commission) sees fit but without a say or vote). The United Kingdom will still be subject to the ECJ and European Law will have primacy (over UK Law)

David Davis (h/t www.eureferendum.com) made a speech in Teeside. Part of it reads as follows:

For such a period to work, both sides must continue to follow the same, stable set of laws and rules. 

Without compromising the integrity of the single market, and the customs union to which we will maintain access on current terms. 

Maintaining the same regulations across all sectors of the economy — from agriculture to aviation, transport to financial services, as part of a new international treaty. 

In keeping with the existing structure of EU rules that will allow a strictly time-limited role for the European Court of Justice during that period. 

During this implementation period, people will of course be able to travel between the UK and EU to live and work. 

And as agreed in December, we will fulfil the financial commitments we have made during the period of our membership. 

With Britain upholding its responsibilities during this period, it follows the European Union will need to respect our rights and our interests too. 

And this means we must discuss how regulators and agencies can best provide continuity and clarity for businesses during this period in a way that benefits everyone. (https://www.gov.uk/government/news/david-davis-teesport-speech-implementation-period-a-bridge-to-the-future-partnership-between-the-uk-eu)

So there you have it. We will not have left the European Union at the end of March 2019. We will not have any MEP's, Commissioner or any representation on any committee or any other body and be subject to the ECJ. The United Kingdom will become a Vassal State  It seems the Cabinet, of which Mr Davis is a member, will sign up to this disgrace.

Everything has changed; Everything has changed

Brexit does not mean Brexit Mrs May. The United Kingdom will not have left the European Union until at least 31st December 2020 and since Mrs May's 'deep and special' relationship (which she has so far been unable or unwilling to describe) with the European Union will not have been concluded by then (since Free Trade Agreements with other nations have taken the European Union many years to conclude) it may go on longer than that taking us into the next Multi-annual Financial Framework (MFF) period and contributing to EU coffers for another SEVEN years. 

We would be a continuing Vassal State for far longer than 21 months.

This is intolerable and the electorate must not accept it.

There are local elections in May. All Leave voters must vote tactically to get rid of their Conservative Councillors or to ensure that the Conservative does not get elected. If the Conservatives are wiped out completely they might, just might listen to the electorate. 

The United Kingdom is not leaving the European Union. Mrs May is misleading the people and Brexit does not mean Brexit.

EEA (European Economic Area) not Vassal State

The Conservative party position as presented by the Prime Minister is that the United Kingdom will leave both the European Single Market and The European Customs Union when it leaves the European Union.

The Labour party position is that, depending on who you are listening to, that the United Kingdom should stay in the European Single Market and the European Customs Union when it leaves the European Union.

The United Kingdom cannot stay in the European Customs Union when it leaves the European Union. The European Customs Union is defined in the Treaty on the Functioning of the European Union (TFEU) Article 28:

The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.

and then in the next article headed "The Customs Union" it states:

THE CUSTOMS UNION 

Article 30 (ex Article 25 TEC) 

Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.  (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN)

Leaving the European Union NECESSARILY requires that the United Kingdom leaves the European Customs Union. Once the United Kingdom has left the European Union it will need to draw up a new Customs Agreement between itself (by then a third country) and the European Union.

That is not the case however with the European Single Market. The European Single Market is the European Economic Area (EEA). The European Economic Area is a vast geographical space from Iceland to Greece and Portugal to Poland (https://en.wikipedia.org/wiki/European_Economic_Area). 

Theresa May, the MP for Maidenhead, Leader of the Conservative Party and Prime Minister says that if we stay in the European Economic Area then we have not left the European Union. She has apparently been told this by her former special advisor (SpAd) Nick Timothy who, it seems, she regards as talking sort of infallibly. This view of Mrs May's is nonsense. 

If the United Kingdom moved from the European Union to the European Economic Area that would not make the United Kingdom continuing members of the European Union. 

In the EEA, the UK would be out of the jurisdiction of the European Court of Justice (ECJ) since in the EEA there is the EFTA court instead which does not necessarily follow the rulings of the ECJ although it takes account of them. The UK would be out of the Common Agricultural Policy (CAP), the Common Fisheries Policy (CFP), The European Customs Union, the Common Trade Policy (and thus be able to conclude our own bi-lateral or multi-lateral trade agreements), The Common Foreign and Security Policy, Justice and Home Affairs and Monetary Union (which we do not partake in anyway) (http://www.efta.int/eea/eea-agreement)

Moreover although it is true that the EEA countries subscribe to the four freedoms (the Freedom of Movement of Capital, Goods, Services and People) this application can be changed by the unilateral (that means you don't have to ask anyone else) invoking of article 112 of the European Economic Area agreement:

CHAPTER 4 SAFEGUARD MEASURES 

Article 112 

1. If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113. 

2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement. 

3. The safeguard measures shall apply with regard to all Contracting Parties. 

Article 113 

1. A Contracting Party which is considering taking safeguard measures under Article 112 shall, without delay, notify the other Contracting Parties through the EEA Joint Committee and shall provide all relevant information. 

2. The Contracting Parties shall immediately enter into consultations in the EEA Joint Committee with a view to finding a commonly acceptable solution. 

3. The Contracting Party concerned may not take safeguard measures until one month has elapsed after the date of notification under paragraph 1, unless the consultation procedure under paragraph 2 has been concluded before the expiration of the stated time limit. When exceptional circumstances requiring immediate action exclude prior examination, the Contracting Party concerned may apply forthwith the protective measures strictly necessary to remedy the situation. For the Community, the safeguard measures shall be taken by the EC Commission. 

4. The Contracting Party concerned shall, without delay, notify the measures taken to the EEA Joint Committee and shall provide all relevant information. 

5. The safeguard measures taken shall be the subject of consultations in the EEA Joint Committee every three months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application. Each Contracting Party may at any time request the EEA Joint Committee to review such measures. (http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf )

I think that the United Kingdom could successfully argue that it believes that "serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising" because of Immigration and unilaterally suspend Freedom of Movement (important observation: this would only apply to immigration of EU nationals I believe and not Commonwealth ones). 

The European Union has proposed its own solutions in a recent paper which this blogger continues to assert are completely unacceptable (http://www.consilium.europa.eu/media/32236/15-euco-art50-guidelines-en.pdf). Paragraphs 3 & 4 state:

3. As regards transition, the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions, nor participate in the decision-making of the Union bodies, offices and agencies. 

4. Such transitional arrangements, which will be part of the Withdrawal Agreement, must be in the interest of the Union, clearly defined and precisely limited in time. In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions, bodies, offices and agencies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union. As the United Kingdom will continue to participate in the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariff and collect EU customs duties, and to ensure all EU checks are being performed on the border vis-à-vis other third countries.

Mrs May has before her two choices: 

She could sign up to a situation where the United Kingdom does what it is told without any representation until at least 31st December 2020. As her new 'deep and special' relationship with the European Union will not be completed by then, this Vassal status will be ongoing perhaps indefinitely. 

OR

She can stay in or rejoin an organisation which takes the United Kingdom out of the European Union. Inside the European Economic Area, the United Kingdom could have its own trade, fishing and agricultural policies separate from the EU but still retain all its regulatory alignment with the EU with these new policies

If Mrs May chooses the former, I think she will condemn her party to a generation of opposition. The electorate are not stupid. They will see the Vassal state for what it is and they will not stand for it.

Vassal state means continuing membership of the European Union without representation.

The European Economic Area means the United Kingdom has left the European Union.

It must be EEA for the United Kingdom. 

Playing the Game

When you buy a board game, the first thing you do is read the rules. The rules tell you the order in which you do things such as 'roll the dice, pick up a card from the deck, move your playing piece the number of spaces on the board, then carry out the instructions on the card'.

The same thing applies to the European Union. In order for a state to leave the European Union, things must be done in a certain order. Article 50 of the Lisbon Treaty reads as follows:

Article 50 

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

'In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.' (My Emphasis).

As Dr Richard North on EUReferendum (www.eureferendum.com) tirelessly points out, Article 50 of the Lisbon Treaty deals ONLY with the withdrawal agreement. Thus in the 'rules of the game' analogy:

1. The United Kingdom gives notice of its intention to withdraw from the European Union
2. The United Kingdom then negotiates with the European Council representing the EU27 the arrangements for its withdrawal
3. Once the United Kingdom has withdrawn from the European Union it can then negotiate a new deal which is NOT part of the withdrawal deal.
4. As a third country i.e. not part of the EU, it then can negotiate deals with other non EU countries as well as with the EU27 (as one entity).

It seems that the European Union is willing to let the United Kingdom have some kind of implementation period lasting until 31st December 2020 (i.e. 21 months from 'Brexit day') on very specific conditions:

3. As regards transition, the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions, nor participate in the decision-making of the Union bodies, offices and agencies. 

4. Such transitional arrangements, which will be part of the Withdrawal Agreement, must be in the interest of the Union, clearly defined and precisely limited in time. In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions, bodies, offices and agencies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union. As the United Kingdom will continue to participate in the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariff and collect EU customs duties, and to ensure all EU checks are being performed on the border vis-à-vis other third countries. (http://www.consilium.europa.eu/media/32236/15-euco-art50-guidelines-en.pdf )

This blogger thinks that these conditions are completely unacceptable. In March 2019 the United Kingdom will not have any members of the European Parliament, nor any commissioner, nor any person on any European Body (committees, talking shops, negotiation platforms etc) and thus the transition arrangements will be

"In the interests of the Union"

They will NOT be in the interests of the United Kingdom;  they will be in the interests of the (European) Union. In addition:

"All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union."

In other words, the rules of the game on the card we have just picked up from the pile say that we have to do as we are told with no say, no influence and no input and have to accept whatever it is that we are told to do without argument. The European Union has told the UK that the period will terminate at the end of 2020 which coincides with the current Multi-Annual Financial Framework period (http://ec.europa.eu/budget/mff/index_en.cfm)

If this is not accepting orders via email and fax with no say, I don't know what is. This is what, falsely, "Grossly Incompetent"  David Cameron said Norway did as an EFTA state. It doesn't. Norway has a say at the drafting stage and as the legislation develops. The United Kingdom will literally have no say. It will become a vassal state - the worst of all worlds (http://www.eureferendum.com/blogview.aspx?blogno=86705)

I am not a treaty expert nor an expert in Free Trade Agreements but the facts seem very simple. The United Kingdom will not have any kind of new trade agreement let alone a "deep and special relationship" of the kind that Mrs May wants (http://www.independent.co.uk/news/uk/politics/brexit-latest-talks-downing-street-theresa-may-jean-claude-juncker-michel-barnier-eu-a7704561.html) when it leaves the European Union because the rules don't allow for that.

When the United Kingdom leaves the European Union it does so without a deal and THEN as a third country negotiations on a new deal can start. 

Of course Theresa May could open negotiations to join EFTA today and negotiate to stay in the European Economic Area. As far as I am aware the United Kingdom can start to negotiate new arrangements whilst it is a member of the European Union - it just can't CONCLUDE them whilst it is a member of the European Union. 

We could negotiate that our accession to EFTA would be 2 minutes after we leave the European Union on Brexit day (thereby joining EFTA after leaving the EU and becoming a third country) and this would ameliorate many of the issues not least the issue of the Irish Border. On Brexit day we would leave the influence of the European Court of Justice and come under the influence of the EFTA court instead (http://www.eftacourt.int)

It seems to me that the United Kingdom urgently needs to learn to play the game as cleverly as the European Union is doing. The United Kingdom needs to read the rules of the game in order to play it properly.