Saturday, February 25, 2017

Friday, February 24, 2017

Brexit: on becoming a "third country"

I actually saw a website recently which suggested that the UK could adopt "third-country" status on leaving the EU. Although written in the context of financial services, it nevertheless betrays the mindset – one of staggering proportions – of those people who are completely failing to understand the implications of Brexit and Mrs May's retreat from the Single Market. 

A major part of the problem, I rather feel, is the inability to see the situation through the eyes of the EU. Thereby, people simply fail to understand that, when we leave the EU – and also the EEA – we automatically assume the status of "third country". It cannot be emphasised enough. The EU does not do this to us – we do it to ourselves. 

Our exporters then have to look at the EU through new eyes. No longer are they part of the vast Single Market, where goods shipped from the UK to mainland Europe did not come under customs control. Instead, like any other "third country", we come under the full panoply of customs controls. 

To get a taste of what that involved is easy. Simply go to the export website of another third country and follow the instructions – the United States is as good as any. 

Before they even start., putative exporters are advised to consult the TARIC (Tarif Intégré de la Communauté), website to help determine if a licence is needed. 

Not only are there EU restrictions, many EU member states maintain their own list of goods subject to import licensing. For example , we are told, Germany's "Import List" (Einfuhrliste) includes goods for which licenses are required, their code numbers, any applicable restrictions, and the agency that will issue the relevant license. 

Once that hurdle is overcome, the exporters must prepare their written declarations to customs, in the form of the Single Administrative Document (SAD), an eight-part document running to a minimum of twelve pages. 

The SAD describes goods and their movement around the world and, effectively the passport for the goods, needed to secure their entry into the EU customs territory. 

Even without going any further, there is a significant cost element here. Mistakes in completing the SAD can lead to expensive hold-ups at the posts, so many firms hire customs or shipping agents, paying anything up to £60 for each form submitted. 

In order to fill in the form, exporters will normally be required to enter their Economic Operator Registration and Identification (EORI) number. This has to be formally requested from the customs of the specific member state to which the company exports. 

Thus, for a UK exporter planning to ship their goods to or via France, they will have to go to the French website for the details and to make an application. 

Member state custom authorities may request additional documents to be submitted alongside a formal request, and it can take anything up to two or three days to be issued. Of course, currently, almost every UK exporter will already have an EORI number but, on Brexit day and thereafter, these will probably no longer be valid., as they can only be issued by EU Member States. 

There is a possibility that we could negotiate an agreement with the EU for continued recognition of the numbers issued by the UK Government but, in the event of talks breaking down, we would have to start from scratch. That could create significant problems as UK exporters would no longer exist on the EU's centralised customs database. 

Then there is a matter of the mutual recognition of Authorized Economic Operator (AEOs). We deal with this in Monongraph 11.

Since 1997, the US and the EU have had an agreement on customs cooperation and mutual assistance in customs matters. This is the country that doesn't have any trade agreements with the EU, of course – except that it does, with details of the customs agreement here.

In 2012 the United States and the EU signed a new Mutual Recognition Arrangement (MRA) aimed at matching procedures to associate one another’s customs identification numbers. The EU customs code introduced the Authorised Economic Operator (AEO) programme (known as the "security amendment"). 

This is similar to the United States' voluntary Customs-Trade Partnership Against Terrorism (C-TPAT) program in which participants receive certification as a "trusted" trader. AEO certification issued by a national customs authority and is recognized by all member state’s customs agencies. 

As of 17 April 2017 an AEO can consist of two different types of authorisation: "customs simplification" or "security and safety". The former allows for an AEO to benefit from simplification related to customs legislation, while the latter allows for facilitation through security and safety procedures. 

Shipping to a trader with AEO status could facilitate an exporter's trade as its benefits include expedited processing of shipments, reduced theft/losses, reduced data requirements, lower inspection costs, and enhanced loyalty and recognition. Under the revised Union Customs Code, in order for an operator to make use of certain customs simplifications, the authorisation of AEO becomes mandatory. 

The United States and the EU recognize each other's security certified operators and will take the respective membership status of certified trusted traders favourably into account to the extent possible. The favourable treatment provided by mutual recognition will result in lower costs, simplified procedures and greater predictability for transatlantic business activities. 

The newly signed arrangement officially recognises the compatibility of AEO and C-TPAT programs, thereby facilitating faster and more secure trade between US and EU operators. The agreement is being implemented in two phases. The first commenced in July 2012 with the US customs authorities placing shipments coming from EU AEO members into a lower risk category. 

The second phase took place in early 2013, with the EU re-classifying shipments coming from C-TPAT members into a lower risk category. The US customs identification numbers (MID) are therefore recognised by customs authorities in the EU, as per Implementing Regulation 58/2013. which amends EU Regulation 2454/93. 

If the UK is to have a similar facility, then there would need to be some detailed negotiations within the Article 50 framework, to ensure arrangements are in place by the time we leave. 

This notwithstanding, exporters will have to get used to preparing other form in addition to their SAD documents. They will also need Entry Summary Declarations (ENS), which have to be lodged at the customs office of first entry, once the items have been presented to customs officials. They have to be lodged by the people who bring the goods, or those who assume responsibility for the carriage of the goods into the customs territory. 

In return, they will receive the MRN – Movement Reference Number –a unique number automatically generated, upon validation, by the customs office that receives the ENS. The MRN must be issued immediately to the person lodging the ENS and, where different, also to the carrier. The MRN contains 18 alpha-numeric characters. I have no doubt that this is not a collector's item and actually has a use. 

US exporters are also warned that they will need to make special arrangements for selling batteries within the EU, for chemicals within the REACH system, the Waste Electrical and Electronic Equipment (WEEE) Directive, the Restriction on Hazardous Substances (RoHS) Directive, and the Cosmetics Directive. 

Then there are the provisions for Agricultural Documentation, including meat and meat products, about which we have written previously, but exporters are warned of the need to acquire the appropriate export certificates before the goods are shipped. 

The thing is, these rules are not exactly secret – you just need to know where to look for them, and have the incentive to do so. And those who would simply poke their heads in the sand would do well to heed the words of Robert Edminson, an ex Customs Officer who made a comment on the Booker column last weekend. 

Having dealt with imports and exports for many years he was "delighted" that Mr Booker had started explaining the actual detail of international trade, much of which is unknown to the general public, as it is highly technical and has been built up over the years. 

Then, on Pete's blog, we had Sicinius. He was an exporter whose experience extended, back beyond the Maastricht Treaty. If we complete Hard Brexit, he said, we will be back to the Dark Ages of detailed inspections, 82A carnets and days spent in Customs. We used, he said:
to allow three days to do all the documentation and get a vehicle out to the CE-BIT electronics show in Hannover having signed personal guarantees that every item, separately listed, (please list fittings that have detachable pieces in their exploded form) would be returned to the UK. On pain of forfeiting the personal guarantee. Post Masstricht, no documentation, no queues, no PG's and we sold the goods we took out there off the stand on the last day.
Should we have a Hard Brexit., he says he'd rather just move the company to Lille or Rotterdam than go back to that. "I can't imagine how Dover will work if we try and put the clock that far back", he added. "Tweak security up one level and this whole corner of South East Kent gums up. Reinstitute the border controls of 1992 now and this part of the world will stop functioning". 

Then, in a separate comment, Sicinius recorded:
In 1991, the last time I did the CE-BIT run pre-Maastricht, I was behind the Sony artic [truck] bound for the same destination. A Customs Officer, who looked about 14 years old, said to the driver "We only want to see these six items". The driver opened the back of his truck, revealing about 20,000 cardboard boxes, almost all of which were plain and unlabelled. "I'll have to unload the whole truck" he complained "Well you'd better get started" said the CO. He ended up calling Sony HQ who helicoptered a crew to Dover to help him.

On the same trip, at Ghyveloe, going into Belgium from France, there was only one officer on duty (carnets have to be stamped at every border you cross, of course, in and out) and the queue was five hours. Nothing by today's standards when even the smallest things go wrong.

If you go and stand on the ridge at Arpinge above Folkestone or East Langdon Cliffs at Dover, you can watch the whole system creaking desperately at the seams. After Hard Brexit, you'll be able to watch it sink.
Similar sentiments came from Derek Howard, who noted that the NI/Irish border had been affected by protesters the other day causing delays. The French-Belgian border was affected for a couple of days in November 2015, after terrorism in Paris, and led to 40km queues taking 4-5 hours to navigate even though the checks did not require actual stops, just traffic being taken off the motorways round a roundabout at walking pace and back on again. Operation Stack in Kent, he said,
…closes swathes of motorway whenever there is an incident on the ferries or tunnel. All Kent ports as well as the Cheriton access to the tunnel are at risk. I challenge any Brexit voter to sit on the lovely hills above Folkestone or Dover and watch the sheer volume of lorry traffic passing between the world's 5th and 6th largest economies to realise the foolishness of reverting to detailed inspections of every vehicle. The cost would be vast. Utter madness to contemplate or threaten.
These are not fantasies by swivel-eyed loonies, but sober appreciations based on what went before. Dover as a port works, but only just. The slightest perturbation brings delays and the introduction of "third country" customs controls to Calais will have a knock-on effect in Dover that will be impossible to manage. 

My guess is that, after a period of chaos, this could bring permanent change. The roll-on, roll-off traffic will be drastically cut and many of the goods will be containerised and diverted to inland ports such asDoncaster. They will then either be transported through the tunnel on freight trains, or by ship through a container port. 

Customs checks on unaccompanied loads, although still onerous, are less troublesome than on lorry-borne freight. You can stack containers if there are delays, while Operation Stack for trucks means massive queues.

Either way, this problem is not going to go away. Mrs May intends to take us out of the Single Market. Dover may look the same, outwardly, but that turns us into a "third country", with inevitable and unavoidable consequences.

Thursday, February 23, 2017

Brexit: completely over their heads

One of the more irritating mantras of the "hard" Brexiteers, defending their stupidity on the "WTO option", is their false claim that countries such as the United States, Australia and China all trade with the EU on WTO terms – on which basis, they aver, such an arrangement should be perfectly adequate for the UK.

This, though, is a mix of ignorance fortified by arrogance – ignorance of the fact that all of these countries have multiple agreements on trade with the EU, and arrogance of the people pushing their canard, in refusing to check their facts. 

We saw this in April of last year when the self-important Charles Moore decided to misinform his readers with the deluded claim that: "The EU has never yet, in its history, had a trade deal with America".

It's very much Moore's style to waft around the high and mighty, sharing gossip and prejudice, looking down his patrician nose at informed sources from the lower orders. Thus, although I had sent himFlexcit in June 2015, whence he wrote to me saying, "I look forward to studying this", he obviously never did. He preferred his own ignorance. 

A more cautious person, I wrote at the time, might have consulted the Europa website to check the veracity of the "no deals" claim. Because there, on the Treaties Office Database, are lists of trade agreements between the US and the EU, 38 in all, of which at least 20 are bilateral. 

Now, ten months after an unrepentant Moore ignored my attempts to correct him, we have Ivan Rogerstelling the Brexit committee something they should already have known – and is their duty to know, insofar as we pay them to keep themselves properly informed. 

Said Rogers to these ignoramuses, "although the EU and the US do not have a free trade agreements, they do have agreements covering trade". There are 20-plus agreements, he said, adding that no major economy traded with the EU solely on World Trade Organisation terms. The Guardian recorded him saying:
No other major player trades with the EU on pure WTO-only terms. It is not true that the Americans do, or the Australians or the Canadians or the Israelis or the Swiss. They strike preferential trade deals where they can. But they also strike more minor equivalence agreements, financial services equivalence agreements, veterinary equivalence agreements, mutual conformity of assessment agreements. The EU has mutual conformity of assessment agreements with the US, with Canada, with Israel, with Switzerland, with Australia, with New Zealand, and more I think.
The determination of the Brexit zombies to buy into the "WTO option", though, is all part of their justification for rejecting the Efta/EEA solution. They reason – if it can be called reason – that if other countries can survive and prosper under a WTO regime, then there is no need to go any further. But Rogers wasn't letting them off that hook either. He told the MPs:
If you had an abrupt cliff edge with real world consequences, you've seen what Mark Carney [governor of the Bank of England] has said about the financial stability risks to the eurozone of an abrupt cliff edge. There are other consequences in other sectors which would make it an insane thing to do.

All I was pointing out was that this is a very legalistic body that we are dealing with and they will say you have transformed yourselves overnight from having been a member of this body to a third country outside the body and in the absence of a new legal agreement everything falls away.

We all know that that's nuts in the real world, because why would you want to stop UK planes flying into European airports on day [one]. We know that this is insanity, but that doesn't mean - we know that stopping carcasses and consignments and saying "your slaughterhouses are no longer approved", we may know that that is a nonsense in the real world. Sadly, that does not stop it necessarily happening.
This is something I was writing four years ago, when I said:
As the law stands, the UK is part of the Single Market. Outwith the EU and the EEA, however, the UK becomes, as far as EU law is concerned, a "third country". And imports from third countries must to subject to a raft of inspections, documentation and physical checks at member state ports (including airports) before they are allowed entry.
That, we need to emphasise, was four years ago. More recently, we pointed out that this was not something the EU did to us, but a status the UK assumed by choosing to withdraw from the EU and the Single Market. 

You must imagine, I wrote, a medieval walled city, inside which the traders happily do business – with the public and between themselves – secure within the fortifications. When a trader (unhappy with the rules and regulations) decides to move his stall outside the walls, he cannot then complain that he is no longer able to trade freely with the people still inside. 

Yet such is the total lack of comprehension of the Daily Mail that it reports Ivan Rogers as saying: "the EU leaders would be 'insane' to push Britain out of the EU without a deal but they might do it anyway".

Rogers, of course, was referring to the "walk away" option, where even the intellectually challengedFinancial Times managed to understand that it was our own government that saw World Trade Organisation rules "as an obvious alternative to negotiating a free-trade agreement with the EU" – and was wrong to do so. 

But what we're getting is a taste of how the zombies are going to rationalise their own failure – blaming their inability to craft a workable settlement on the supposed intransigence of the EU negotiators. 

The Mail, though, was not alone in being out of its depth. John Crace of the Guardian observed that most of the stuff Ivan Rogers offered to MPs on the Brexit committee "went completely over their heads".

These are people who are four years behind the curve, and only because they've been lapped so many times do they look, briefly, as if they are in the lead. Thus, when John Whittingdale, a decent enough cove, tried to argue the point about regulatory convergence making a deal easier, Rogers shot him down in flames. 

If anything, convergence makes things harder. "It's not about what happens on Brexit Day plus one", Rogers said. "It's about what happens further down the line. Because if we were intending to leave everything exactly the same there would have been no point in leaving".

This is the point we've been making, where the EU will want assurances – and some evidence to back it up – that we intend to maintain convergence, and will ensure that there is a system of market surveillance and enforcement in place to ensure a high level compliance. Additionally, the EU will want a bankable promise that we intend in implement new regulation. 

That much detail, though, is down the line. Rogers had opened his commentary by telling MPs that the "Brussels beltway" view was that it could be the early- mid 2020s before we have a ratified deep and comprehensive free trade agreement. 

To me, it seems that what happens in between us leaving and the agreement coming into force is the million dollar question. Moreover, by its very nature, it seems impossible to determine a "bespoke" transitional agreement until we know what the end game is. 

However, Rogers was "on the stand" for nearly two-and-a-half hours and, while I've watched the TV session, I need to read the transcript before I can do full justice to the evidence. 

But what we can already gain from it, as an overall theme, is that we're all flying blind. Anyone who tries to predict how the talks will be structured, said Rogers, is being "foolish". It may be past summer before we even know what it is we will be arguing about. 

For the moment, I'll leave it with the Independent which has Rogers saying that the consequences of the UK securing no deal and relying on WTO rules would be "nuts" and like falling off the "cliff edge" into a "legal void".

It then cites Liberal Democrat MP Alistair Carmichael, who sits on the Brexit Committee, having him say: "It's clear no free trade deal with the EU could ever be better than remaining in the single market". But, as for no deal, well, that's just "nuts".

Wednesday, February 22, 2017

Brexit: maritime surveillance

To assert that the UK is a maritime nation is something of a cliché, but since our nation is an island and depends on seaborne goods for our survival, it can also be said to be true.

Amongst other things, that would imply that the UK needs a maritime policy, or a series of policies covering matters maritime which collectively add up to a maritime policy. Putting all those policies together, one might even call it an Integrated Maritime Policy (IMP), except for the fact that the EU has got there first. 

Its fingerprints on this issue can be seen as early as September 1991, which brought the first formal intervention of the Commission into the domain, with COM (91) 335 entitled "New Challenges for Maritime Industries".

In this document, the Commission defined the framework in which a coherent approach to the maritime industries should be implemented, those industries including shipping, shipbuilding, the service sector, marine equipment and the "resources .of the sea" industry, including fishing. 

The following year, 1992, saw a milestone in the development of EU policy, in Council Regulation (EEC) No 3577/92, applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage). 

As from 1 January 1993, freedom to provide maritime transport services within a Member State (maritime cabotage) applied to all Community shipowners who had their ships registered in, and flying the flag of a Member State. This was regarded as an important element in completing the Single Market, ensuring the freedom to provide services. 

Demonstrating continued activity, the Commission 1993 published COM 93/66 on proposals for a "Common Policy on Safe Seas". In an 81-page document, it set out an a "proposed action programme for enhancing safety in maritime transport".

The year 1995 then saw a major piece of legislation in the policy domain in the form of Council Directive 95/21/EC, the so-called Port-State directive, obediently transposed by the UK Government intodomestic law the Merchant Shipping (Port State Control) Regulations 1995. 

The next year, in March 1996, the Commission then published COM (96) 81 final, betraying much grander ambitions with the heading: "Towards a new maritime strategy", addressing "the problems of the competitiveness of EC shipping".

Alongside this came COM (96) 84 final on "Shaping Europe's Maritime Future", in which the commission investigated the structure and situation of "the European maritime industries" and outlined "which policy elements and initiatives it considered suitable to contribute to their industrial competitiveness". 

These communications invoked a response in the form of a Council Resolution on 24 March 1997, endorsing the new strategy. The Commission had been given a green light by the Member States. 

In addition to these high level policy issues, though, we also saw the drumbeat of routine legislation, implementing provisions agreed at global level through the International Maritime Organisation (IMO) and other bodies. An example of this came in 2001, with the passing of Directive 2001/96/EC, "establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers". This put into effect the recently agreed IMO Code of Practice known as "the BLUCode". Such measures would have been adopted by the UK, irrespective of EU involvement. 

What then gave EU policy development a considerable boost was the sinking of the oil tanker Erika in December 1999, releasing thousands of tons of oil, polluting miles of the Brittany coast. It took just twelve months for the Commission to respond with COM(2000)802 final with a series of measures which included the establishment of a European Maritime Safety Agency (EMSA). 

This got the go-ahead in 2002, with Regulation (EC) No 1406/2002, together with Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system. Its purpose was to enhance the safety of efficiency of maritime traffic, "improving the response of authorities to incidents, accidents or potentially dangerous situations at sea, including search and rescue operations, and contributing to a better prevention and detection of pollution by ships".

When EMSA became operational in 2003, it was decided that it take responsibility for setting-up and operating the new vessel traffic and monitoring system, which would be called SafeSeaNet. Setting-up commenced in October 2004 and the system became fully operational in 2009. 

Before even EMSA had ordered the office furniture, though, EU maritime policy ambitions got a further boost when, on 19 November 2002, the Liberian tanker MV Prestige sunk off the coast of northwestern Spain, releasing over 20 million US gallons of oil into the sea, polluting stretches of the Spanish, Portuguese and French coastlines. 

By now, though, the EU was planning its strategic objectives to the end of the decade, which the commission published in COM(2005) 12 final, declaring that there was "a particular need for an all-embracing maritime policy aimed at developing a thriving maritime economy and the full potential of sea-based activity in an environmentally sustainable manner".

This spawned in 2006, COM(2006) 275 final (with Annex), a Green Paper entitled: "Towards a future Maritime Policy for the Union. This was: "A European vision for the oceans and seas". With "sustainable development" high up on the agenda, the aim was "to launch a debate about a future Maritime Policy for the EU that treats the oceans and seas in a holistic way".

The year 2007 them saw the publication of COM(2007) 575 final offering: "An Integrated Maritime Policy for the European Union". This, said the Commission, "lays the foundation for the governance framework and cross-sectoral tools necessary for an EU Integrated Maritime Policy and sets out the main actions that the Commission will pursue during the course of this mandate".

Since then, the Commission has been actively pursuing the development of maritime policy. Building on what was then 16 years of policy activism, it has since initiated a number of schemes, growing the institutional and legislative framework, a process which continue up to the point that the UK leaves the EU and beyond. 

Immediately post-Brexit, a newly independent UK will have been removed from the policy-making sphere in maritime matters for nearly thirty years and, although it has been an active member of the IMO, will be struggling to make up for lost time. 

On the face of it therefore, as a short-cut to a working policy, maritime regulation would be an obvious candidate for repatriation via the Great Repeal Bill (after its Royal Assent). This, if the Government's theory stands up, means that "the same rules and laws will apply on the day after we leave the EU as they did before".

However, as we pointed out yesterday (and many times before) simply adopting EU regulations concerning maritime policy isn't going to work. The EU instruments are devoted to setting up EU structures and systems which are not easily (or at all) transportable to a UK legislative environment. We need to be building up our own policies, and then devising the legislation and other instruments to put them into effect. 

We cannot use EU law, designed to put into effect European policies throughout the EEA, to implement policies applicable specifically and exclusively to the UK. To try to do so is like using spanners to carve wood. 

To illustrate this, we can look at just one of the EU's initiatives, the "Common Information Sharing Environment" (CISE), the practical embodiment of one aspect of the 2007 policy proposal. This was to:
take steps towards a more interoperable surveillance system to bring together existing monitoring and tracking systems used for maritime safety and security, protection of the marine environment, fisheries control, control of external borders and other law enforcement activities.
The parameters were set out in more detail in late 2009, via COM(2009)538 final. Headed, "Towards the integration of maritime surveillance: A common information sharing environment for the EU maritime domain", its aim was to develop a surveillance programme that would generate situational awareness of activities at sea "impacting on maritime safety and security, border control, the marine environment, fisheries control, trade and economic interests of the European Union as well as general law enforcement and defence so as to facilitate sound decision making".

There was, the Commission asserted, a clear need to share maritime surveillance information. Different sectoral authorities dealing with monitoring and surveillance of actions at sea gathered data and operational information so as to establish the best possible maritime awareness picture for their own use. 

But, for many user communities, this picture did not include complementary information gathered by other sectoral users due to the lack of mutual exchange. 

With undeniable logic, therefore, the Commission argued that developing the necessary means to allow for such data and information exchange "should enhance the different users' awareness picture". Such enhanced pictures, it said, "will increase the efficiency of Member States' authorities and improve cost effectiveness". 

The objective of the programme, therefore, was to set out guiding principles for the development of a common information sharing environment and to launch a process towards its establishment. The accompanying staff working document then set out a complex of measures to be taken at European level, to make the system work. 

Already that year, though, there had been published Directive 2009/17/EC, amending Directive 2002/59/EC establishing a Community vessel monitoring and information system. This highly technical measure was to re-emerge two years later, when the Commission complained that the UK had not fully implemented the Directive (along with eight other States which had not implemented it at all). 

Then, in 2010, the Commission published a "roadmap" setting out the functional requirements for what it was now calling the "Common Information Sharing Environment" (CISE) for the surveillance of the "EU maritime domain". It stressed the passive nature of the project, declaring that "Integrated Maritime Surveillance" was about "providing authorities interested or active in maritime surveillance with ways to exchange information and data".

In June 2014, however, the surveillance programme became part of the EU's Maritime Security Strategy (EUMSS), thus acquiring an identifiable military dimension. The primary objective was to provide a common framework for relevant authorities at national and European levels to ensure coherent development of their specific policies and a European response to maritime threats and risks. 

A secondary aim was "to protect EU's strategic maritime interests and identify options to do so". It thus significantly strengthened the link between internal and external security aspects of the maritime policy of the EU and civil and military cooperation. 

In a joint communication from the European Commission and the High Representative for external affairs, the tasks of the EUMSS were set out. It was required to ensure an optimal response to threats, support the relevant authorities and agencies at all levels in their efforts to enhance the efficiency of maritime security and to facilitate cross-sectoral and cross-border cooperation among maritime security stakeholders. 

The strategy was thus intended to position the EU as a credible, reliable and effective partner in the global maritime domain, ready and able to take on its international responsibilities. 

As with the surveillance programme, great stress was placed on a cost-efficient approach to maritime security. The EU's maritime security is largely organised around national systems and sector-specific approaches that potentially render operations more expensive and less efficient. Maritime operations should be made more efficient by improving cross-sectoral cooperation, enabling better communication between national and EU-systems, creating effective civil-military interfaces and by translating results from research and technological development into policy. 

By July 2014, a month after the announcement on the Maritime Security Strategy, the Commission was in a position to set out further views on the surveillance programme, having Maria Damanaki, Commissioner for Maritime Affairs and Fisheries, argue that savings of €400 million per year could be made through increased cooperation and sharing of data. 

Sharing such information was vital to avoiding duplication of effort. About 40 percent of information was collected several times and 40-80 percent of information was not shared amongst the interested users. 

In pursuit of its plans, the Commission set out eight further steps required to give shape to the CISE, and to bring systems to fruition, culminating by 2018 in the launch of a review process to assess the feasibility of implementation and the need for further action. 

Even then, the Commission was at pains to emphasise that ensuring the effective surveillance of waters under their sovereignty and jurisdiction, and on the high seas if relevant, remained the responsibility of Member States. The operational exchange of maritime surveillance information between national authorities also remained with Member States. The role of EU agencies was to "facilitate and support this process". We are told:
Maritime CISE is a voluntary collaborative process in the European Union seeking to further enhance and promote relevant information sharing between authorities involved in maritime surveillance. It is not replacing or duplicating but building on existing information exchange and sharing systems and platforms. Its ultimate aim is to increase the efficiency, quality, responsiveness and coordination of surveillance operations in the European maritime domain and to promote innovation, for the prosperity and security of the EU and its citizens.
Untypically, therefore, the Commission averred that "the operational aspects of such information exchange" needed to be "decentralised to a large extent to national authorities in line with the principle of subsidiarity". On this basis, CISE as a project seems largely benign, and the timescale is such that it could be coming into effect around the same time that Brexit takes effect. 

On paper, (as expressed in 2014), the UK Government supports the initiative, aiming to play "a leading role" in developing it. As part of the Brexit negotiations, therefore – and the internal policy discussions which will inform them – the UK will have to decide whether it wants to continue with this programme. In the context, the Great Repeal Bill is an irrelevance. This is a policy rather than a legislative issue. 

The generality of the maritime policy is, of course, another matter, but much will depend on the UK attitude to the surveillance programme and related matters before Mrs May goes to Brussels. So far, the silence is deafening, but this is more than just a loose end. Before the Brexit negotiations are finished, we must know the UK position, and how it will relate to EU plans.

Tuesday, February 21, 2017

Brexit: tales of the Raj

In Flexcit, we readily acknowledge that repatriation of EU laws must be part of the Brexit package.

We point to post-independence experience in Ireland and India for precedents, where each administration simply adopted laws made while their countries were under British control, and carried on with them unchanged, until they had time and resources to bring out new laws. 

Even then, the process can be somewhat protracted, with a report in 2014 that India was still going through its statute book, weeding out archaic laws stemming from the Raj. 

However, our enthusiasm for the process was conditional on the adoption of the Efta/EEA option, where the EEA has an institutional and legal framework which enables the Single Market acquis to function in a coherent manner. 

That would account for over 20 percent of the acquis communautaire, with much of the rest being discarded as unwanted. The most significant tranches of law that would have to be dealt with outside the EEA framework would be the CFP and CAP acquis but even these could be brought into the EEA via country-specific protocols and annexes, buying us time to develop unique policies applicable to the UK. 

As the Government seems to have turned its face against this option, it is instead relying on the Great Repeal Bill to facilitate legislative continuity and to avoid huge gaps appearing in the statute book. 

However, as is becoming increasingly apparent, simply re-enacting Brussels laws – in the way that British colonial law was treated - is not proving as easy as was imagined. The problem lies in the way the different sets of laws have been conceived and applied. 

When the UK produced laws for India and the other colonies, they were most often produced by the Viceroy/governor general in India, and by governors in other territories. At state or subordinate level, you would also have law-making powers, by lieutenant-governors or some such. Even though they were made under British rule, they were still local laws, specific to the territories to which they applied. 

There is an Indian example here, in the notorious Criminal Tribes Act 1871. As can be seen, it was made by the Governor General (Viceroy) in Council and, rather than Royal Assent, was given the assent of the Governor General. And that's the interesting thing: most of the laws were made in India specifically for Indians. 

Here is another example, this one from New Zealand, the Land Registration Act 1841. There is a difference in style, as this is enacted by "His Excellency the Governor of New Zealand, with the advice and consent of the Legislative Council thereof". But it is a New Zealand Act, dealing with New Zealand issues. 

Even when laws were produced by Westminster, they largely dealt with specific issues in the territories to which they were addressed. The classic was the Government of India Act 1935 which, at 341 pages, was said to be the longest Act (British) of Parliament ever enacted by that time. It had 321 sections and 10 schedules. But it was a decentralised system, even when the law was made in London. And then it was done on a much smaller scale. 

In India, for instance, the Crown took over rule only in 1858 and between then and 1947, when independence was granted, Westminster only passed 196 Acts concerning the sub-continent. The 1935 Act granted a large measure of autonomy to the country and ended the system of diarchy introduced by the Government of India Act, 1919.

With the EU, though, not only is the scale of legislation different with about 20,000 laws currently in force, it is also a rigidly centralised legislature intent on creating EU systems. 

Unlike the British Empire, law-making is centralised, with the right of proposal reserved for the European Commission in Brussels. The completed law is then administered by the European Commission in Brussels, backed up by a single court in Luxembourg.

Even India had considerable judicial independence, with its own High Courts, created by the Indian High Courts Act of 1861, with its own chief justice. Latterly, by authority of the Foreign Judgments (Reciprocal Enforcement) Act, 1933, we were to recognise and enforce (where relevant) its judgements in the UK.

In the centralised EU system, though, EU law imposes a common system on all Member States which have to work together as part of a whole. When a Regulation is "done in Brussels" and enters into force, it applies immediately to all 28 Member States, having direct effect without any intervention from national legislatures. 

The law that applies in one Member State simultaneously applies in all others. It is system-wide law aimed with the aim of integrating the Member States into a single administrative body. 

That was never the case in Commonwealth and Empire. Law was made for each of the territories. Thus, law made for Australia would not apply to India, nor to South Africa - there was no Empire law, as such, a single body of law made in London which would apply to the UK and then equally and simultaneously to the rest of Empire. 

Thus, when it comes to the Great Repeal Bill, the Government is gong to have great difficulty in separating out the functional aspects of the law and those dealing with the establishment of the EU systems, which are worked into the law. It will need to keep the one and remove the other. And that's not as easy as it looks. 

We've seen this with fishing, where the core regulation does not just regulate fishermen but also sets up the Common Fisheries Policy, empowering the European Commission to perform certain functions, and imposing the duty of co-operation on (multiple) Member States. 

Had the fisheries policy been written on the lines of Indian colonial legislation, it would have been framed by a "governor" based in London but appointed by Brussels, yet would have applied solely to UK waters. That we could have adopted, pro-temp, until we had something better. But Regulation 1380/2013, as it stands, is unusable without very substantial amendment. 

More recently, we've seen exactly the same type of problem with the Lift Directive. This is also dual-purpose regulation Not only does it legislate for lift safety, it is one of the "New Legislative Framework" package which sets up a Brussels-based system of control over a wide range of products. As such, once again, it empowers the Commission and places cooperative duties on Member States. 

We've been though many other examples, from chemical regulation to Air Traffic Management, and there are many more to come. But even now, it is evident that Government has vastly under-estimated the complexities of repatriation, and is not at all geared up to dealing with the problem. 

The original proposal to adopt the Efta/EEA option as an interim solution to a staged process was intended to avoid problems such as these, but we have seen Davis, May and the others, blunder into a "plane crash Brexit", eyes wide shut. 

They've committed themselves to something that is virtually impossible to achieve in the time, and don't even understand the scale of the mess they've landed themselves in.