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Westlake Legal Group > Posts tagged "Customs"

Maximum flexibility – the Government’s starting assumption in post-Brexit negotiations

As we reach that point in January when it definitely is too late to say “Happy New Year” any more, and the one-month mark since the election has rolled by, it seems a natural moment to explore where the new Government goes from here on its most pressing issue. What’s next on the Brexit front?

First, there’s the question of fulfilling that iconic pledge: Get Brexit Done. The Withdrawal Agreement Bill is with the Lords, having stormed through the newly-elected Commons – not surprisingly, given the extraordinary mandate it won at the ballot box.

While it is yet to pass, the progress of the Bill in itself shouldn’t be downplayed. As recently as a few weeks ago, it was possible that this country would never leave the EU at all.

If getting Brexit done is the first priority, the second should be ensuring that it is widely communicated that it has actually happened, at long last. There’s already an effort underway to try to claim that it is somehow impossible to ‘do’ Brexit – that even the act of leaving the institutions of the EU won’t really count, because political debate and change arising from leaving will continue.

This is bogus – obviously, exiting the EU means fulfilling the promise to do so; if it did not, those opposed to leaving wouldn’t be so bothered about it happening – but the spin effort has a reason behind it. The hope in hardcore Remainer/Rejoiner circles is that they can disillusion those who voted Leave and/or for Boris Johnson through bitter experience. Get Brexit Done proved a compelling message, and so they fervently hope to discredit it by arguing it is a broken promise.

I doubt that the Government would actively choose to have the media discussion largely framed, weirdly, through the lens of whether Big Ben should Bong as Brexit happens or not, but their main hope will be that everyone knows that Brexit is happening at that time, on that day, as promised.

So Brexit can indeed be done. And it’s simply inaccurate to talk of the entire future thereafter – negotiating a new relationship with the EU, hammering out trade deals around the world, re-establishing and re-learning ways to govern ourselves in a host of repatriated areas of sovereignty – as amounting to it somehow not happening.

Rather, those are the key elements of post-Brexit life; the fact that democratic self-government needs work and takes time is not a case for having stayed in the EU, it is part of what the goal of ‘Taking Back Control’ always meant.

Much of the Government’s policy for life after EU membership is as yet unpublished and unknown. Some is still being developed, some will be influenced by changes at the top (including the reshuffle and potential Whitehall re-organisation), and some is sensibly kept under wraps ahead of sensitive negotiations.

It is nonetheless possible to glean a few things from what the Government has and hasn’t done so far.

Overall, the signs point to a continuation of the strategy which distinguishes this administration from its predecessor: the belief in practice, not just rhetoric, that successful negotiation rests on the availability of and willingness to pursue a tough alternative.

That position is sometimes misunderstood, and more often misrepresented. Remember all the bombastic claims that Boris Johnson couldn’t possibly get a new deal, that he wasn’t even interested in trying to do so, and even that he actively desired No Deal? And yet his approach worked to avoid exactly that outcome.

Extending that logic from the autumn to today means the Government retains the willingness to march out of transition without a deal, and intends to hold to the deadline of the end of 2020. The size of the majority, and the new popular electoral mandate, bolster that position. They also weaken the routes by which it is possible to breach deadlines while avoiding the blame – it’s hard when one has a majority of 80 to argue that a Hung Parliament forced you into delay, for example.

It might at a push be possible, if both sides have signed a workable future relationship deal before the December deadline, to see some sort of new timetable established – a mutually agreed fudging under a new brand (an implementation period, perhaps?) – but it’s hard to see that being acceptable unless it were brief, strictly time limited, delineated from ‘transition’, and explicitly for the sole purpose of putting the technicalities of an already-agreed future relationship in place.

At the same time, as Stephen Booth recently suggested on this site, there may be an agreement to bundle together the various other deadlines currently scattered through the year – for tricky talks on fishing, financial services equivalence, and data – and reschedule them for the end of 2020, too. ‘Nothing is agreed until everything is agreed’, as somebody once said. After the failure to properly assess the risks of different schedules in the previous round of negotiations, expect Westminster to be far more robust in fighting for its preferred timetable this time.

So what sort of relationship will the UK seek? That is bound up with the time available. The EU’s preference, naturally, would be to argue that a short 11-month negotiation window ought to encourage something akin to continued membership – ongoing compliance with existing EU law and continued ‘dynamic alignment’ with new measures.

The UK’s interests, and the bitter lessons of political experience under Theresa May, argue for the opposite – not starting with the monolith of EU membership and shaving bits off apologetically here and there, but starting from the assumption of maximum flexibility and agreeing to compromise on that where absolutely necessary.

That would be the route by which the back-up alternative – a UK economy designed to out-compete the EU through swift divergence – is easiest to achieve. And therefore it is the most productive way to encourage an agreement instead. It would also, of course, allow the newly-elected Government to frame the negotiations in less apologetic terms than May: self-government is an opportunity, not a risk to be limited, and compromises which the EU might seek are concessions to be won from the UK.

There are signs of the groundwork being laid for such an approach. The Government’s rejection of amendments to the Withdrawal Agreement Bill which would require it to deliver one particular outcome or another from negotiations is a sensible start. If the proponents of those amendments haven’t yet got it, ministers have no intention of starting talks with their hands bound or their position compromised.

We see similar provisions being made for maximum flexibility elsewhere, too. The new Agriculture Bill does not include a legislative ban on new trade deals varying the standards applied to food imports, for example, which had been demanded by the NFU, among others.

Likewise, Clause 26 of the Withdrawal Agreement Bill itself proposes to give ministers the power to issue regulations telling courts (below the Supreme Court, which already has this power) to disregard ECJ and EU case law on a range of potential issues.

That has an obvious implication – the transition period provides for stability and continuity in the authority of EU law over the UK, but if we really need to then we can start to loosen some of those constraints early. The Government hopes, and works on the assumption that, the talks will be productive and constructive – but it retains the right to make provision for the UK to best serve its interests if they do not work out, and rightly so.

It will be worth watching carefully to see how forthcoming legislation like the Immigration Bill might reflect this approach; or, for that matter, if the Budget will contain any measures which could be seen as preparing the UK to compete more energetically with its EU neighbours.

While Brussels sometimes talks as if the UK ought to gratefully sign up to compliance and alignment – some would say obeisance – on all fronts, the fact is that now, more than ever, it is aware of the risk and challenge of a divergent competitor on its doorstep.

The EU knew that Philip Hammond was unlikely to seriously prepare for such an outcome, and that the Parliamentary numbers were not there even if he wanted to do so. Now he is gone and there is a Commons majority, backing a Government which is willing to act if needed.

That was evident as a factor in Angela Merkel’s remarks to the Financial Times this week about Brexit as a ‘wake-up call’ to the EU to become more competitive. Even Mark Carney recently argued that the UK must make the most of its advantage in financial services by retaining flexibility and regulatory self-government.

The implication of all this – the timescale, the preparation of an alternative, the retention of the right to diverge – is that the priority is getting an agreement in good time, without excessive sacrifice of control.

That points to a simpler, looser relationship, which would itself raise two huge questions: first, how would the UK then make the most of its newfound flexibility in terms of domestic regulation and taxation, and negotiation of new trade deals? And second, how would it mitigate the impact on sectors which could lose out as a result – particularly those with complex international supply-chains stretching into the EU, which are fearful of delays and costs from customs complexity?

It is perhaps no coincidence that the other benefit of prioritising a swift agreement is that the Government gains more time to address both of those questions through its actions well before the next election.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Ruparel’s potential ‘landing zone’

Amid the speculation (fuelled by an intriguing silence from those involved) about possible areas of movement and agreement this week, it’s worth reading the following Twitter thread from Raoul Ruparel, the former EU adviser to Theresa May.

We reproduce it neither as a forecast nor necessarily as a recommended approach, but as an interesting exposition of a possible outcome:

Westlake Legal Group Screen-Shot-2019-10-11-at-13.14.58 Ruparel’s potential ‘landing zone’ twitter trade Raoul Ruparel Northern Ireland MPs ETC EU Customs Union Customs Brexit
Westlake Legal Group Screen-Shot-2019-10-11-at-13.15.13 Ruparel’s potential ‘landing zone’ twitter trade Raoul Ruparel Northern Ireland MPs ETC EU Customs Union Customs Brexit
Westlake Legal Group Screen-Shot-2019-10-11-at-13.15.23 Ruparel’s potential ‘landing zone’ twitter trade Raoul Ruparel Northern Ireland MPs ETC EU Customs Union Customs Brexit   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Why the ’22 Executive must tell May to go this week

“As Prime Minister, I am not prepared to delay Brexit any further than 30 June,” Theresa May, Hansard, March 20.

By the time the Prime Minister said these words, in answer to a question from Pete Wishart at Prime Minister’s Questions, it was very late in the day for her.  A week earlier on March 13, the Commons had voted down the Withdrawal Agreement for the second time.  75 Conservative MPs had opposed it in the lobbiesThat week also saw the passing of the Spelman amendment “to take no deal off the table”, and the announcement of a forthcoming vote on extension. Anthony Wells’ YouGov table of opinion polls confirms that the Conservatives have not polled above 40 per cent since that week.

But let us now imagine that, after the EU rebuffed May’s date on April 11, thereby necessitating next week European elections, she had refused their alternative of October 31.  You will say that the Commons would not have tolerated a No Deal alternative – as it had indicated by passing a statutory instrument on March 27 that took the March 29 exit date out of legislation.  And you would almost certainly be right.

However, she could have gone to that lectern outside Downing Street, and said roughly the following: “I told the Commons a few weeks ago that I was “not prepared to delay Brexit any further than 30 June”.  I also said that a consequence of such delay – elections to the European Parliament in Britain – would be unacceptable.”

“Here are my precise words from Hansard on the same day: ‘the idea that three years after voting to leave the EU, the people of this country should be asked to elect a new set of MEPs is, I believe, unacceptable. It would be a failure to deliver on the referendum decision that this House said it would honour’.”

“I believe that politicians should keep their word, and I am therefore resigning as Leader of the Conservative Party.  The Party will now hold a leadership election to replace me, and I expect a new Prime Minister to be in place by the beginning of this summer’s Parliamentary recess.”

Now such an announcement would not have rendered the European elections null and void.  But it might just have persuaded a section of disillusioned voters that, although Brexit had not been delivered on time, at least one politician keeps her promises.  The Iraq War, the expenses scandal, the economic crash: all have, over a span of over 15 years, helped further to lower trust in the system.

As we write, May’s failure to keep her word looks like an addition to that list.  She promised that Brexit would take place March 29 over a hundred times.  It didn’t happen.  She said then she was not prepared to delay it further than June 30.  That end-date won’t happen, either.  Extension ends on October 31.  And she said that elections to the European Parliament would be “unacceptable”.  Then she accepted them.

The point is really very simple.  Voters don’t follow the ins and outs of Brexit – indicative votes, customs arrangements, John Bercow’s rulings, and all that – but they have an unerring nose for smelling out politicians.  The Prime Minister promised that we would leave on March 29 and we didn’t, they think.  Ergo, we won’t vote for her.  So two possible futures for the Conservatives now open up.

The first is that it is too late for a new leader.  May’s stubborness in bringing back her deal for a third time; her refusal to face up to the Commons’ rejection of it; the attempt that has followed to strike a deal with a man she rightly denounces elsewhere as a menace to freedom – all that has poisoned the well for any successor.  The week of March 15 was an ERM moment.

The second is that modern politics is extraordinary volatile.  Consider the rise and fall of UKIP, the overthrow of David Cameron, Jeremy Corbyn’s 2017 election performance.  So a new Conservative leader could turn events round, though he or she might well have to come from outside the Prime Minister’s Government altogether, and force an election sooner rather than later.

The first could be right.  But the Conservative Party cannot presume so – and simply hand the future over to Corbyn and Nigel Farage.  It has to work on the basis that the second might hold.  It follows that the longer May remains Prime Minister, the deeper the damage to the Party and the country.

The 1922 Committee’s executive has a big decision to make this week.  On Thursday, it will meet May to seek to extract a date for her depature.  It should not be sentimental.  Her hanging on might be attributed to a sense of duty.  But to borrow the language that Robert Halfon used on this site last week, it is utterly selfish.  Prime Ministers want to leave a legacy behind them.  May clearly sees hers as the Withdrawal Agreement.  But the Commons will not pass it as it stands.

It might do so, with or without Corbyn’s formal cooperation, were MPs to take Customs Union membership on to it.  But such a decision would force yet more resignations, were May to support it, and split the Conservative Party in half.  However unpalatable it may be, the Committee must, if she refuses this week to go by the end of the summer, change the leadership challenge rules immediately – perhaps with a trigger ballot threshold of 40 per cent or so.  We are well aware that the most painless course for them is to opt for mañana.  But the wait for tomorrow risks marginalisation – even oblivion.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Bim Afolami: Why I am joining the Commission seeking Alternative Arrangements for the Irish border

Bim Afolami is MP for Hitchin and Harpenden.

I voted Remain. I represent a fairly strong Remain seat in Hertfordshire. I voted for the Prime Minister’s deal three times, and implored my colleagues to do the same. I don’t believe that the backstop is as bad a problem as many have pointed out.

So why am I joining the Alternative Arrangements Commission, to try and work through the problem of how to ensure that – whatever the Brexit outcome – there is no physical infrastructure at the Irish border? Three words: responsibility, responsibility, responsibility. As a person privileged enough to be a Member of Parliament, I have a responsibility to do everything I can to fix the chaos, and find a practical solution to our problems.

Any MP with a pulse knows that the public is more than fed up with the collective indecision and incompetence that Parliament has shown over Brexit. However, in the midst of chaos and calamity, the paths out of this mess are easily discernible. Parliament has made it clear that it will not countenance a No Deal outcome because it regards it to be a damaging outcome that would weaken Britain’s negotiating position with the EU rather than strengthening it. Lest I provoke any howls of rage here by saying this, I state it as a piece of objective political reality. Face facts. Parliament has shown that it will do practically anything to stop that outcome.

This means that there remain only two ways of resolving the impasse, unless we want to repeat the humiliating spectacle of the Prime Minister visiting Brussels, like a modern day Pope Gregory on his knees at Canossa, begging for another long extension. The first is a second referendum. I do not want to rehearse the arguments for or against such a course, as they are well known. Personally, although such a course would resolve the impasse temporarily, I believe it would be injurious to the body politic as a whole.

The second way to resolve the impasse is to get the Withdrawal Agreement passed. How can the agreement be passed, seeing as it was rejected a third time by 58 votes (with 34 Conservative MPs voting against)? The EU will not reopen the Withdrawal Agreement. Would you? From their perspective, they have agreed a treaty with a sovereign government, and re-opening it to amend or change the backstop would allow the 27 other EU countries to lobby to change different sections of the agreement (such as fishing or Gibraltar) that they are not wholly comfortable with. This is the only way out of the EU, warts and all.

The key to passing the Withdrawal Agreement lies in trying to ensure that the Alternative Arrangements – in other words, working technical and administrative solutions – are shown to be practically achievable to such a robust degree that the EU accepts them. If the EU accepts these Alternative Arrangements, then the backstop will become defunct as it will never come into force. This is what the Commission, chaired by the highly capable and effective Greg Hands and Nicky Morgan, is trying to achieve. Remember, the only positive motion that has passed the House of Commons on Brexit is the Brady amendment – which called for “the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border”.

The Commission will include representatives from across the political spectrum. It has engaged a technical panel comprising border and customs experts, practitioners and lawyers with detailed knowledge of Ireland as well as the EU, UK and international trade regulations in order to create draft processes and procedures to fulfil these goals. In addition, the Commission will engage with established technology providers in order to develop a comprehensive set of solutions and timelines for review.

Members of the technical panel include: Lars Karlsson, former Director for Capacity Building of the World Customs Organization (WCO) and international customs expert; Hans Maessen, international customs expert; Shanker Singham, international trade expert; and representatives from the UK Association for International Trade (ACITA), CLECAT, the association of European customs brokers and many corporates that are users of Customs and need borders to work properly.

For any readers who are sceptical about the chances of the EU accepting these Alternative Arrangements, I understand. I was sceptical, too. But I have come to this conclusion: Over the medium/long term, if we want to have an independent trade policy (which we should) at the same time as maintaining an invisible border in Ireland (as we must), the only way to do so is to agree a set of Alternative Arrangements with the EU. We have to engage with them, and the Irish government, properly. They are going to remain our trading partners. We have to show them, in concrete terms, how an invisible border can be maintained without need for the backstop.

Such a course does not prejudge our eventual trading relationship. Over the next couple of years we will still continue to have fascinating arguments about the merits and demerits of a Canada-style relationship versus a Norway model, and everything in between. But if we want the option of an independent trading policy, which must surely be the aim for the fifth biggest economy in the world with a place on the UN Security Council, we are going to have to finalise alternative arrangements with the EU.

On the domestic politics of this, the DUP and the 28 members of the ERG who still refuse to back the deal have the backstop as their biggest concern about the Withdrawal Agreement. Coming to a developed and robust sense of how Alternative Arrangements will work, and to have them accepted as a potential way through by the UK Government and the European Commission will help them come behind the agreement and allow the Withdrawal Bill to pass through the Commons. The Alternative Arrangements Commission might just be a key part in helping the Government and Parliament come to a solution. If there is a chance we can find a path through this, we have to try.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Our survey. Party member opinion swings back against May’s deal.

Westlake Legal Group Screen-Shot-2019-05-05-at-08.46.54 Our survey. Party member opinion swings back against May’s deal. ToryDiary Theresa May MP Labour Jeremy Corbyn MP Highlights Europe EU Customs Union Customs Conservatives ConservativeHome Members' Panel Brexit   On the four last occasions when we asked our panel about May’s deal, the proportion of respondents willing to see Conservative MPs vote for it was as follows: 19 per cent, 40 per cent and 60 per cent.  As it became clearer that the most likely alternative to the deal was a softer Brexit, the proportion of panel members prepared to recommend it, however reluctantly, rose (as at the same time the number of ERG and other Tory MPs willing to oppose it in the lobbies fell).

This month sees a turnaround in the trend.

A majority of respondents are once again opposed to Conservative MPs voting it through – just over half.  Some two in five still support it.  Our explanation of the change is that the local elections rebuff, Theresa May’s talks with Jeremy Corbyn and the postponement of Brexit itself have swung some panel members back round.  Furthermore, most senior Ministers are unwilling to champion the deal – and Downing Street itself seems too exhausted to give it another publicity push.

This background of declining support bodes badly for any concessions to Corbyn on the Customs Union.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com