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Britain and the EU: avoiding failure of statecraft 

Eu Commission President Von Der Leyen Meets British Pm Johnson In Brussels
European Commission President Ursula von der Leyen welcomes British Prime Minister Boris Johnson in Brussels, Belgium December 9, 2020. Olivier Hoslet/Pool via REUTERS
When the EU talks about a level playing field it assumes one dimension

 

A “LEVEL playing field” and “the playing fields of Eton” are two aspects of the English character and sense of fair play that makes Britain a paradigm state in European eyes.

The first is now used by continental leaders such as Angela Merkel to persuade Britain to accept future EU competition rules by the use of English idiom.

The second is attributed to the Duke of Wellington who allegedly said that the battle of Waterloo was won on the playing fields of Eton, which is as relevant to the current battle Britain is engaged with Brussels over the elusive trade deal as it was at the time of Wellington – given that Boris Johnson not only went to Eton but also likened the EU to Napoleonic Europe during the Brexit campaign.

Britain is admired and distrusted in equal measure in Europe, but her essential position in refusing to be bound by the EU’s future competition rules is as sound as it is rational.

Britain wants access to the EU Single Market on terms that would enable her to preserve her recently regained sovereignty. As Britain is a huge market for German cars and French wine, among lots of other products from most EU countries, and as the EU is a huge market for Britain you would think a trade deal inevitable, but there is a problem because the EU wants to retain control beyond its grave in Britain.

The EU insists that British access to its Single Market should not give Britain an unfair advantage – the so-called principle of the level playing field whereby enterprises in all member states of the EU compete under the same competition rules. The British accept this principle as regards the current competition rules, but they are not prepared to agree to be bound by future rules that they do not know and in respect of which they would have no say.

At present British law is fully aligned to EU competition law and Britain is prepared to keep it that way, but she is not prepared to bind herself to comply with future EU competition rules – and quite right too. If for example the EU were to introduce a 10-hour working week for some industries Britain would have to follow suit, even if it is against Britain’s economic interest. Or if the EU were to ban all subsidies to pharmaceutical enterprises and Britain were subsidising research at its universities it would have to stop subsidising such research even if it is prejudicial to public health in Britain.

These are of course arguments ad absurdum. They posit extremely unlikely eventualities, but they are good pointers to the irrationality of the EU’s negotiating position in favour of dynamic alignment as the EU euphemistically calls controlling Britain’s future competition rules. The EU cannot legitimately expect Britain to go along with future EU laws however irrational from Britain’s standpoint. It makes a lot more sense for future competition rules to be considered as and when they are made rather than theoretically in case they are made.

It is not only an irrational demand it is also disrespectful towards an important Nato ally on whom the security of many EU states depends. In any case when the EU talks about a level playing field it assumes one dimension: one side playing downhill and the other uphill. In my experience of playing football in open spaces in Limassol in the 1950s, playing fields are sometimes uneven in different places and, worse still, the goalposts are sometimes moved to obtain an unfair advantage – in my day they were just two big stones and the distance between them varied depending on the keeper’s sense of unfair play.

The British argue that they were led to believe they would not be required to agree to be bound by future competition rules but suddenly, about two weeks ago, apparently on French insistence, the goalposts were moved after they agreed to abide by current competition rules.

It is true that the British are being bloody minded over fishing, which does not go down very well with French fishermen. As there will be an election in France soon and as losing out on fishing rights to the British would be unpopular with the French electorate, the British could and should be more flexible on fishing.

There is still time in that we have the glimmerings of a deal on the horizon if the British were to make enough concessions on fishing in return for being required to be bound by current competition rules only and consign dynamic alignment to the thesaurus of bad euphemisms.

The megaphone disagreements over the trade deal between Britain and the EU has been called a clash of ideologies. The EU favours a Hegelian system of rules and regulations to cover every future possibility whereas the British prefer proceeding pragmatically in light of experience albeit ideologically hung up on sovereignty.

Every time a state agrees to be bound by an international treaty it surrenders sovereignty in the area of law covered by that treaty. The surrender of sovereignty involved in being a member state of the EU, however, is of different magnitude because the EU replaces the state independently of the wishes of the individual member state and its people.

Thus, whereas binding Britain to the EU’s future competition rules would be as if the EU were allowed to replace the British state in respect of competition law, agreeing not to insist on Britain’s strict legal rights under international law with regard to fishing would not involve a surrender of sovereignty at all. Indeed, there are respectable arguments for saying that deciding to allow French fishing in UK fishing waters is an exercise of sovereignty.

According to Boris Johnson leaving the EU with no deal would be a failure of statecraft. It would also be daft when the fishing industry represents a tiny percentage of the British economy. So he should get off his high horse and think of the bigger catastrophic picture if he does not broker a deal.

And when he goes to Brussels hopefully to close a deal, he should not allow himself to be put down in public by old bossy boots Frau Ursula von der Leyen for invading her personal space – let alone in the time of corona.

 

Alper Ali Riza is a queen’s counsel in the UK and a retired part time judge

 

 

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