Tuesday, June 18, 2024
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Only with No Deal can we escape the EU Rules Factory


THE European Commission smells blood. It spies a set of counterpart Brexit negotiators who are still burdened with the critical mistake they made on Day One. Rather than run a de-accession process, building up from the foundations on what might make trade flow smoothly, Whitehall instead took on Brexit as a surprise damage limitation exercise leaving it constantly trying to repaper a condemned house.

Even this hapless task has been hindered by MPs, most from the Opposition benches but with key figures from within Government, doing their level best to remove the key negotiating levers the UK holds – from military association and security cooperation, through withholding the cash and demanding proper share of assets, to a tough line on fisheries access, all based on international law and best bilateral practice. Worst, their manoeuvres to make the negotiating default of a Managed No Deal evaporate have removed the core incentive for the European Commission, via pressure from the European Council, to deliver on any of the UK’s Brexit objectives.

It would be harder to engineer a more useful fifth column for the Berlaymont if you had actually wanted one and tried.

Ignore the so-called red lines; there is one huge blue one. You can forget all this nonsense about how the Commission can’t insert either an end date or an exit clause into the Irish Backstop, supposedly because of the integrity of the Single Market, the sustenance of the legal order, or some ethical move in support of a small member state. This pretence falls somewhere between blarney and a breach of the EU’s own rules on honest telemarketing. Brussels has an outstanding record in bending the rules whenever it suits, including for extended periods of a decade and a half – so long as it’s about a political fix, and until people start to complain significantly, which is long enough to cover for an alternative development to the Northern Ireland clauses. The simple reason why Barnier can’t be bothered to do so on this occasion is that he doesn’t think he has to, and nobody from the key capitals is yet phoning up in a flap urging him to. Yet.

Meanwhile, for all the banter to the contrary, it does indeed suit the EU to lock the UK in the half way house of the Withdrawal Agreement avec Backstop.

Under the WA, the EU maintains a veto over departure; by including a limited semi-exit clause, it furthermore cheekily excludes the more generous default options of the Vienna Convention from applying instead. It also, however, in Article 18 of the Backstop includes an important Partial Suspension Clause, whereby any material gain that the UK or Northern Ireland does get from the new arrangement can be ended by the Commission. All the while, the obligations arising from the new default Customs Union and Regulatory Union, but generated without either the customary right of input provided for EU member states nor the right of sectoral withdrawal provided for an EEA member state, will be anticipated to be the spur that will encourage the UK to ‘right its historic mistake’ and ultimately rejoin the EU under a different government. We can all nominate certain self-important types on the green benches whom we suspect that even now see as their destiny as a future PM.

Brexit does deliver opportunities, but only if we deliver Brexit. Consider past analyses not of the purported costs of Brexit, but of the costs of EU membership itself. This is particularly relevant when applied to a state such as the UK, which compared with the EU27 has a very low share of GDP dependent on the EU market, but a high share of costs arising from regulatory standardisation and social costs imposed for no gain on the rest of the economy.

When writing a study of red tape reform opportunities after leaving the EU, one key document that I had been able to get hold of was an internal DEFRA study reflecting on business burdens. This distinguished between red tape costs that could be fixed by the department, and others that were ‘out of scope’ and therefore unfixable because the source was the EU. Some 83 per cent of the £501million annual red tape costs relating to agricultural management were considered untouchable while we were EU members; the figure was 100 per cent of £691million air quality rules that were considered unnecessary; 100 per cent of £440million of red tape on sustainable products; 92 per cent of £2,056million (ie £2billion) on water regulations, and so on – and the table just covered what was ‘out of scope’ within one department.

A huge failure has correspondingly been the lack of strategic thought given by business lobbies such as the IoD and CBI to trawl back through all the work they have done over the last twenty years and more. There is a mass of documentation they will have on their files from years of trying to mitigate the damage being done to the UK both by unnecessary rules being foisted upon the UK by the EU, but also by UK civil servants overregulating in turn to avoid any slight prospect of being taken to court and sued by the Commission for failing to implement the rules in full. The big mistake by big business lobbies has been to forget they claim to represent more than just a handful of those who find a customs union convenient for themselves, and to neglect these past losses that they can now finally fix to make themselves more competitive.

But getting stranded now in a Niflheim Brexit means being stuck with this rules factory. Even under an open-minded and reforming Commissioner such as Frans Timmermans, the EC’s impact assessments and cost-benefit work when reviewing its proposals has been a complete joke. The Regulatory Fitness and Performance Programme (REFIT) has at least moved on from claiming better law making statistics simply by having removed references to the German Democratic Republic in its paperwork, but not by much.

The Commission remains the entity we voted to ditch. It cannot be trusted with producing the laws for this country, which is why we need Brexit. It cannot now be trusted as an honest broker in delivering Brexit. It refuses even the premise of discussing the insertion of a subclause saying that ‘the Backstop will end in 20XX’.

In those circumstances, the further the UK is from the EU institutionally, the better. Bring on No Deal. And to MPs who waver over that prospect still, I say this; even if you want to get a Deal without the Backstop, playing poker while wearing a side arm is the only way you’ll ever get that choice.

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Lee Rotherham
Lee Rotherham
Dr Lee Rotherham is Director of think tank, The Red Cell , Executive Director of Veterans for Britain and Chairman of the appeal to establish a Museum of Sovereignty. He was Director of Special Projects at Vote Leave.

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