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Optimism for shift on ‘level playing field’ in Brexit trade talks

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Michel Barnier’s claim on Monday that fishing may now be the toughest obstacle to a UK-EU trade deal suggested both sides were inching towards an agreement on the most intractable element of the talks: the so-called “level playing field”.

The issue has dogged negotiations, spawning its own lexicon of “ratchet clauses”, “evolution mechanisms” and “punishment beatings” to describe attempts by the EU to stop Britain undercutting its regulatory model in future and gaining an unfair competitive advantage.

Both sides claim the other has given ground in recent days, fuelling optimism over a deal. Mr Barnier, the EU chief negotiator, has even coined an unthreatening new name for the compromise taking shape: “the rebalancing mechanism”.

Boris Johnson, the UK prime minister, conceded the need for a set of principles for fair competition between the UK and EU as far back as October 2019, in a joint political declaration which confirmed that Britain was in a different situation to Canada when it came to securing a trade deal with the bloc.

“Given the [European] Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field,” the declaration said.

Both sides could agree in principle to “non-regression” — the idea that Britain and the EU would not go backwards from the standards they will have in common on January 1, when the post-Brexit transition period ends.

But the EU sought during the future-relationship negotiations to go further and stop the UK stealing an unfair competitive advantage on the 27 member states by having less stringent regulations in the future.

Mr Barnier, under instruction from EU member states, sought a system to ensure that if Brussels strengthened its regulations in areas like environmental protections, pressure would be brought to bear on the UK to do the same.

Both sides have made concessions, but one of the biggest came from the EU in July when Mr Barnier accepted Mr Johnson’s “red lines” and said there was no need to build the level playing field around EU law and the European Court of Justice, so helping Mr Johnson honour his promise that Brexit would free the UK from the bloc’s oversight.

The EU side was disappointed that Mr Johnson did not immediately reciprocate with big concessions of his own, but one British official said this week: “That move alone by [Mr] Barnier would allow the PM to claim a stunning victory — they have moved a long way.”

However over the following months there were bitter disagreements about what the level playing field should really mean.

During the summer, Brussels pushed for an “evolution clause” — branded a “ratchet clause” by the UK.

This would have established a system where, when one side was planning to toughen its regulations, there would have been a discussion with the other about moving forward together. The idea was to raise the joint floor for standards to a new level below which they could not then be cut, with fallback measures in the absence of an agreement.

Mr Johnson opposed that idea, fearing a future Labour government could work with the EU to introduce “anti-business” regulations, making it impossible for a future Tory government to cut them without incurring sanctions.

In the face of that opposition, the EU pivoted in recent weeks to a new approach. It proposed a “mechanism” that would be reactive rather than proactive — allowing either side to sound the alarm bell if it felt regulations had diverged to a point where its businesses were placed at a disadvantage.

Under this plan, as a last resort, the disadvantaged side could impose tariffs on imports to defend its companies and re-establish the level playing field.

In the first week of December the issue threatened to blow up the talks, as Mr Barnier tabled what Mr Johnson claimed were “new” demands — driven, according to Downing Street officials, by French president Emmanuel Macron. The UK side claimed the issue had derailed talks that were making promising headway.

The EU insisted there were no new demands, but Mr Johnson complained Brussels wanted the “automatic” right to impose sanctions on Britain if it deviated from Brussels regulations.

Britain also claimed that the EU plan would allow sanctions to be imposed even if there was scant evidence of serious harm being caused by divergence. “They were setting the bar very low,” said a British official.

The breakthrough came this weekend. Mr Barnier told EU ambassadors on Monday that Britain had accepted the principle of having the mechanism if enough safeguards were built in to prevent abuse — removing the threat of “lightning tariffs” imposed by the EU

EU officials said that talks were now centred on the tests for working out if the level playing field is in jeopardy, on the processes for using the mechanism — including the role of independent arbitration — and on the remedies that the disadvantaged side could take.

The progress means the two sides are no longer arguing about big
political questions of British sovereignty versus the integrity of the
EU single market: now they are debating ways to manage regulatory
divergence in the future.

Dominic Raab, the UK’s foreign secretary, archly said on Sunday that there were “always creative contours” in the drafting of any agreement to paper over cracks.

Mr Johnson’s allies are already branding the proposed new mechanism a “freedom clause” — a title aimed at reassuring Tory Eurosceptic MPs that Britain would retain the right to set its own regulatory course, albeit with an orderly system of “rebalancing” tariffs if divergence was too great.

For the EU’s 27 member states, the new mechanism would be hailed as a guarantee against the danger that a red-blooded deregulatory Tory government might in future unfairly undermine the EU single market. A potential deal which allows for two rival definitions of “victory” appears to be taking shape.



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EU pledges aid to Lithuania to combat illegal migration from Belarus

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EU immigration updates

In the latest sign of deteriorating relations between the EU and Belarus, Brussels has promised extra financial aid and increased diplomatic heft to help Lithuania tackle a migrant crisis that it blames on neighbouring Belarus and its dictator Alexander Lukashenko.

Lithuania detained 287 illegal migrants on Sunday, more than it did in the entirety of 2018, 2019, and 2020 combined, the vast majority of them Iraqis who had flown to Belarus’s capital Minsk before heading north to cross into the EU state. Almost 4,000 migrants have been detained this year, compared with 81 for the whole of 2020. 

“What we are facing is an aggressive act from the Lukashenko regime designed to provoke,” Ylva Johansson, the EU commissioner for home affairs told reporters on Monday after talks with Lithuania’s prime minister Ingrida Simonyte. “The situation is getting worse and deteriorating . . . There is no free access to EU territory.”

The EU imposed sweeping sanctions against Lukashenko’s regime in June, after he fraudulently claimed victory in last year’s presidential election and then led a brutal campaign to violently suppress protesters and jail political opponents. Lukashenko has ruled Belarus since 1994.

The rising concern over the migrant crossings, which EU officials say is a campaign co-ordinated by Lukashenko’s administration, comes as one of the country’s athletes competing in the Tokyo Olympic Games sought refuge in Poland after team management attempted to fly her home against her will after she publicly criticised their actions.

Johansson said the EU would provide €10m-€12m of immediate emergency funding and would send a team of officials to the country to assess the requirements for longer-term financial assistance, including for extra border security and facilities to process those attempting to enter.

Simonyte said that Vilnuis would require “tens of millions of euros” by the end of the year if the number of people attempting to cross the border continued at the current pace.

Lithuania’s foreign minister Gabrielius Landsbergis told the Financial Times in June that Belarus was “weaponising” illegal immigration to put pressure on the Baltic country over its housing of several opposition leaders. Since then, the flow of illegal immigrants from Iraq, Syria, and several African countries has increased sharply.

Iraqi diplomats visited Vilnius at the end of last week after Lithuania’s foreign minister flew to Baghdad in mid-July. Johannson said on Monday that EU diplomats were engaged in “intensive contacts” with Iraqi officials, which she said were “more constructive than we had hoped”.

State carrier Iraqi Airways offers flights from four Iraqi airports to Minsk, according to its website. Former Estonian president Toomas Ilves suggested on Twitter that the EU could cut its aid to Iraq “immediately until they stop these flights”.

Speaking at the border with Belarus on Monday, Johansson added that the tents provided by Lithuania were unsuitable for families. Lithuania’s interior minister Agne Bilotaite said she hoped the number of illegal migrants would subside in the coming months but that Vilnius was planning to build some housing to accommodate them over the upcoming winter.



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Britain’s wrong-headed approach to refugees

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UK immigration updates

Thanks to the bravery of volunteers who run towards storms at sea to rescue ships’ crews, few British institutions command as much respect as the Royal National Lifeboat Institution. The charity, however, has recently had to negotiate a different kind of storm, over its efforts to help refugees who get into difficulties crossing the Channel from France. Nigel Farage, the former Brexit party leader, accused it of running a taxi service for illegal trafficking gangs. Last week, the RNLI said it had received hundreds of thousands of pounds of extra donations in response.

The RNLI has become embroiled in a now familiar story when the summer months allow more small boats to make the Channel crossing. Compared with the flows to other countries such as Spain, Italy and Greece, only a handful of migrants attempt the journey. That makes the UK’s inability to control the border in an effective and humane way — and shabby treatment of those who do make it across — no less of a scandal.

Britain’s strategy for stemming the flow has relied mostly on paying the French authorities to limit the number of boats crossing and return any that leave to France, while deterring would-be migrants through the unwelcoming environment that awaits them. Just as EU countries are dependent on their neighbours for keeping entrants down — whether Morocco for Spain or Belarus for Lithuania — the UK needs French co-operation to control the mutual border. Diplomatic spats, whether over Brexit or extra Covid quarantine restrictions on arrivals from France, have made that harder.

The UK approach manages to be simultaneously ineffective and cruel. Yvette Cooper, chair of the home affairs select committee, wrote last week to home secretary Priti Patel to complain of unacceptable conditions in the holding facility for migrants who make it to the Kent coast. A recent unannounced visit by MPs found most of those remaining in the overcrowded facility sitting on a thin mattress on the floor, with women and children in the same room as adult men.

Earlier this year, the High Court ruled that “squalid” conditions in the Napier Barracks, a temporary centre set up last year to house asylum seekers during the pandemic, were so bad as to be unlawful. While arrivals have declined since the peak seven years ago, cutbacks have led to a backlog in processing claims, leaving more in a legal limbo.

Since the start of the pandemic Britain has shut down other paths into the country, ending a resettlement scheme. This has ceded the ground to people traffickers. The “push factors” of the risk of violence and torture at home and “pull factors” of higher living standards mean many are still willing to resort to risky and illegal methods to try to reach the UK. Creating a harsh environment for those who make it has done little to dispel the widespread belief among migrants that Britain is a better destination than other European countries, and stem the flow.

That will not stop the government trying. Barristers have warned that a clause in draft border legislation could potentially make it a crime to help asylum seekers arrive in the UK, with a maximum penalty of life imprisonment; at present it is illegal to do so to earn a profit. The Home Office says the clause is aimed at criminal traffickers. But along with a suggestion to set up offshore processing centres, the provision has rightly earned criticism from human rights groups. If the government is unwilling to create safe and legal routes, its only option is to prevent people from coming in the first place. That, ultimately, will mean relying on France.



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Olympic organisers investigate after Belarusian runner seeks refuge

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Tokyo Olympics updates

A Belarusian runner due to compete at the Tokyo Olympics was taken to the airport against her wishes after making complaints about her coaches, according to media reports on Sunday night.

The International Olympic Committee, the Games organisers, said it had asked for clarification from the Belarus team about the status and whereabouts of Krystina Tsimanouskaya, who is due to compete in the women’s 200m sprint on Monday.

Belarus’ dictatorial leader Alexander Lukashenko and his regime are widely seen as international pariahs after he fraudulently claimed victory in last year’s presidential election and then embarked on a brutal campaign to suppress protesters and supporters of his rival, which has seen thousands beaten and jailed. 

Images and video circulated on social media sites by Belarusian opposition activists appear to show Tsimanouskaya at Tokyo’s Haneda airport, where she refused to board a plane and instead sought refuge with Japanese police.

Krystsina Tsimanouskaya took part in the heats for the women’s 100 metres on Friday but narrowly missed qualifying for the semi-finals © Aleksandra Szmigiel/Reuters

The IOC said it “has seen the reports in the media, is looking into it and has asked the [Belarus] national Olympic committee for clarification”.

Japanese police did not immediately respond to requests for comment.

The Belarusian Olympic Committee did not immediately respond to requests for comment, but a statement attributed to the body suggests she had been removed from competition by coaches on the advice of doctors advice about her “emotional, psychological state”.

Late on Sunday, Tsimanouskaya shared a screenshot of that statement on Instagram with the message: “This is a lie.”

“I am asking the International Olympic Committee for help, they are putting pressure on me and they are trying to take me out of the country without my consent,” Tsimanouskaya said in a video message reportedly recorded on Sunday evening from the airport and posted on social media.

A person close to Olympic officials said there remained “confusion” around the incident, adding they had been told that Tsimanouskaya had boarded a coach to the airport and had gone through the departures area to board a plane to Istanbul, where she then sought Japanese police to ask for asylum.

Belarusian opposition leader Sviatlana Tsikhanouskaya tweeted that she was grateful to the IOC for its quick reaction. “She has a right to international protection and to continue participation in the Olympics. It is also crucial to investigate Belarus’ NOC violations of athletes’ rights,” she said.

Tsimanouskaya on Friday appeared to criticise her coaches and team management in an Instagram post that said she had been “ignored” and that “people in higher ranks should respect us as athletes”.

The 24-year-old had taken part in the heats for the women’s 100 metres on Friday but narrowly missed on qualifying for the semi finals of the event. She is listed on official Olympics sites as due to compete in the first round of the 200 metres at the Olympic stadium on Monday morning.





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