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Giant parrot by tower bridge

How does an obscure article in the Lisbon Treaty obfuscate Britain's efforts to formulate a post-Brexit relationship with the European Union? And what does this have to do with dead parrots? 

It was Margaret Thatcher who famously replayed Monty Python’s  ‘dead parrot’ sketch at the Tory party conference 28 years ago in 1990. This week, as the Conservative Party gathered in Birmingham for its annual get-together,  it would seem a dead parrot is once again at the centre of the debate.

It's well-known that  Mrs Thatcher  did not know who or what  Monty Python was  when she spoke their lines.   Today, Mrs May is struggling with what increasingly seems to be  a stiff, lifeless  parrot. She maintains that her Chequers proposal  is the only option.

The Chequers proposal sets out the government’s position for Britain’s future relationship with the European Union after Brexit  with regard to  future trade and security arrangements.**

The Chequers proposal splits out trade in goods from trade in services, and puts forward  the notion of "common rulebook" which is problematic. (See Brexit White Paper - a common rulebook for 21st century business? ).

Domestic politics have  conspired against Chequers. Many commentators, including the chair of the Treasury Select Committee, Nicky Morgan  have said that Chequers  is dead.   There’s no support for it from those who want Brexit, or those who don’t want it. That means the Parliamentary arithmetic will not work and there is no way it could get a majority.

The EU cannot support it because it would break the principle of the Single Market as  enshrined in the Treaties, and its negotiator, Michel Barnier,  is bound by the  Lisbon Treaty

 Article 207(3): The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.  

it would seem that the Chequers proposal  is being  nailed it to its perch by the government which is seeking to perpetuate it as a living organism. And so various political actors are trying to come up with alternatives.

The parrot in the Monty Python sketch was a Norwegian Blue. Some MPs are calling for the the Norway option to be revived.  This is where the UK would leave the European Union and become like Norway, a Member of the European Economic Area (EEA), giving it full access to the Single Market (See the full EEA Treaty in EU Official Journal Volume 37  L1 1994).   However, Norway  still has to pay in to the EU in return for that market access, it must abide by the four freedoms – goods, services, people and capital – and it has no say in EU law, although it must apply it. It also has a raft of bilateral treaties giving it access to various EU agencies.

Nick Boles, Conservative MP for Grantham and Stamford, has drafted a Brexit compromise based on EEA membership.  The UK, as a Member State,  is a signatory in its own  to the EEA Agreement (See page L1/533), however,  it is an open legal point as to whether or not the UK may remain an EEA member after Brexit. The most likely interpretation is that the UK could signal  its intention to remain in the EEA, whilst leaving the European Union, and if it does so before 30 March 2019, it could legally stay in the EEA. ( See David Allen Green's post here for a fuller legal analysis ). Stephen Kinnock, Labour MP for Aberavon, has also proposed an EEA compromise.

These positions are supported by Nicky Morgan, chair of the Treasury Select Committee, who pointed out the difficulties of achieving a bespoke deal with the EU, and by implication that the ready-made option of the EEA would be an acceptable compromise.

Whilst the Norway model  might have a been a practical option to explore in the summer of 2016, it could be tricky to get it through now.  If we assume the legal analysis is correct and we could just ask to retain the EEA membership in our own right, there will still be additional agreements to be drafted around how much we pay for market access, and bi-laterals put in place to address our membership of EU agencies such as the European Medicines Agency, or GNSS agency that runs the Galileo satellite programme. These agreements could be done, but they would take time – longer than the six months left until the March 29 deadline.  The loss of influence at the top table of arguably  the world’s most powerful regulatory bloc, is a serious consideration for the UK (see EU Withdrawal Agreement: a deep and special loss of influence ).

As things currently stand, the Parliamentary arithmetic for the Norway model in the UK is unclear. Nicky Morgan claims there is a majority for this model.   The Norway parrot will only fly if that view proves correct.  

 The other alternative is the so-called Canada  model. However,  beware that there are two Canada models. The first Canada model is the 454-page  Comprehensive Economic and Trade Agreement (CETA) signed between the EU and Canada ,  and which the UK, as a Member State, currently benefits from.  David Davis  said the EU offered it some time ago: this is what they meant. Here is Michel Barnier's slide presented to the European Council of Ministers on 15 December 2017.

CETA  took 7 years to negotiate. It includes chapters on some elements that the UK would want such as telecoms and e-commerce, but these provisions give us nothing like what we have inside the EU Single Market. It also includes provisions on  raw materials such as minerals and metals, which are of interest to Canada, but arguably less applicable to the UK’s service-driven market. It also provides an exception for culture, so cutting out audio-visual services, another important industry for the UK.

Hence, any agreement based on that  “Canada model” would need significant modification to give the UK what it has today. The EU is unlikely to  do this, because it cannot give us a vastly better deal than it has given to Canada and other countries such as Japan or Korea. Philip Hammond, Chancellor of the Exchequer, speaking on the BBC Radio 4 Today programme,  dismissed the idea of a Canada model.

Moreover, such an agreement would have to be negotiated in detail after the UK leaves the EU. Negotiations would begin after March next year. The risk is that there would be nothing in place for many years.

 The second “Canada model”, dubbed ‘super-Canada’  was  advocated by Boris Johnson in his Daily Telegraph article (also available on Facebook).

This ‘super-Canada’  is what in the software industry is known as vapourware. Mr Johnson’s article contains much emotive rhetoric, but where is  the substantial detail that one would expect in a serious policy proposal? For example, evidence, policy papers, working documents, consultations, working group reports and so on from the relevant government departments. These are all missing.  

The so-called ‘super’ deal is set out In just eight bullet points. It calls for zero tariffs and zero quotas on all imports and exports with the EU, and it calls for extensive provisions on services. The article omits to  say that we have that now, in the Single Market, and  that as a third country negotiating  a trade agreement with the EU, we will have to re-negotiate all those tariffs and quotas, sector by sector. Moreover, a quick check of  CETA reveals that its services provisions are thin compared with what we have in the Single Market.

The article  conflates the model of an actual free trade agreement that is CETA with a hypothesis of various theoretical positions and actions that that the UK ‘could’ take in future – a hypothesis that is US-centric. The proposal draws on a paper published by the free market think tank  Institute of Economic Affairs. The IEA paper seeks to align the UK with the US, and among other things, calls for moving away from the strictures of the GDPR   which implies a shredding of the EU principle of privacy protection.

The underlying issue with ‘super-Canada’ is that it seeks to do a deal where the UK could on the one hand agree to abide by the high standards of regulation  - implying that we would stay aligned with the EU–and at the same  time, the UK could choose to diverge. For example, it proposes Mutual Recognition agreements:

“In a spirit of trust and common sense we should agree that both UK and EU regulatory bodies are recognised as capable of ensuring conformity of goods with each other’s standards. And it should be easy to draw up  Mutual Recognition Agreements covering UK and EU regulations now and in the future – since we all want high standards, and we will all insist on proper protections for consumers.

 and at the same time it wants dispute settlement to address divergence:

“As with any free trade deal between sovereign powers there should be a process for recognising each other’s  rules as equivalent, where they are, and a dispute settlement mechanism for managing any regulatory  divergence over time. That process of regulatory divergence – one of the key attractions of Brexit should  take place as between legal equals, so that neither side’s institutions have power over the other’s.”

Herein lies an inherent contradiction. It is seeking an agreement of mutual recognition  based on trust, and at the same time it is saying that the UK plans to betray that trust and diverge towards a US-centric  framework. Just as with the Chequers proposal,  Article 207(3) of the Lisbon Treaty would preclude the EU from agreeing  to this. On that basis, the Canada model won’t fly either.

Hence, if Chequers is an ex-parrot, as it would seem to be, and  it’s a bit  late for Norway, and Canada has no wings, where does that leave the UK?

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**By way of explanation, there are two ‘deals’. The first ‘deal’ is the EU Withdrawal Agreement which establishes how Britain will leave the EU. It addresses primarily citizens rights, the Irish border, and the divorce bill. Alongside the Withdrawal Agreement, there will be a political statement about the future relationship between Britain and the EU. This is the second ‘deal’. The three ‘parrots’ discussed above relate to the future relationship.

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If you would like to discuss any of the  issues raised, please contact me via Contact Us page or Twitter @Iptegrity.

For new Iptegrity  readers, I have been analysing EU policy for over 10 years ( see 10 years of Internet wars ). I have worked on Council of Europe projects in the former Soviet states - countries  that now look to the EU for prosperity and growth and cannot understand what Britain is doing.   I also have many  years' experience of the telecoms and technology sectors.

If you liked this article, you may also like my book The Closing of the Net  available in Kindle and Paperback from only £15.99!  


 Photo of giant parrot by Tower bridge courtesy of Taylor Herring PR via Flickr and Tim Anderson – photo is copyright free - thank you!

 I acknowledge the  Parrot Sketch, Monty Python's Flying Circus Season 1 - Episode 08. Available via YouTube.

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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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