Published in Conservative Home, 09 October 2018

ConservativeHomeTB 9.10.18

Theresa May “has been badly advised and seems unaware” of “a complete error of a very serious kind”, as Number Ten tries to pretend we are not staying in the European Economic Area during her Brexit plan… “We are in the EEA now, we are going to be in it for the 21 months, and it would make a reasonable pathway for the further 15 months, and we’re out of it all before a June 2022 general election.”

Elsewhere in the interview Lord Owen comments:

“A staged Brexit should be built into the Withdrawal Agreement, which is a very substantial document already, and deals with almost all the immediate issues that we would otherwise face coming out without an agreement. ….part of that agreement has a 21-month pause…(in that period) we are technically assumed to be still members of the EU, although we are not, but we are given a very good standstill period which goes beyond EEA, it deals with banks and it deals with almost everything.

“So I think we should keep to the Withdrawal Agreement, we should negotiate everything we can within the framework of the Withdrawal Agreement, and we should try to, in the Withdrawal Agreement, timetable everything on the basis of achieving Canada plus plus plus.

“I do not accept – and nor should the UK Government – that Canada plus plus will take eight, ten years, six years, and I think it’s a farce to contemplate such a timescale.”

ConservativeHomeTB 9.10.18

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Full text of a letter from lord Owen to the Prime Minister Theresa May, 17 September 2018. Also available here: DOtoPM17.9.18

Lord Owen’s letter was triggered by a letter from the PM 6 September 2018 which is here: PMtoDO6.9.18

Dear Prime Minister

I have long been deeply puzzled why in our correspondence since 2 November 2106 you appeared to have closed your mind to the option of using our continued full membership of the EEA, including full participation in its governance, during the proposed 21 month implementation period starting at the end of March 2019. You know well from our correspondence that I have never suggested permanent membership of the EEA Agreement. All I have ever asked is that you do not ignore the EEA option and end up presenting to Parliament a false choice between your bespoke agreement and coming out without agreement under the WTO rules with all the serious temporary difficulties that that involves.

Having read your letter this weekend I now realise your firmly held position has been based on a deeply mistaken belief about the content of the EEA Agreement. In para 8 of your letter to me there is a very serious and alarming error. It reads:

“I should also add that the EEA would not provide a solution for the Irish border issue. It would deal with industrial goods but not checks on sanitary and phytosanitary standards for agrifood, nor with customs.”

The facts are that the very first Annex of the EEA Agreement is devoted to these issues of sanitary and phytosanitary standards [SPS] for agrifood. The Annex is for the most part a 269 page bibliography of the relevant legislative Acts concerning SPS matters which are contained in the EEA acquis. That is a lot of regulation. Yes, of course, you are right – SPS issues are central to the Irish Border Issues – they do require much more intensive checking efforts than customs and it is at the border at which agrifood movements account for a relatively high proportion of total movements. I would never have suggested to you using the EEA for the 21 month period and maybe a little more unless the EEA had covered SPS.

I cannot understand how you have come to be misled over this long period on this SPS issue. I am sure it was not deliberate but it may reflect a deeper problem you face in that you are not being advised by people of long experience of EU matters nor of negotiating with the EU. The lack of due diligence is quite extraordinary and may explain why Irish Border Issues have been allowed to appear more intractable than they are. I notice even last week the Taoiseach was talking about the EEA more positively than before. I have no doubt that during 21 months working together the UK as a non-EU member of the EEA and the Irish Government as a EU member we can come to satisfactory arrangements that will lead into the wording of a Canada-like EU/UK trade agreement.

Another reason for being a full member of the EEA during this period is that we would be operating under the EFTA Court not the ECJ and when we leave the EEA Agreement we could, I am sure, ‘dock alongside the EFTA Court’, wording which the EU has used when discussing the Swiss aversion to coming under the ECJ; an aversion which I believe is shared by the British people.

In your Future Relationship paper which you set out at Chequers in para 35, manufactured goods and agrifoods are put on the same level. A common-rule book is required for each (See your sentence “as for manufactured goods…”) in order to remove additional regulatory checks at the border. Annex 1, to which I have already referred and which deals with SPS issues, is, in effect, that common-rule book for agri-food, and is already written. It is readily available on the following link:
(http://www.efta.int/media/documents/legal-texts/eea/the-eea- agreement/Annexes%20to%20the%20Agreement/annex1.pdf). This can serve until such time as a new agreement can be reached. Hence there is no need for an Irish backstop for these regulatory measures – only customs needs to be sorted, which is much easier and is largely about a modest amount of money, not public health.

For all of these reasons I urge you to take one last opportunity preferably bringing in advisers who know about these issues in detail and would never have allowed you to be under such an important misapprehension about the EEA Agreement, and be ready to give Parliament a proper choice, not a false one based on fear. That has already been tried in the referendum and it failed. It will do so again. The people of this country do not like being bullied.

Yours sincerely
DAVID OWEN

Download a copy of Lord Owen’s letter here: DOtoPM17.9.18

Download the letter from the Prime Minister triggering his response here: PMtoDO6.9.18

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Further to revealing on 30 July his correspondence with the Prime Minister on the merits of the EEA, Lord Owen adds the following:

“In addition to the exchange of correspondence with the Prime Minister, I have now added correspondence with the then Secretary of State David Davis over what international or British legal opinion the Department commissioned over the EEAA.

“In my view the reluctance to give chapter and verse about any legal opinion and their right of non disclosure using the legal professional privilege under the FOI Act is an indication, along with other imprecise and often inaccurate statements, that no such legal opinion on the important issues surrounding our UK signature to the the EEA Agreement was ever sought. This should have been done in 2015 after David Cameron won the General Election, before his pledge to hold a referendum.

“The really important document, however, is the legal opinion (attached) signed by three senior and well regarded people with expertise in this whole area. This opinion does give chapter and verse as to why the UK could remain in the EEA Agreement for a transition period of around two years as a non-EU Contracting Party from 31 March 2019 when under Article 50 we will be leaving the EU.

“During this time we will be able to negotiate a trade agreement with the EU along the lines of the Canadian CETA which was only recently negotiated by the EU with a considerable input from the UK. The issues are therefore mostly known and can be dealt with quickly.

“This is a far better option than the Chequers agreement which has been substantively rejected already by the EU in important areas for the UK. It is also a better option than leaving without any agreement. No deal is a fallback when all else fails.

“This option of transitioning out of the EU through the EFTA pillar of the EEA is a serious one, as this legal opinion makes clear.

“ONLY if the EU blocks this credible route and we fail under an appeal to international treaty dispute procedures should we contemplate leaving without any agreement.”

View the correspondence with David Davis here: DDavisFOI

View the legal opinion on the EEA Agreement here: BfB EEALegal Briefing 21 August 2018

Read Lord Owen’s correspondence with the PM on EEA here: http://www.lorddavidowen.co.uk/lord-owen-reveals-correspondence-with-the-prime-minister-on-merits-of-the-eea-for-transition-period/

Lord Owen reveals correspondence with the Prime Minister on merits of the EEA for transition period.

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Lord Owen, writing in TheSunday Times, 05 August 2018.

Read the full article here: SundayTimes 5Aug18

“Why should we be forced to choose between a disguised sell-out and a fear-laden pullout from the European Union? Neither is in the national interest. Neither is likely to have the support of a sufficient number of MPs….

“Politicians on all sides of the argument should stop frightening people by pretending the only choices for leaving the EU next March are a bespoke option or a World Trade Organisation option.

“There is an alternative EEA option that can win the support of a majority of MPs. Namely to stay in the EEA single market as a non-EU country and in the Efta pillar for a limited period….

“Those who doubt that national sovereignty exists for the national parliaments of the three countries in the Efta pillar, and insist that they are in effect under the thumb of the European Commission, should study the recent clash between Norway and the EU over snow-crab fishing rights and recognise why the House of Commons would be sovereign…”

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Monday 30 July 2018

Lord Owen comments:

“I have been trying to persuade the Prime Minister since 23 November 2016 of the merits of preparing as a reserve if the EU destroy her bespoke option, for the UK staying in the EEA as a non-EU Contracting Party after we exit the EU on 31 March 2019 until at the earliest December 31st 2020 and at the latest 31 March 2021 and all this being specified in the Withdrawal Agreement.

“The case for clarifying the legal position over the EEA in the next few weeks is to make it clear internationally that the U.K. is not boxed in between only a bespoke deal and exiting under WTO rules: but that there is a third option open to the U.K. by right to continue EEAA membership. This would only be invoked in circumstances in which the bespoke Chequers agreement is not acceptable to the EU.

“The Prime Minister might be tempted to argue this can all wait until September/October and the EU/UK negotiations are complete. I believe that such a delay would be a grave mistake, for we may need some months to establish our UK right and will not have that time if we delay the process. It is hard to estimate how long the Vienna Convention procedures would take but it could possibly last 3-5 months starting September/October. Neither the U.K. nor the EU can wait this time.

“First, the U.K. is obliged under the Vienna Convention dispute procedures on international treaties to ask the 27 EU member states all individual signatories to the EEAA and the three non-EU individual signatories to agree to us exercising this right and approving the small number of wording changes necessary for inclusion in the Withdrawal Agreement. We should do this now.

“Second, were there to be any principled objections from the signatories to the minor changes to the EEAA we were requesting, the U.K. would then need to invoke international dispute resolution under the Vienna Convention which is an international legal process not a regional court like the ECJ and to do so quickly.”

Read Lord Owen’s correspondence with the Prime Minister: CorrespondencePMonEEA

Read his interview with The Daily Telegraph here: We’ve got to sort out Brexit, and fast. This is very dangerous

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Royal Society of Medicine podcast: ‘The NHS at 70.’ Released 2018

Excerpts:

“I think it’s a very bad time to be holding a celebration for an organisation that is under severe attack and very close to losing its whole founding principles and its ethical and vocational basis.

“…NHS England has to be more or less turfed out, the whole bang lot of them: the Chairman, Chief Executive and most of the Board members… They’ve stopped every form of criticism from within and without. They’ve made it very, very difficult for people to raise their voices from within and they’ve been able to disparage those from without… The thing is rotten at the moment and it’s rotten from the top. So you’ve got to change the top.”

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Lord Owen speaking at the Royal Over-Seas League Dinner, London, Tuesday 5 June 2018

Read the full text here:RoslSpeech05Jun18

Extracts:

“If there is any merit in the terms ‘hard’ or ‘soft’ Brexit we are fortunately heading for a soft Brexit involving a transition or implementation period during which we remain after leaving the EU on 31 March 2019 in the European Economic Area Agreement and Customs Union until the 31 December 2020….

“At that time we will hopefully have a free trade agreement along the lines of the EU-Canada trade agreement, CETA. It is ridiculous to say that this will take anything from 4-8 years to negotiate. The UK, with the other 27 countries, negotiated that EU-Canada agreement and we can live with its terms….

“… As for Northern Ireland the time has come for a little more blunt talk between the Prime Minister and the Irish Taoiseach.

“… The way Norway and Sweden have solved their border issue is the relevant one to consider…. The Norwegian Prime Minister has made it very clear that the crucial safeguard that the EU accepts is ‘spot checks’, not fixed borders…. Let’s hear a little more about moveable, surprise ‘spot checks’ in the next few weeks between Northern Ireland and the Republic of Ireland…

“… (soft Brexiteers) have been smoked out by the comprehensive nature of the transition. It is time for them to acknowledge reality and refocus their party political debate on the changes that need to be made inside the UK to make a success of Brexit.

“There are huge opportunities for the UK in a post Brexit world but there are challenges too.  Yet a House divided on itself cannot reach its full potential. There have been a number of perceptive articles and realistic voices raised recently for Britain’s internal debate to cease and for the country to come together now and face the future outside of the EU.”

Read the full text here:RoslSpeech05Jun18

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VIEWS ON CUSTOMS UNION ADDED TO WEBSITE ON 27 APRIL 2018

David Owen continues to speak out against those arguing for the UK to stay in the Customs Union:

A CUSTOMS UNION IS NOTHING MORE THAN A DEVICE TO BUCK THE REFERENDUM DECISION TO LEAVE THE EU

In all the controversy over why it is very important for the UK not to concede a Customs Union of general application, as distinct from a deal over Northern Ireland, I also recommend reading an article (24 April) in the Daily Telegraph, “Canada would never cede trade control” by Michael Taube, an aide to a former Canadian  Prime Minister Stephen Harper, about why Canada would never sign up for a Customs Union with the US.
https://www.telegraph.co.uk/politics/2018/04/23/borders-just-trade-canada-would-never-enter-customs-union/

Northern Ireland is a special case for the EU as is the Norwegian/Swedish border and the position of Switzerland bordering on many EU countries. Also the border between East and West Germany from 1956 to 1989.

It is beyond comprehension that the EU should show such insensitivity in their handling to date of the delicate border issue between the North and South of Ireland. It is as if the 27 countries are politically blind to all the extraordinary set of arrangements that have between our two countries since 1923. This is not an arrangement that can be left to Dublin to dictate their position to the European Commission and for that to then become holy writ in negotiations with the UK.

The political judgement of the Heads of all the Governments are needed and so far President Tusk speaks openly as the voice of only one country. This situation must not continue and in their heart of hearts European politicians know this. Soon we in the UK will have to take our case to the people of the EU’s member states and call on old friendships and understanding when many of them face deeply sensitive political issues. Different from but not dissimilar to those the British face over Northern Ireland. Article 8 governs just as much as Article 50 when it comes to good neighbours for the decades ahead.

Not even Norway, let alone its EFTA partner, Switzerland, have a Customs Union with the EU. The Turkish customs union means signing away access for third countries to the Turkish market and the EU is not ready to contemplate anything different for the UK. Now that the chief negotiator under the infamous Article 50 procedure  has flatly rejected any possibility of a special customs union deriding the Government’s proposed customs partnership, it behoves MPs to level with their constituents and admit the reality.

A CUSTOMS UNION IS NOTHING MORE THAN A DEVICE TO BUCK THE REFERENDUM DECISION TO LEAVE THE EU.

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