Non-EU trade agreements – one last go for now

I want to set out, in one place, what I see as the case that the UK can negotiate and ratify trade agreements with non-EU countries that would come into force only after the UK has left the EU, once the UK has (a) created a commitment to leave the EU (e.g. by triggering Article 50, though that is not necessarily the only way to do so); (b) committed to leaving the customs union. Then I’m going to move on for now.

The case that the UK cannot commence negotiations of, and certainly cannot ratify, new trade agreements with non-EU countries until after it leaves the EU is as follows.

  • The Treaties grant the Union, in TFEU Article 3.1(e), exclusive competence over its common commercial policy, including in particular its trade policy.
  • The Treaties set out the procedures, in TFEU Article 207 and 218, whereby the Union negotiates and ratifies trade agreements with non-EU members.
  • The Treaties set out for the Member States, in TEU Article 4, a duty of “sincere cooperation…in carrying out tasks which flow from the Treaties” and a duty to “refrain from any measure which could jeopardise the attainment of the Union’s objectives”. In particular, ECJ judgements have shown that these duties prevent Member States from independently negotiating with third countries over matters which, once they came into force, would fall under the exclusive or shared competences of the EU.

This argument appears to me to be entirely decisive in respect of the negotiation of any trade agreement that would come into force whilst the UK remained a member of the EU. It is, however, an argument with no merit or force in respect of the negotiating and ratifying of a trade agreement that would come into force only after the UK had left the EU.

Why? Well, first the UK’s post-Brexit trade policy is not, and cannot be, part of the “common commercial policy” of the EU. The UK is permitted to leave the EU and its commercial policy once it leaves (from that very moment) is in no way constrained by the Treaties. The Treaties include no commitment by the Members that their commercial policies, once they leave, will be constrained thus and so. The UK’s commercial policy could be constrained by whatever deals the EU and UK make as part of the Brexit negotiations or subsequently, but that would be a new obligation, not anything falling currently within the Treaties. Since the UK’s post-Brexit trade policy is not part of the common commercial policy of the EU, it cannot fall within the scope of Article 3.1(e) and is thus not a competence of the Union.

The EU and Member States’ roles in the negotiation of trade deals explicitly fall under Common Commercial Policy in Article 207, and then Article 218 refers explicitly to Article 207. The roles of the EU and Member States set out in these articles in the negotiation of trade policy flows from the EU’s competence over trade policy (and of common commercial policy in general). Thus since the EU is not competent over the UK’s post-Brexit trade policy, it cannot be competent over the negotiation of the UK’s post-Brexit trade policy.

Thus the first case is that the EU is not, as it happens, granted competence over the UK’s post-Brexit trade policy.

And that is well and good, because a second argument is that it is not possible, in principle, for the EU to negotiate and ratify trade deals that would bind the UK post-Brexit. The EU cannot negotiate trade deals for one Member State to the exclusion of others and it cannot negotiate a trade deal for the whole bloc that would bind the UK after it left that bloc. Since the EU does not, even in principle, have the power to make trade agreements for the UK, it cannot claim to have the competence over the making of such agreements – for it is a general principle that there cannot be a competence where there cannot be a power.

The third point is that some commentators suggest that the EU’s exclusive role in trade negotiations flows from the TEU Article 4 duty of “sincere cooperation”. But there is only a duty of sincere cooperation in respect of “carrying out tasks which flow from the Treaties”. More specifically, sincere cooperation applies only to matters which fall within the exclusive or shared competences of the EU. As Prof Marise Cremona puts it: “The Member States are bound by the obligation of sincere cooperation to “refrain from any measure which could jeopardise the attainment of the Union’s objectives” and this means that where EU competence is exclusive they should not engage in making even non-binding proposals, where such proposals may lead to legally binding measures which would affect EU rules. Indeed, even in cases where EU competence is not exclusive, Member States are bound not to depart from an agreed common positon in international negotiations, and once the Council has authorised the Commission to start negotiations with a third country the Member States are under a duty of close cooperation with the EU institutions “to ensure the coherence and consistency of the action and its international representation”.

Indeed. But the flip side of this is that where there is no exclusive or shared competence, there is no duty of sincere cooperation. Since the Union has no competence over the UK’s post-Brexit trade policy, because (a) it has not been granted such a competence; and (b) it could not, even in principle, have the power to negotiate post-Brexit trade deals and there cannot be a competence where there cannot be a power, there is no duty of sincere cooperation in respect of post-Brexit trade policy. The sincere cooperation argument simply never gets off the ground.

I want to emphasize one other thing. Sometimes in discussions there are points that are subtle and clever and that work, even though they run against one’s basic intuition as to how things ought to be. But my argument here is not of that nature. It is simply blatantly obvious that the EU ought not to have any ability to prevent the UK from negotiating and ratifying its own post-Brexit trade deals, provided they do not come into force until after we leave. I’m not arguing for anything that is not clearly and obviously how things must have been intended to be. So the points that I make are not “all very clever, but not very sensible” sorts of point. I am arguing that what blatantly ought to be the situation in fact is the situation: that the UK is not forbidden from negotiating and ratifying trade deals for the post-Brexit period where we will not be in the EU and the EU has no power to make any deals for us. My points and my answer should be no surprise. They should be exactly what any sensible person would have expected to have been the case before they analysed it.

My final remark on this is that it is so obviously ought to be the case that the UK can negotiate and ratify its own post-Brexit trade deals, provided they do not come into force until after we leave, that even if, for some obscure reason I have not considered above, it did turn out that the Treaty forbade the UK from doing that, the overwhelming pragmatic imperative should be for the UK to be exempted from that rule, either (preferably) by coming to a political agreement with the EU that it should be authorised to negotiate and ratify its own deals or (if really required) by changing its own laws so that it was permitted to do that. There should be absolutely no question of the UK accepting that when it leaves the EU its only trade deal must be with the EU and that it must then start from scratch negotiating with other countries from outside. I am under no illusions that the UK government does indeed appear to be accepting precisely that, and that whilst it continues to do so there is very little recourse one has in law to force the government to do so. All I can say is: It is not a violation of the Treaties for the UK to negotiate and ratify its own post-Brexit trade deals; if it were a violation, the overwhelming pragmatic imperative should be to exempt the UK from such provisions; and that it is blatantly absurd that the UK government should accept any restriction on its doing so.

There should be no question of accepting that the UK cannot negotiate new post-Brexit trade deals

Suppose a lawyer came to the Prime Minister and said the following. “It turns out that, under the EU Treaties, if we have a referendum on leaving we can go, but before we do so all those who voted to leave must shave their heads. That’s simply a legal requirement.”

If that happened do you think the PM would say: “Well, if that’s the law, that’s the law”? Obviously not. Instead the reaction would be something like this. “I don’t believe that can actually be the law and I want you to do your best to show that it isn’t. But if it does turn out to be the law we should be crystal clear that we won’t be doing that. It is a provision the only purpose of which is to harm those wanting to leave and as such is utterly unacceptable. If someone attempts to enforce this we shall pass our own legal measures disapplying this provision.”

What applies in my head-shaving illustration applies equally to the notion the UK is forbidden from negotiating new post-Brexit trade deals with non-EU countries. I don’t agree that it’s illegal but there should be no suggestion that we would comply even if it were. The only conceivable purpose of such a provision would be to harm us and we should consider that intolerable. If push came to shove we should be willing to announce a procedure along the following lines. Repeal the 1972 Act. Announce that we would continue to accept all judgements of the ECJ and abide by all the rules of the Treaty except the provision that we could not negotiate and ratify post-Brexit trade deals with non-EU countries.

Doubtless the exact procedure could be improved, but the essence of the plan should be clear. This would obviously be an extremely dangerous manoeuvre. Quite apart from the EU not accepting repeal of the 1972 Act, there is also the risk that once we go down this path others might think of further provisions they wanted to disapplying. It could be chaos.

So let’s not. Instead let’s announce that we don’t accept that this is the law, and if it is we are willing to disapply it, but we would prefer to come to an early political deal with the rest of the EU and the institutions that we won’t attempt to vote on post-Brexit EU measures (such as the EU army) and the Commission will issue an authorisation to us to negotiate new post-Brexit trade deals.

The EU could struggle to survive attempting to “punish” the UK for Brexit

During the Eurozone crisis, many commentators suggested that a country leaving the euro could trigger its collapse, by triggering a cascade of defaults that would bring down the Eurozone banking sector. Others of us argued that such “financial contagion” was a relatively low risk. Instead, we said, the key risk was of “political contagion”. If, say, Greece left the euro and then, eighteen months later, was growing at 4% a year with unemployment falling, then even if its economy had contracted 25% in between, there was a risk that Portuguese, Italian or Spanish voters would look on and say to themselves: “Why are we sticking in the euro and bearing the pain of austerity and high unemployment when leaving and devaluing provides a way to get unemployment down and growth to return?” To counter such political contagion, any departure from the euro would not only have to actually fail but to be seen to fail.

A number of EU leaders seem to be tempted to apply similar reasoning to Brexit. They seem to think that Britain must be punished and seen to lose from departing from the EU, pour encourager les autres. But the analogy between Grexit and Brexit is misplaced and the desire to be seen to “punish” the UK for Brexit is more likely to destroy the EU than to save it.

First, it is a misplaced analogy because neither the UK nor any other countries which have significant anti-EU sentiments have been suffering economically, in any very concrete any demonstrable way, by being EU members. There is nothing akin to austerity and a high exchange rate that is required as a temporary “this hurts but you’ll benefit in the long run” measure in order to stay in the EU. Other EU members don’t have some temporary pain they must bear for which leaving the EU provides an “easy way out” that might be tempting in the short run even if ultimately damaging over the longer term. There is thus no similarity between the situation of anti EU sentiment in the Netherlands or France or Finland or Hungary and anti-euro sentiment in Spain or Portugal or Italy. There is no “short-run expedient” that Brexit constitutes that other countries must be deterred from taking advantage of.

Indeed, more than that, the UK’s situation has long been understood as sui generis. David Cameron liked to boast of the UK’s “unique status” within the EU. Well, other EU Member States have noticed that as well. No-one in Hungary is going to imagine that the UK’s experience on leaving the EU is a good model for what might happen in Hungary.

Second, though, and more importantly, the idea that Britain must be “punished” to deter other Member States mis-diagnoses the origins of anti-EU sentiment outside the UK and does so in a manner that makes those other states more likely to depart, not less. Voters have increasingly been supporting Eurosceptic or outright anti-EU parties in many EU states because the EU is perceived as having failed economically and in terms of control of its borders, and to be more concerned with its political ideologies than with delivering on the economy or credible border control.

If the EU gets into a fight with the UK over Brexit that might damage the UK economy, but it will certainly damage the EU economy as well. The OECD, in its pre-referendum Brexit impact analysis, assumed that there would be no deal between the UK and the EU between 2018 and 2023. It has been widely discussed that this was forecast to result in the UK losing about 3% in GDP growth. What was less widely discussed was that the OECD estimated that that same struggle would result in the EU losing around 1% in GDP growth.

Suppose you are a car worker in Spain, and you lose your job, post-Brexit, because the EU gets into a row with the UK that means Spanish cars can no longer be exported here. You ask why and the answer you hear from the EU is: “Well, we could have done a deal with the UK that would have allowed you to keep your job, but we thought it was more important that the UK should suffer, even if it means we suffer here as well.” Is that going to make you knuckle under and vote for pro-EU parties? Obviously not. It’s going to make you think that the EU doesn’t care about the economy, but instead prefers some kind of abstract thing about “protecting the integrity of the EU Project”. And that will make you more likely to vote for populist anti-EU parties.

I think that is the main potential risk to the EU from Brexit. Not that Brexit goes well, but that the EU hurts its perceived political legitimacy, internally, by being seen not to care about economic delivery. And that is not all. Just as in the case of Grexit, as well as the political risk there is risk associated with economic linkages. The EU economy and EU financial sectors are still very fragile. If they were to be cut off from access to the City, by some ill-judged political row, that could lead to many corporate bankruptcies across the EU and even to the collapse of certain EU financial institutions. In combination this political and economic damage could, if the EU plays its hand badly enough, risk the collapse of the EU project altogether.

The EU is not a prison. It does not need guards to shoot those who try to escape. It is a partnership that its members have benefitted from enormously and that they should not need fear to keep them involved in. Have its political leaders really so lost faith in the intrinsic benefits EU membership confers that they now think all that keeps folk inside is the fear of the punishment they will receive if they leave?

Leaving the EU means controlling our own immigration policy, not having an illiberal and anti-foreigner one

Theresa May, Amber Rudd, Philip Hammond and Jeremy Hunt all campaigned to Remain in the EU. I campaigned to leave. Those four advocates of Remaining in the EU are now advocating various kinds of illiberal anti-migrant policies: asking firms to draw up lists of foreign workers; naming and shaming firms that hire too many foreigners; suggesting to foreign doctors they can leave Britain once we have trained up enough UK doctors; and holding over 3m EU citizens in the UK the threat that they will be deported if negotiations with the EU break down.

Now I know that the detail of all of these policies except the last is unlikely to be as bad as it sounds. The lists of foreign workers would probably only be percentages of foreign workers rather than named individuals and they would probably have been sought for equalities legislation purposes (ironically, to ensure firms weren’t discriminating against foreign workers). The “naming and shaming” probably wouldn’t actually be of firms hiring large numbers of foreign workers per se but, rather, those that had large numbers of illegal immigrants. We’re not really going to ask any foreign doctors to leave. And even in respect of the EU citizens, monstrous though it is that their right to remain and work has not yet been guaranteed, no-one serious actually believes they’re going to be ejected.

Nonetheless, the purpose of all this is clear. Ministers that campaigned to Remain in the EU are trying to signal to the public that they understand what folk wanted when they voted to leave the EU. And that’s appalling, and I shall argue against them.

The referendum was about whether we should leave the EU. Leaving the EU clearly involved making our own laws (leaving the jurisdiction of the ECJ) and controlling our own borders (an end to free movement). That was what people voted for and that’s what they must get. But these pro-Remain ministers feel they must go beyond what people voted for, to what they “want”. But what voters want has no place in our constitution. Indeed, quite the reverse – since the time of Elizabeth there has been the principle that the government ought not to seek a window into men’s souls.

What matters in our system is not what people want. What matters is who (in an election) or what (in a referendum) they vote for. What they want is of relevance for only three purposes. First, what they want may tell us something of who or what they might vote for next time. Second, what they want may indicate something of what they will tolerate without civil disobedience (refusing to obey laws or pay taxes), revolution or the Queen intervening to overthrow the government. Third, what they want may have some relevance for certain policies where the idea is to give people what they want (e.g. if we have a consultation exercise).

Beyond that, one of the great strengths of parliamentary democracy is that we don’t need to give people what they want, or indeed to care about that very much at all. Caring what people want is what dictators do, so that they don’t end up with their head on a spike.

The referendum result requires us to leave the EU. Leaving the EU means withdrawing from the jurisdiction of the ECJ and making our own immigration policy. It doesn’t tell us what laws we thereafter must make for ourselves.

It is no surprise – indeed, it is an inevitable consequence – that the UK’s having greater freedom to set its own laws means some people will argue for things I don’t like. For example, withdrawing from the jurisdiction of the ECJ means we will be free to introduce state aid subsidies for failing businesses. Brexit doesn’t mean I have to agree to state aid.

Similarly, it is no surprise – indeed, it was an inevitable result of the referendum result – that the UK’s greater freedom to set its own immigration policies means some folk will argue for things I don’t like. But Brexit doesn’t mean I have to agree to those policies.

When I say: “I don’t agree with May’s government’s approach to EU citizens or to immigration more generally. I believe May, Rudd, Hammond and Hunt are over-compensating for having supported Remain and I believe their policies provide illiberal signals that are in no way a necessary consequence of Brexit.” pro-Remain people get annoyed with me. They say: “Were you so naïve? Did you not realise this would happen?” Or they say “So you now agree with us that we shouldn’t leave the EU?”

Nonsense. I knew full well that leaving the EU would mean some people favouring less liberal immigration policies than I do, just as I knew it meant some people favouring less liberal economic policies than I do. But just because it means some folk arguing for that doesn’t mean I have to agree! And it certainly doesn’t mean I have to lose!

Many very foolish former Remain supporters keep saying and saying and saying and saying and saying, like some overpowering verbal tic, “But the EU referendum was all about immigration.” What they seem to mean by that is that May and her government have no choice but to enact illiberal immigration policies in response to the referendum result. I don’t accept that at all. The referendum ballot had nothing on it about threatening to deport 3m EU citizens or about naming and shaming firms for hiring foreigners. We’re under zero obligation to do that.

And furthermore, there’s little to no reason that should be able to get through, politically. The only reason I can grasp for its getting as far as it has is that Remain voices keep repeating, tediously, over and over and over again that “The referendum was all about immigration” instead of spending their time and energy arguing against illiberal immigration policies. And no – by that I don’t mean spending their time on futile attempts to retain free movement of persons. The options are not: a) Have no control of your own borders; or b) Threaten to deport 3m people and name-and-shame firms that hire foreigners. We can take control of our own immigration policy without using that control in illiberal ways.

I also want to observe that those that ask me “So do you regret having supported leaving the EU now?” appear to have an extraordinarily small conception of what the EU is. Leaving the EU is not about the UK’s immigration policies for the next three years. It’s about the future destiny of the country for the next 40 years. Even if we did end up with immigration policies I considered undesirable (assuming we don’t actually deport 3m people – if we really did that then I’d have to reconsider my views about Britain altogether) for 2 to 3 years, that’s unfortunate but it doesn’t change the overall equation.

Lastly, although I am not surprised to find pro-Remain ministers over-compensating on immigration in general, there is one point I am surprised about. I am aghast that the UK continues to refuse to guarantee that EU citizens that were here legally on June 23rd, having come on the understanding that they had indefinite rights to live and work here, will indeed have indefinite leave to remain and to work. I find it literally shaming that our country is adopting this stance, and I find it a grave disappointment that our media has not made this the big story every day until May backed down. What bigger story can there be than that the UK is threatening to deport 3m people who came to live here perfectly legally? How does that continue to be allowed to pass without being loudly and near-universally condemned every single day?

Three reasons the UK should not accept it cannot make new non-EU trade agreements after triggering Article 50

1) The EU has competence over the “common commercial policy” of its Member States. But the UK’s post-Brexit trade policy is not part of the common commercial policy of the EU. So the EU has no competence over that.

2) The EU cannot make new trade deals between the UK and non-EU countries for the post-Brexit period. It cannot make such deals for only one Member State to the exclusion of others and it cannot make a deal for the EU28 that would be binding for that non-EU country and the UK post-Brexit. It is a general principle that there cannot be a competence when there is not a power. Since EU does not have the power to make new trade deals for the UK, it cannot claim competence over the making of them.

3) The EU27 expect the UK not to block measures that the EU27 wish to introduce to apply in the post-Brexit period, such as the establishment of a new EU army. That is perfectly reasonable, and precisely the flip side of the EU27 not attempting to impede the UK’s making post-Brexit policies for itself.

Some new language and new distinctions for the Brexit debate

The current public debate on Brexit is hobbled by flawed language and largely irrelevant distinctions. Commentators ask whether most Cabinet ministers are swinging behind a “soft” or “hard” Brexit, even though a “soft Brexit” (staying in the Single Market and, apparently, also the Customs Union) is impossible and a “hard Brexit” (leaving the EU immediately, by repealing the 1972 Act and resiling from the EU Treaties, without seeking any new trade agreement with the EU) is favoured by almost precisely no-one. Debating whether we should pursue the impossible or the inconceivable is not productive.

Again, in respect of any new trade agreement with the EU folk ask if we should pursue a Norway-type, Canada-type, or Swiss-type deal. But the UK’s deal has no chance of being remotely similar to any of these. It’s like asking whether we want our military forces to be more like Caesar’s army, Cromwell’s army or Emperor Palpatine’s army. It’s just not a productive basis of analysis.

Third, talk of “access” to the Single Market is hopeless on both sides. One set of people use the term “access” as if the only way to sell anything to businesses and consumers in Single Market countries is to be a member. The other set say “everyone has access to the Single Market” as if being a member of the Single Market made no difference and as if everyone who isn’t a member of the Single Market has the same “access” (e.g. as if the US and Turkey have the same “access”). Talk of “access” made some sense during the referendum debate, when one was trying to convey the idea that we would still trade with the EU even after we left. Now we are definitely leaving, so we will definitely not be members and definitely will have access in some form, talk of “the need for access” is just empty – there’s no question of our not having access, so saying we need it is pointless.

What we do need is a new language and a new set of distinctions, so we can debate Brexit properly. Here are three.

Do we want a new geopolitical partnership, and if so with whom?

The first question for debate is this. We are leaving the EU, our main geopolitical partnership. When we leave, should we seek some new geopolitical partnership to replace the EU or do we prefer, instead, to rely on the rich web of diplomatic, commercial and social connections the UK built up over centuries even before it joined the EEC? Are NATO, the Commonwealth, the WTO, the Anglican Church, the European Convention on Human Rights, the European Patent Organisation and the rest enough?

Part b of this first question is the following. If we think we might want to pursue a new geopolitical partnership to replace the EU, is that a new geopolitical partnership in Europe – perhaps a new partnership with the EU or perhaps beyond the EU to other European countries or perhaps with other countries that will follow the UK out of the EU? Or is it a new geopolitical partnership outside the EU? Perhaps focusing on Europe made sense in the age of the Warsaw Pact – Western Alliance standoff, but for tomorrow’s world we need some new partnership with someone else entirely?

We really need to make some progress in debating this question before we can begin to work out what we want to do with the EU post-Brexit. Journalists should make sure they understand where politicians and other commentators stand on this question before they inquire about others, because where people stand on other questions is likely to be determined very significantly by where they stand on this.

If you want some terms to describe these three options, we can call them the “UK-only” option, the “New European Partnership” option and the “New non-European partnership” option.

Which sectors are the priority in trade negotiations, either with the EU or with non-EU countries?

In the Single Market, we face no tariffs on exports to our EU partners and there is a commitment, in principle, to strip away other non-tariff barriers to trade in all other sectors. Our political debate is thus used to the key distinction having been: trading within the EU means no (intended) barriers; trading outside means barriers. Maybe there is a bit of a distinction grasped between “goods” and “services”. But beyond that very broad brush, the sector the goods or services come from that are being traded is in general only of secondary interest.

But once we leave the EU, that blanket idea that all sectors are, in principle, to be regarded the same will lapse. Global trade and global trade deals involve very different kinds of arrangement in different sectors. When we leave the EU, neither the EU nor the rest of the world will treat our beef and our motor cars in remotely the same way. Neither should we assume that the same principles will apply to trade in financial services and in IT, let alone the same detail.

Before one starts to think about it, the natural assumption might be that the sectors that are the priority are those in which most people are employed in the UK, or that have the highest volumes traded. But it only takes a moment’s thought to see that that is not obvious at all. It might be that trade in the largest sectors is the least controversial or that it would face little to no barriers even without any negotiation. Then the priorities might be the sectors where negotiations would be hardest.

Another possibility is that certain sectors are very politically important in the UK, say because the firms involved tend to be located in depressed areas or because the firms are much the largest employers in the regions where they are based.

A third possibility is that certain existing trade deals or deals that are likely to come quickly already favour certain sectors, so the focus for new trade negotiations might be on other sectors so as to spread prosperity and to be politically fair.

Accordingly, debate should no longer be about whether we should “seek a deal” with the EU or non-EU countries but, rather, whether we should prioritise a deal over, say, cars or financial services or IT or agriculture? And are politicians willing to trade a better deal in some sector for a worse deal in another? Are they prepared to justify doing that to representatives of the worse-treated sector?

When immigration is controlled, will that restrict numbers only for particular types of immigrant or when there is particular pressure on the system, or is the intention to significantly restrict migration on a long-term basis?

Reflecting the nature of the EU, a key debate has been whether immigration should involve free movement or whether numbers should be materially restricted over time – as if the only options were open borders or low numbers. Well, since we are leaving the EU (and the Single Market), we will no longer have open borders with the EU (though we might yet have open borders with non-EU countries). The question then is not really “will we have open borders or cut numbers”. Instead, the question is over what “controlled borders” is intended to mean.

One kind of controlled border is a quota. We could say: Anyone from the EU (barring criminals etc) can come in, no questions asked, if you are among the first X applicants per year. Beyond that you have to fill in a form and show why it would be valuable to us to let you in according to some criteria we’ll call Y. The key question in such a system is “How do we set X and Y?” Is the idea of X that it is set high enough that, most of the time (say, most years) everyone who applies gets in and it’s only if there is some spike in applications that we start to worry about Y at all?  (This would be some variant of an “emergency brake” system.) Or is the idea that X is set so low (perhaps even at zero) that most (or even all) applicants have to prove their value?

When we come to Y, the key question is are the criteria fairly relaxed, so that it is only a few sorts of applicants we are trying to exclude (e.g. perhaps those with no job and not much prospect of getting one), or are they intended to be stricter so only a few applicants (e.g. perhaps some workers with particularly difficult-to-secure skills) are allowed in? Or something in between?

Details of implementation – e.g. is it a points system or are the criteria set in some other way – can be of some political interest, particularly if the system is seen to be cumbersome, unfair or ineffectively enforced. But before we get to those details, the first and key distinction is whether the overall intention of the system is that numbers should be generally restricted (so, in most years a non-trivial number of potential immigrants are turned away) or is it that numbers should only be restricted at peaks or sudden spikes?

The three sets of issues I have explored here are of course not the only important questions to debate about Brexit. But they do seem to me to be three areas in which our current political debate is confused and the common terms and distinctions drawn in the media are unhelpful. I hope I’ve aided in addressing that, just a little, here.

The Treaties do not grant the EU the power to forbid post-Brexit Britain from having trade agreements

Article 3.1(e) of the Treaty on the Functioning of the European Union grants the EU “exclusive competence” in relation to “common commercial policy”. Article 207(1) unpacks this:

The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action.

There is thus no doubt that the EU has the exclusive competence to conduct trade negotiations and enter into trade agreements regarding tariffs, regulations, intellectual property and so on. Member States cannot conduct their own bilateral negotiations or enter into their own agreements, except insofar as the EU itself can authorise Member States to enter into bilateral agreements (as, for example, in the case of the bilateral investment agreements covered by Regulation 1219/2012).

I have previously argued that this exclusive competence with respect to the trade agreements concerning trade between EU members (e.g. between the UK and Poland in 2014) cannot be understood as a claim to competence over trade agreements between non-EU members (e.g. between Australia and Israel in 2016, or between the UK and Australia in 2025).

Here, though, I want to emphasize a different point: The EU has no ability to form trade agreements that will apply to the UK and non-EU members post-Brexit. It therefore cannot have competence over that. A claim to “competence” where one has no ability is a claim to have a power to forbid. But the Treaty makes no mentioning of granting the EU any power to forbid the UK from having FTAs after it leaves the EU.

Suppose we’re at work and someone, let’s call him Bob, says: “It’s my job to check the electrics for the whole office – you’re not allowed to check your own sockets.” But then suppose my room is in a part of the office sealed off from the rest because I work on sensitive material that requires a security clearance Bob does not have and can never qualify for. Yet Bob still insists that it’s his job to check my sockets. That isn’t a claim, on Bob’s part, to have competence over checking my sockets in the security clearance area. It’s either a claim that access to my room isn’t allowed to require security clearance or that I’m forbidden from having my sockets checked.

The EU cannot enter into trade agreements with non-EU countries that the UK would be part of post-Brexit. It cannot make a deal that would apply only to the UK and exclude the rest, and any trade agreement it entered into for the whole EU28 would cease to apply to the UK once the UK left. Its position with respect to negotiating the UK’s post-Brexit trade agreements is like Bob’s inability to enter my office to check my sockets.

So, much like Bob, the EU cannot claim to have exclusive competency to do that which it has no power to do. All it can be claiming is either that the UK cannot leave (like Bob cannot be excluded from my room) or that the UK cannot have any negotiations conducted over its post-Brexit trade agreements (like I cannot have my sockets checked).

But the forbidding of trade negotiations being done and agreements being entered into is not an “exclusive competence” over them. To repeat: I cannot claim “competence” over that which I have no power to do myself. All I claim in that case is a power to forbid the thing from being done.

But do the EU Treaties grant the EU the power to forbid there from being any negotiations conducted or agreements made in respect of trade between former EU Member States and non-EU countries? Take a look. You will find no mention of such negotiations being forbidden.

The UK has not entered into a Treaty agreement with the EU that it should have no free trade agreements with any non-EU country after it leaves the EU. That simply isn’t a provision of any Treaty and neither is it an idea anyone in Britain would have accepted implicitly.

The EU can only claim competence over negotiations it itself has the power to conduct and agreements it has the power to conclude. It has no power to make trade agreements between the UK and non-EU countries post-Brexit. It therefore cannot claim exclusive competence over that question.

Post-script: If you think the answer to the above is that the EU has the power to grant, or not to grant, the UK power to conduct bilateral negotiations with non-EU countries that would only begin to apply post-Brexit, on the model of Regulation 1219/2012, since that is the way that trade deals for the UK’s immediate post-Brexit period could be done, the challenge then would be: “So when will the EU be doing that?”

Bad arguments and better arguments against CANZUK

I am an advocate of the concept of creating an EU-style union between Canada, Australia, New Zealand and the UK, starting with a joint trade agreement, mutual free movement of persons and a new defence treaty, then building, gradually, ever-closer union thereafter. I have no fixed idea how far that could go. Perhaps, because the countries concerned begin so similar, we would find that, even with a limited partnership we naturally aligned our regulations, geopolitical ambitions and laws without needing to establish joint regulatory agencies or political institutions. On the other hand, it is also possible that, one day, decades hence, we would all decide it was best to establish a joint Parliament, central bank, currency and some kind of confederal-level civil service. I don’t want to pre-judge at this stage.

When I suggest this kind of idea, though many people instantly find it attractive, there are also, of course, critics. But the thing is that most of the objections critics offer instantly are very weak. I want to explain here why, and also to sketch what seems to me to be the actual key difficulty.

Here are some of the bad arguments. One is: “The EU economy’s bigger. Why would we leave the EU to establish a smaller economic grouping.” That’s a very weak argument for two key reasons. The most fundamental is that the UK is leaving the EU. That boat has sailed. Arguing that we ought not to have left the EU in order to join a smaller economic grouping is just wishing the past were different. We’re leaving the EU. The question now is what we should be seeking to do next. The second reason it’s weak is that the EU is not fundamentally an economic arrangement. It’s a geopolitical one. And in the same way the main motivation for CANZUK is not economic. It’s geopolitical. We don’t choose our major geopolitical partners purely on the basis of what the biggest economic grouping is. Otherwise we’d be applying to join the US, or to join with China.

A second bad argument is: “Opposing free movement with EU partners but favouring it with CANZUK is racist.” That makes no sense at all. What’s the idea? You’re saying we’re only favouring free movement with Australia because those that come might be blond and blue-eyed, whilst we opposed free movement with Germany and Poland because those that came were blond and blue-eyed? There’s no interesting racial difference between Britons and those from the rest of the EU (insofar as “racial difference” or “race” are meaningful ideas at all). It’s certainly the case that there are more people with mutual family ties – many Australians and New Zealanders have UK ancestors at no more than great grandfather level and in Canada it’s only a couple of generations more. Family connectedness and hence similarity in outlook, history, values and so on is certainly part of the CANZUK attraction. And there should be no apologising for that. Valuing similarity in culture, values, political institutions and history is not “racist”.

A third bad argument can be roughly summarised as “Empire, Empire, ho, ho, ho!” We’re not suggesting any form of resurrection of the British Empire. I wouldn’t even locate CANZUK’s organising institutions (the equivalent of the European Commission) in the UK. I’d probably put them in New Zealand. It’s not remotely about the UK dominating anyone else. And most of the Empire countries, such as India, definitely wouldn’t be in anyway. If the suggestion were for a new arrangement with the US, why would that be any less “rebuild the Empire”? It’s just a silly argument.

A fourth daft objection many British critics offer is “But people in [insert CANZ member state here] don’t want it.” No-one wants it yet – it’s a new idea! We’d never do anything new if we insisted that, before anything new was done, everybody already had to be in favour of the thing they’d never even heard of or considered. The presumption of this criticism appears to be that ordinary British voters can be assumed to be in favour but ordinary New Zealanders, Australians or Canadians wouldn’t be. I know of no evidence that ordinary Britons favour CANZUK any more than those elsewhere. My experience is that the main agitators for the scheme and the main media and academic interest comes from Canada.

The best objection isn’t that above. Neither is it any of the “It’s not practical” or “It wouldn’t work” or “It wouldn’t be big enough to be of mutual interest” type arguments. The real problem is this: CANZUK would very probably work so well and be so large and powerful that it could potentially, within perhaps as little as a hundred years, constitute a global challenger to the US. The US would find the prospect of a geopolitical equal with a land border to the US difficult to stomach. It hasn’t faced that situation since at least the 1820s and arguably has never faced that situation in its history.

We can therefore assume that the US, anticipating the success that CANZUK could be, would vigorously object – if not publicly at least privately – and attempt to derail the scheme early. So to get the scheme off the ground, politicians in the CANZUK countries would need to be willing to face down US opposition – potentially publicly. I think there’s a very real question as to whether there would be the will to do that.

It might be that the only way to get there would be to so animate CANZUK voters with the romance and practical potential of the idea that they would force their politicians to overcome US opposition. But another possibility is that, if we build from a modest foundation in trade, free movement and defence cooperation, the US would find little it could initially object to. If and when later integration steps seemed attractive, the Rubicon might already have been cross and US objections might be too late.

That’s all a way off, yet, though. For now, we need to stick to getting the concept into the public and political consciousness and debate.

A question for Islam: Do you provide a credible route for the debauched to be saved without violence?

In this post I shall raise a question – one of very great general political significance. I shall not be answering it. There are few things I dislike more than non-Muslims pontificating on what “Islam really says” and on whether this or that doctrine (head-covering, say, or FGM) is really a “requirement of Islam” or only a “cultural practice”. (One of those few things is non-Christians purporting to tell me what “the Bible really says” about, say, homosexuality or women priests.)

Here’s the issue. It is frequently noted that a significant portion of those that claim to commit acts of terrorist violence in the name of Islam are what one might call “bad Muslims”. They had a had history of drink or drug problems. They had had multiple sexual partners and treated them badly. They had rarely attended mosque. They had had a string of convictions for petty theft or similar crimes.

The implication often drawn is that this suggests their claims to be inspired by Islamic belief and doctrine to commit their crimes is dubious. More probably, the thought goes, these are really social losers manipulated by others throughout their lives – whether by peer pressure into drugs, by gang friends into petty crime, or by IS recruiters into acts of violence. Or perhaps they are really people who are committing “suicide by cop” and terrorism creates a thin ideological gloss to their self-destructive despair.

I’m not wanting to downplay either of these interpretations. On the contrary, I’m sure there is a lot in them. But I wonder if they miss something. The presumption of this sort of story seems to be that, just because someone is a “bad Muslim”, that means he or she does not really believe in the truth of Islam. But need that be so? Mightn’t it, instead, in at least some cases, be that “bad Muslims” absolutely do believe in the doctrines of Islam, and in particular believe that the consequence of their being “bad Muslims” is going to Eternal Damnation?

If I’ve done some bad things, and think the consequence will be Hell unless I turn my life around, but I also know that I am basically an ill-disciplined loser and will not be able to behave well enough, over a sufficiently sustained period of time, to even out the balance of my past bad deeds in whatever life I have left, what do I do then? If I really believe eternal damnation beckons, mightn’t I be pretty desperate and possibly open to listening to the seductive tale of someone who says that I can cancel every wicked thing I’ve done out with one “heroic” (we might prefer the term “barbaric”) act? Couldn’t it be precisely because these people are both true believers and “bad Muslims” that they conclude that paths of violence are their only way forward?

I’m not saying that mainstream Islam has no answer to this. To repeat, I’m raising a question. But I wonder whether mainstream Islam has been successful in advertising whatever answer it has to this question sufficiently widely. My speculation is that many relatively poorly educated Muslims who (as with relatively poorly educated followers of other religions) have only a fairly sketchy grasp of the finer details of their faith would, indeed, believe the kind of thing I sketch above.

Something to think about, anyway…

Immigration needs to be controlled by the UK government post-Brexit, but not necessarily reduced

Consider the following two near-identical statements.

A. For many years in the run-up to the EU referendum, the EU was (rightly or wrongly) blamed for excessive regulation, creating costs and other burdens for UK businesses. The vast majority of those leaving the EU assumed that if we left, the UK government would regulate less than the EU has done in the past. Therefore, given the result of the Brexit vote, it is not enough that the UK government simply assume control and responsibility for regulation, defending the decisions it makes (whether for more or less regulation in the past) and being voted out of office if it fails to keep its promises. More than that: the UK government is politically and morally obliged to ensure that there is much less regulation in the future.

B. For many years in the run-up to the EU referendum, the EU was (rightly or wrongly) blamed for excessive immigration, creating costs and other burdens for UK public services and broader society. The vast majority of those leaving the EU assumed that if we left, the UK government would allow less immigration than the EU has done in the past. Therefore, given the result of the Brexit vote, it is not enough that the UK government simply assume control and responsibility for immigration, defending the decisions it makes (whether for more or less immigration in the past) and being voted out of office if it fails to keep its promises. More than that: the UK government is politically and morally obliged to ensure that there is much less immigration in the future.

For some reason, the British political debate at present assumes that B is true and A is false. Why? Is it disputed in some way that most British voters have (rightly or wrongly) come to believe that the EU is a source of excessive regulatory burdens? Is it in any doubt that most of those voting to leave the EU would have assumed that leaving the EU meant less regulation? So why does A not follow?

I think the reason is that UK politicians have not made extensive promises about reducing regulatory burdens concerning which, when they didn’t meet them, they blamed the EU for the failure. The reason folk think B is different is because UK politicians have made promises they couldn’t meet. That is, in my view, the key reason why immigration became an issue so entangled with the EU. Voters perceived failed promises on immigration as an everyday demonstration of what “lost sovereignty” meant in practice and a concrete illustration of how being in the EU meant voters could not hold their own politicians to account.

It by no means follows from this that Brexit means politicians will now need to keep promises they made, back in the pre-Brexit past when those promises were cheap and unenforceable. Indeed, it seems to me to be ridiculous to expect that. We might criticize Nick Clegg for promising no tuition fees rises when he had the luxury of assuming he’d never have to keep those promises. But it would be absurd to suggest that things didn’t need to be re-thought once he actually had to make a choice as to what to do.

One of the key merits of Brexit, with respect to immigration, will be that, because politicians will subsequently have the power to keep their immigration promises, those promises will have to change. Moving to a situation where politicians actually have to do it must, surely, mean reviewing promises made.

It would, for example, be ridiculous to design the UK’s post-Brexit global political and economic relations, which may affect the country (and indeed the world) for the next 40 years, on the basis that, whatever we do, we have to keep immigration below 100,000 because that was promised in the 2015 General Election when no-one thought it was a promise the government might actually have the power to keep.

Brexit changes everything. In particular, it should lead to a re-set of the government’s policies and promises with respect to immigration. The government having control of immigration and being accountable for that control probably will mean less net immigration, at least for a few years, than there was in the period 2010-2015. But cutting the numbers is not the point of taking control, any more than cutting regulation is the point of the UK government being in charge of that.