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28 September 2018

Paul N. Goldschmidt: Brexit: Failure of the negotiations is not an option!


Paul N. Goldschmidt takes a look at the proposals the EU is willing to consider for a future EU/UK trade deal and argues that a Free Trade Agreement on the Canadian model is the best possible option. Goldschmidt also makes the case for PM Theresa May to resign after achieving such an arrangement.

The proposals that the EU has indicated it is willing to consider include:
 
  • A “Norway” style agreement which would give the U.K. unfettered access to the Single Market. It implies Joining the European Economic Area (EEA), remaining within the Customs Union, a contribution to the EU budget, acceptance of all existing and future rules governing the Single Market (without any say in their drafting) and accepting the jurisdiction of the ECJ. Furthermore it would prohibit the UK from negotiating bilateral or multilateral trade agreements with third parties.
 
  • A Free Trade Agreement (FTA) on the Canadian model. This model offers both parties greater flexibility and permits accommodations which allow both sides to pretend that nothing essential has been conceded. However, the more this “ambitious” accord will improve on the Canadian ten plate, the more the parties will find themselves hamstrung in negotiating freely new deals with third parties.  
The objective of re-appropriation of sovereignty delegated to the EU as a result of its Membership does not appear compatible with the constraints of the first alternative, even if they meet the conditions laid down by Labor (reaffirmed at their recent Congress) to support such an agreement  if presented to Parliament by the Government. Indeed, it would leave the UK in a considerably weaker position than that of a full Member while failing to deliver on the promises regarding the control over immigration of EU nationals or the possibility of negotiating independent FTA’s supposed to offer unlimited opportunities for growth.
 
Negotiating an FTA with the EU offers greater scope for flexibility for both parties. Starting from the CETA model, it would seem easier to reach the objective of achieving maximum fluidity in the movements of goods and to reduce to a minimum administrative frictions concerning trade between Ireland and Ulster and with the rest of the continent.
 
A first element would be the reduction of tariffs to zero on goods and agricultural produce (as suggested in the “Chequers” proposal). This would facilitate the implementation of a digital infrastructure that would allow submitting remotely customs declarations, be it for regulatory (phytosanitary compliance, security norms, etc.) or statistical purposes. Physical controls would be largely based on exchange of preexisting information (as is currently the case for inspection of containers at major ports) as well as random spot checks which should not disrupt unduly the continuous flow of goods.
 
Including in the Treaty the freedom of delivering services does not impact the fluidity of movement of goods but on the other hand, must take into account, in particular for financial services, the need to preserve on either side their sovereignty with regard to the supervision and regulation of the institutions that are authorized to operate in each other’s territory.  It is difficult to envisage delegating the supervision of “systemic” institutions (large banks, insurers, clearers…) to third parties (BoE or ECB) without creating a potential conflict of interest situation in the event of a crisis. It is one of the reasons why to date, most existing FTA ignore or limit severely trade in services. It does however open up the possibility of giving content to the + over the standard Canadian model which could be at the heart of the negotiations to take place during the transition period.
 
One should also bear in mind that, even if signing an FTA preserves the freedom to negotiate separate deals with third parties, it severely limits their scope insofar as most treaties impose that any additional advantage conceded to a third party is automatically extended to their signatories. This clause would however permit both the defenders of British sovereignty to claim victory while at the same time, the EU would be protected from the UK signing agreements that would be incompatible with the treaty they signed aiming at preserving the integrity of the Single Market.
 
It would, therefore, appear that this second alternative offers a much more realistic path to achieve agreement and “save the face” of those who have so imprudently steered the UK on the path of Brexit. It is symptomatic that Brexit’ most ardent supporters (Rees-Mogg, Johnson…) have rallied around this option and that it remains for Mrs. May to choose the opportune timing for joining the bandwagon.
 
The result should be to conclude an agreement that will take effect on March 29th 2019 and will be considered a great (pyrrhic?) victory by all Brexeteers who will have apparently achieved their main goal. The terms of the exit agreement will include all the factual elements which shall be cast in stone and will include the amount owed by the UK to the EU, the immediate implementation of the transitional period which is probably the clause most beneficial to the U.K.: indeed during this period extending initially to December 20th 2020, nothing is supposed to change which allows time to test and implement new procedures required, to update international agreements covering aviation, nuclear materials, fisheries, driving permits, certifications etc. In addition, a political non-binding declaration will outline the aims of the FTA to be negotiated, specifying the ambition to reach a deal along the Canada + model which will be negotiated in parallel with the technical matters mentioned here above.
 
Conclusion
 
This solution, which is far from optimal when compared with a Union at 28 to which Great-Brittan has made valuable contributions during its 40 years of membership, avoids however a rupture that would endanger the cohesion of the 27 remaining Members and would leave deep wounds to the friendship and cooperation that both sides need, making very difficult reestablishing constructive neighborly relations.
 
Armed with such a deal which has the necessary ingredients to reestablish unity within the badly bruised conservative party, Mrs. May should resign, as her predecessor did after the referendum, but this time around it would be with the aura of an accomplished stateswomen; she would leave to her successor the task of negotiating the details of the future EU-UK relationship during the transition period. Following on, the next PM should offer the opposition the elections they are clamoring for and catch them wrong-footed; similarly he would have pulled the rug under the Lib-Dems. whose “remain” platform would become obsolete, providing the Tories with a real and wholly unexpected opportunity of reconquering an absolute majority in Parliament. [...]
 


© Paul Goldschmidt


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