My concern in all these posts, in all the meetings I am convening (the next event this Friday) is that we rapidly develop a realistic and progressive negotiation position for Brexit. The Minister for Brexit, David Davis, seems be living in a Panglossian fantasy.
Shortly before being appointed Minister for Brexit, David Davis set out his aspirations for the shape of the Brexit deal. He says that Brexit will allow us to “pursue an unfettered high growth strategy”. We will “shift our economy towards a more export-led growth strategy, based on higher productivity employment”. His vision is one of a “dynamic economy, trading throughout the world”. In interview today he said “we’ll get a very, very large trade area, much bigger than the European Union, probably ten times the size of the EU”. Leaving aside the need to expand to other planets in order to form a trade area ten times the size of the EU, there seems to be no recognition at all of the scale of the systems and infrastructure which will be necessary to facilitate and operate these agreements. His optimism is, he says, based on “amicable statements” from China, India, Australia and America and he expects trade deals with our most significant trade partners to be negotiated and completed within 12 to 24 months. This “amicable statement” from America seems to him to overwrite the publicly stated position of President Obama both before the referendum and after that Britain would go to “the back of the queue” in seeking a trade deal.
Mr Davis’ optimism seems to run against all the evidence as to the complexity and timescales necessary for effective trade deals. To take one example, how will disputes arising under these new trade deals be adjudicated? Will there be a new Commonwealth Court of Justice to arbitrate disputes over the agreements? Will we seek to build a wider trading bloc a bit like the early form of the EEC or will there be dozens of bilateral trade deals reliant on WTO rules? Davis doesn’t say, but that is not out of a desire to keep out of the detail, because on some points, he has thought through to the details: he promises “an 0800 number that a small specialist manufacturer in the North of England, say, could call for practical help in Shanghai and Sao Paolo, Cape Town and Calcutta”. This is the revival of the Cones Hotline school of infrastructure management.
His bluster around negotiations with the EU for Brexit is also alarming. He says “The ideal outcome, (and in my view the most likely, after a lot of wrangling) is continued tariff-free access. Once the European nations realise that we are not going to budge on control of our borders, they will want to talk, in their own interest.” He seems to think that we will be able to devise a system for free trade without free movement in just 24 months and that the EU Heads of State will just agree to his proposals. There is no acknowledgement that reaching agreement on an exit deal will require the support of a large majority of the member states. He simply asserts they will fall into line. He seems to think that the threat in the alternative of a relationship based on WTO rules allowing the UK to impose 10% tariffs on foreign cars will be enough to make all the EU leaders see the sense of his ideas.
Terms like “continued tariff free access” might appear to suggest a clear plan, but in practice leaving the EU will be untying a Gordian knot. We can’t just start from scratch asserting that all the vast network of European law will cease to apply on 1 January 2019. Even if we suppose Davis has (contrary to what he contends), some idea of a transitional preservation of the status quo in mind, he does not begin to address the questions this raises. Who will adjudicate disputes- will the European Court of Justice or the EFTA Court used by Norway et al? Presumably not if we are to “take back control”, but we will need some sort of international court to adjudicate on disputes about this “tariff free access”. Will we establish a new court? That alone would take years. The bluster unravels however generously one tries to interrogate the detail.
Some of the naivety in his positions are exposed by his failure to understand even basic geographical facts about the country on whose behalf he is negotiating. In interview today Mr Davis expressed concern that “One of our really challenging issues to deal with will be the internal border we have with Southern Ireland and we’re not going to go about creating other internal borders inside the United Kingdom.” Does he believe there is a dominion called “Southern Ireland”. If he meant the sovereign nation called Ireland, why does he refer to an “internal border” and “southern”? These blunders and the messianic megalomania of his declaration we will have free trade with an area “ten times the size of the EU” are amusing, but they also demonstrate how ill-prepared for the scale of the task ahead Mr Davis and the team of 40 in his department really are.
Along with millions of others, I (as a lawyer) engage with the minutiae of the structures of EU rules. When one engages, as our civil servants will have to, with the technocratic and frankly quite mundane reality of re-ordering our legal relationships with the EU, Davis’s brand of fantasy talk is of little assistance. Take one small example with which I work, the Habitats Directive. This is concerned with the maintenance of bio-diversity. It seeks to achieve this by creating a coherent ecological network of special areas of protection across the continent. Each member state has designated sites for special protection and each state has developed detailed provisions within their domestic systems for protecting those sites and for the protection of endangered species. The system is sophisticated and detailed and its success depends on its internationalism and cooperation. Implementing this supra-national system regulated by established legal frameworks into domestic systems takes years. Working out how to replace that with a sovereign equivalent would itself take years and years of domestic consultation and parliamentary scrutiny. Yet these provisions are just one fraction of EU environmental law, the environment itself appearing to be a peripheral issue that does not merit a mention in David Davis’ vision.
I am not a “remainer” out to frustrate the process. My concern since the referendum has been to encourage people to engage with designing a form of Brexit which does not sacrifice the interests of ordinary people while our leaders are consumed in an orgy of laissez faire trade deals. But today, my fears have expanded. I truly doubt the basic competence of the Minister to deal with any of this- even the orgy of free trade. He is clearly not on top of the vast majority of what is at stake. I do not think Davis is up to the task- he has not been chosen for intellect and grasp- but that is not down to him individually, I worry even whether we as a country can manage it all. Davis currently has a department of just 40 civil servants, set to rise to 200 shortly. No doubt the department will attract brilliant fast-track civil servants, but how can they possibly devise a wholly new and radically reformed system based on Davis’ sketched blueprint? They are being tasked with writing a new system of a complexity close to that which has been built over (at least) 20 years by the combined forces of over 500 million people.
In my next post I will suggest two alternatives to the radical shake-up proposed by Mr Davis which might bring the task back within the scope of human capability. These first is adopting the EEA model, somewhat akin to Norway. The second is adopting what I will call “the Sovereignty model” in which the status quo is maintained and nothing changes immediately other than that which is necessarily incidental to leaving the EU and some provisions empowering our Parliament to consider and if desirable pass legislation diverging from EU law piece by piece.