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The Devil Still Dances in The Defence Details

brexit Defence Details
Written by Gwythian Prins

The national security imperative is for a strong majority Conservative government to extricate the UK from the EU Defence Union.

This article revisits and develops warnings about threats to national security arising from the conduct of our exit from the EU that have already been published in earlier articles on Briefings for Brexit.[1] A proper understanding of current risks is more essential than ever due to the narrow pathway to safety opened by the Johnson Withdrawal Agreement. Thankfully the Johnson Deal is not the May Deal. But it still entails risks to national security. Four major threats present as we enter the election campaign:

(1) Further advances in the scale and ambition of the EU’s declared intention to create a Defence Union to support its nascent ‘empire’. Defence Union is accelerating even faster under Commission President v.d. Leyen. As the rickety EU ‘project’ moves towards its final federal destination, all pretence of this being anything other than a full power grab from member states has been abandoned.

(2) The risks still latent in the revised Johnson WA and PD in the hands of civil servants with conflicted loyalties (identified in earlier articles, notably Leaving Hotel California). The deal is by no means ideal; but the risks in the defence and security area have moved from being  intolerable to manageable if people fully understand them so that they can be properly mitigated. Furthermore, Government has just deployed a model S.I. which begins to do this.

(3) The danger that the Brexit Party may take positions that kill Brexit. It is good that Nigel Farage has rowed back from the plan to contest all seats; but it would be better still if a coupon arrangement with the Conservatives on all marginal Labour Leave and Remainer seats that the Conservatives might win and those seats where one or other party has a no chance of winning but the other does could be agreed, formally or informally. This of course involves give and take from all Leavers.

(4) Further open evidence from senior US sources of the threat to the Five Eyes alliance if the government does not quickly neutralise residual risks in the Johnson deal.

 

How we got here

After the British people had instructed their government to leave the EU, Defence Union took off through the framework European Defence Action Plan and the Security & Defence Implementation Plan in November 2016, and thence through five successive EU councils. Three legal orders are entwined and in play when it comes to the UK’s involvement in EU Defence Union – domestic Common law, EU law and international treaty law. In its consistent assertions that – unlike every other policy area under EU jurisdiction – the UK can “pick and choose” its defence adhesions to the Defence Union, MoD policy leads commit the basic mistake of failing to appreciate the consequences of this triple linkage.

The EU Defence Union foundation agreements and implementing legislation are all made in and under EU law, and everything is linked to everything else. So, like a spider’s web, to touch one part – say May’s perverse ambition (which persists under Johnson’s MoD) to keep the UK in the EDF and industrial programmes – is to be trapped under the strategic control of the Global Strategy in the EU’s Common Security & Foreign Policy. Partnership as we understand it has never been on offer from the EU, as M. Barnier reminded us in the Sunday Telegraph in September. Participation of any kind is structurally prescribed to be integration, not cooperation. This cannot be stressed too often.

graph

This diagram shows the current state of UK adhesions. All were made by the May government after the referendum vote to leave the EU in breach of the Scrutiny Reserve Act of November 1998 and without a parliamentary vote. Former FCO minister Alan Duncan signed up to an especially damaging group of adhesions at the Council of 19 November 2018 (see sections shaded red in the chart above).

But (and worryingly some Brexit Party material seems not to capture this), the Johnson deal which Parliament refused to approve in time to leave on 31 October 2019, has materially changed the UK’s position in the national security area from that prescribed by May’s deal.

The May deal

May’s deal was intolerable on almost every level. It was called a ‘political Chernobyl disaster’ by Martin Howe QC, and its manifold defects were spelled out in the definitive reference article Avoiding the Trap (also available on Briefings for Brexit).[2] It was without question the worst treaty ever signed by a British Prime Minister, in many ways more punitive than the terms imposed upon defeated Germany in 1918. We have since learned that, with a telling historical precision, its shorthand  name within Michel Barnier’s office was “Versailles”. As the fly-on-the-wall documentary about Guy Verhofstadt revealed with reckless honestly, EU officials knew exactly what they wanted – Great Britain chained under EU power as a voiceless colony, pour décourager les autres.

The Johnson deal

The Johnson deal as a whole is by no means what most Briefings for Brexit experts would advise were we starting from a clean slate. In the national security area specifically, it is not what either I or the Veterans for Britain experts would advise as an optimal solution. But the slate was actually pretty filthy when it was passed to the Prime Minister. He decided that he would seek to carry the overwhelmingly Remain-inclined MPs of the last Parliament with him, and in this he succeeded before the dissolution. It was a remarkable political achievement. And viewed from the winning side of the referendum, there has been just enough movement in key areas to cause Martin Howe, Conservative ‘Spartan’ MPs, the Briefings for Brexit editors and advisory board members as well as the Veterans for Britain board, to argue that the Johnson deal should be supported as a tolerable price to regain our freedom.

Defence and security – Johnson’s deal v. May’s deal

In the defence and security area, the Johnson WA, Cl 129.6 gives the UK a mechanism for universal opt-out from the EU Defence area. But the opt-out has to be exercised case by case.[3] The risk it poses is a matter of judgement. This is better than the killer agreements to subordinate us to EU defence structures consciously made by the May government. But it is still drafted on EU terms. Therefore it remains a risk, requiring constant vigilance and opt-outs by the British government. All well and good if ministers are on top of their briefs and ensure that they take these political decisions in Cabinet – but a real danger if they simply rubber-stamp recommendations made by civil servants like Angus Lapsley and Bryan Wells in the MoD­­[4], who have shown deep institutional capture by the EU and appear unable to grasp where the UK’s strategic interests lie.

Johnson’s PD has materially changed in significant and – from our point of view – positive ways. In Cl 99, on operations, the opt-out of WA 129 is reversed to opt-in. Cl 101, on conditions for force contribution, is framed on the NATO text and gives us command positions proportionate to contribution. Vital is deletion of former clause 104, under which we agreed to subordinate the UK to the EU’s Global Strategy via the oblique route of engagement in the defence industrial area under EU law. Instead, in revised PD 102, we “agree to consider… “.  This commits us to absolutely nothing. Brexit Party papers have either misread or misunderstood this essential change, of which Veterans for Britain is well aware.

In the intelligence area, the really dangerous former clause 118, which linked to Cabinet Office security paper of 28 November 2018, gave the EU automatic entry into UK intelligence collection, methodologies and processing, is replaced by Cl 103. This provides for the “timely and voluntary” supply of case-by-case intel that will be “produced autonomously”.

Mitigating risks – strategic positioning

So what were killers are now downgraded to serious material risks. That is still not an acceptable final outcome. I am a fundamentalist on this: the EU has no business in the defence, security or intelligence areas at all.

It is as big a strategic mistake to underestimate one’s power as to overestimate it. Viewing European states re-based on Great Britain as the leading European state in terms of geo-political capability (100%),  France (92.12%), Germany (86.48%), Russia (66.29%), Italy (63.81%) and Turkey (46.16%) follow in order. In the HJS twenty state index, Russia, while scoring second after the USA for military might, ranks 10th overall, after India and just ahead of S Korea. This is realpolitik in the real world, outside the decadently extravagant and empty European Parliament building in Strasbourg. It should not be forgotten.

Defence treaty

A defensive defence treaty with the EU is “oven-ready” as the PM might say. I drafted it earlier in the year with Sir Richard Dearlove, former Chief of the SIS and Field Marshal the Lord Guthrie, former Chief of the Defence Staff. It has been stress-tested by international lawyers, and expresses what we believe to be the correct terms for UK relationships with the EU after we have left. It is available on the Briefings for Brexit website.[5] This treaty ought to be advanced as soon as we have a Johnson Government with a working majority, which can leverage that majority to the maximum in negotiations with the EU.

Them and us

It would be wise to apply Monty’s First Principle of Warfare – “identify your enemy” – for these vital defence talks. We often hear about our “friends and allies” in the EU, but we should understand that in this matter they are not. The central raison d’être of the accelerating drive towards an EU Defence Union, championed by President Macron, Ms van der Leyen and the ultra-federalists now in charge in Brussels, is to demonise and exclude the USA and fracture the Anglosphere alliances. Indeed, in his Armistice Day interview last year, given on French local radio from Verdun –  as heavily symbolic a place in modern French history as you could possibly choose – President Macron explicitly identified the USA as one of the EU’s potential future enemies. In November 2019 he opined that NATO was now ‘brain dead’. Never underestimate the schizophrenia of the European intelligentsia who hate owing their freedom to the “uncouth” Yanks buried above Omaha Beach or to their ancient foes, the Brits.

And our British “exception” – so visible as I gazed down on the doughty block of Brexit Party Union Jacks in the vast arena of the EU Parliament chamber during the EU budget debate, whose very emptiness spoke volumes of the democratic deficit which is the EU’s fatal hall-mark – is easily explained. Every European country, including my own dear half-country (my father escaped across the North Sea to England from The Netherlands on the last fishing boat to make it safely after the German invasion in May 1940), has a recent past of which, to a greater or lesser degree, it ought to be ashamed. Except Great Britain.

De Gaulle was quite correct. We never belonged in this tragi-comic play. But as the entire EU ‘project’ lists and founders, holed by the self-attached limpet mine that is the Euro and sinking from widespread lack of popular legitimacy, ultra federalists are doubling down in this very area of the Defence Union in a last push to try to save their leaky craft, their perks and their jobs. They neither act nor speak like “friends and allies”. This is why we should all pay close attention. For the nomenklatura in Brussels, it is a battle for survival; and cornered animals are dangerous indeed.

EU threat to existing security alliances

So precisely wherein does the threat to Five Eyes lie? So long as the result of the general election does not cause us to lose Brexit, we will shortly execute a geo-political pivot of epic importance. Great Britain will revert from the unhappy and awkward continental entanglement of the last forty-six years to our natural alignment, which suits our temperament and true interests – back to the open seas, the Commonwealth at large and the Anglosphere. And once we are gone, the EU bureaucrats know they will never get us back – and we will thrive, which they cannot bear. Hence, I suggest, the deliberate pre-emptive efforts to fracture our relationships within the Five Eyes intelligence alliance, the fundamental alliance that keeps the Free World free.

A contradictory weakness lies in the revised PD. There are the welcome changes specified above; but there is also a sweeping and vaguely drafted cl 11 – which therefore contains risk. Therefore, absent domestic legislation to annul all the defence adhesions made since 2016, the UK might still be compelled by the WA during any transition period to apply the EU’s CSDP, and since everything is attached to everything else, the EU Global Strategy could therefore rule. The Global Strategy document calls for a hub-and-spoke intelligence arrangement between the EEAS (foreign service), EU INTCEN (Intelligence Centre) and the national intelligence capabilities of the CSDP states; and the current Director General (Strategy & International) at the MoD, Angus Lapsley, warmly approves of the Global Strategy. The relationship would be structural, not ad hoc relationships. So despite revised cl 103, which softens but does not on its own remove this risk, they threaten the Five Eyes Intelligence Alliance that is the bedrock of western security. Particularly in light of what we know of conflicted loyalties in the current senior civil service, but fundamentally because these are constitutionally ministerial, and especially Prime Ministerial, responsibilities, these are decisions that should not be delegated to officials. Action This Day, Prime Minister!

Be under no illusion. Were we, upon leaving the EU, incongruously to allow it access either to primary collection, to Five Eyes analysis or to our sources or methodologies in either, we would rupture our principal security alliance. This is why we need our treaty text and not the fluid and more dangerous language with which the Government appears to be toying.

Accumulated evidence now suggests that the EU’s aim is less to gain intelligence for itself and more to torpedo the structures and alliances on which both our current and future security are based. In short, its intentions are far more dangerous than generally understood.

Bomb Disposal: defusing the EU’s security IED

Happily, there are now encouraging signs of awareness of the need for pre-emptive protective action, together with the legislative mechanism to achieve it. A key Statutory Instrument has just been made. In its own words, the Government explains that… “In the area of cyber security, the Network and Information Systems (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 revoke SIs giving the EU the authority to regulate in matters of cybersecurity. Part 1 amends the Network and Information Systems Regulations 2018 (S.I. 2018/506) (“the NIS Regulations”), which implement Directive (EU) 2016/1148 of the European Parliament and of the Council concerning measures for a high common level of security of network and information systems across the EU (“the NIS Directive”). Part 1 also revokes Regulation (EU) 2019/881 of the European Parliament and of the Council of 17th April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act) (OJ L 151, 7.6.2019, p. 15) (“the ENISA Regulation”)….  The ENISA Regulation is being revoked because it establishes and confers functions upon the European Union Agency for Network and Information Security (ENISA), which is an EU body. [emphasis added]. The ENISA Regulation … is being revoked so as to remove it from the UK statute book”. The net effect is to keep control of cyber security in the UK after exit day.

What is now required is action via similar SIs to revoke EU powers in all other areas of defence, security and intelligence to protect our position during any transition period, pending the passing of a defence and security treaty in the terms that we drafted. Therefore this cyber-security SI is important both in itself and as a precedent, showing the most effective route to annul the dangerous adhesions made without parliamentary scrutiny since 2016.

The domestic threat to Five Eyes

There is also a domestic threat to Five Eyes. It is one that the Brexit Party has the leading national power and responsibility to avert and it has a name: Corbyn. To allow this dedicated enemy of his own country and his associated band of Trots, Wykehamist Maoists, Marxists and intellectually lazy metropolitan virtue-signallers anywhere near our deep security instruments would wreck our security entirely. The Five Eyes partners would have to regard Her Majesty’s Government as a suspect and untrustworthy ally. Washington and Canberra would become the twin axes of global security.

General election and the defence of the realm

The Brexit Party’s leading responsibility here is clear and strong. Now the election is coming, the thwarted Remainers who never give up will form comprehensive alliances, standing down in favour of each other. It is happening already. Remainers will make arrangements in all constituencies to maximise their chance of a win. The representatives of the people who spoke so decisively in June 2016 absolutely must do the same, whether by formal or informal arrangement. We will never be forgiven if the Leave vote is split. There must be no more Peterboroughs or Brecons. The next election must be a ‘coupon’ election one way or another, as Mr Farage has patriotically offered.

Unfortunately he attached to his original offer both factually inaccurate views about the Johnson deal and the unacceptable condition that Brexit be delayed so the Johnson deal could be torn up. He still claims that the Johnson deal is ‘not Brexit’.

This is factually wrong in the customs union and trade deals areas. Mr Farage also wrongly claims that the Johnson deal will see UK armed forces merged into an EU army. It now transpires that to support this campaign stump statement by Mr Farage, in error Brexit Party staff may have been using the text of the May deal, and Veterans for Britain’s criticisms of it.

Yes, it certainly used to be the case under the intolerable May deal, as Veterans for Britain correctly analysed and explained. What are we saying now? We are not saying there is no risk in the Johnson deal, as government ‘spinners’ would have us believe. Nor is Veterans for Britain saying, as the ‘spinners’ would have people believe, that we can safely dine à la carte with the EU Defence Union, especially in the defence industrial area. There is evidence of industry lobbying which would like that to be the case, but it must be rebuffed.

Pending further SIs modelled on the recent Cyber-Security SI, which will annul all the extant defence adhesions made since 2016, and pending a soundly drafted defence and security treaty (available now for Boris the Baker to pop straight into the oven in the Dearlove/Guthrie/Prins text), risks remain which are not negligible. But they can all be controlled and ultimately defused so long as we have a Johnson majority government committed to delivering a meaningful Brexit.

It is therefore welcome that Mr Farage has now stood down part of the threat to the Johnson majority. But it is not enough yet. The Conservative party ought to reciprocate and propose giving the Brexit Party a clear run in the Labour Leave seats where it is unambiguously the leading challenger and where the Conservatives would never win, while the Brexit Party ought to stand down in all marginal seats which otherwise the Conservatives might lose and all Labour Leave seats where the Conservatives are unambiguously the leading challenger? Surely this is not too much to ask of both parties in the national interest? Especially in view of what the relentless Remainers are doing on the other side?

The international view

On these two material risks to Five Eyes – in the WA and PD absent a majority government and protective Treaty, and in Corbyn – please do not just take my word, or even that of Sir Richard Dearlove, former Chief of the Secret Intelligence Service MI6, my research partner, who has observed how far from likely it is that Jeremy Corbyn would pass any security clearance. We are not alone in analysing and scoring these risks. Our Australian and American allies are also fully alive to them.

Late last year and again earlier this year, in May, I briefed on defence issues and Brexit to intelligence community insiders on Capitol Hill and in Washington. My presentation was based on the May deal. Andrea Thompson, Under-Secretary for Arms Control and International Security in the US government warned in no uncertain terms of the dangers of the UK touching the EDF or PESCO, which she described as ‘featuring restrictive language that would act as poison pills’. The following month Ellen Lord, the Pentagon procurement chief, also speaking of the EDF, asked whether ‘the Europeans understand the unintended consequences…of some of the language they have included in the documents’. And Kay Bailey Hutchison, the US Permanent Representative  to NATO said bluntly that ‘we do not want this to be a protectionist vehicle for the EU. If that becomes the case, then it could splinter the strong security alliance that we have.’

Despite the revised PD, this is still a live issue. Since May, some EU states like The Netherlands have been exploring ways for third parties to join in PESCO activities and in November 2019 the Finnish EU Presidency proposed outline ideas for just such entanglements. These developments underline the need for swift and smooth annulments of existing commitments made without democratic approval (indeed, in direct breach of a democratic mandate) and complete disengagement from the nascent EU Defence Union.

Conclusion

So the devil still dances merrily through the details of the WA and the PD – improved though they are. But despite this, it is wrong to say, as Nigel Farage has, that only a clean exit can protect our national security from a rampant EU Defence Union. He is of course correct that simply walking away would do that; but this is not politically realistic at the moment and in fact would leave the door open for future governments to sign us back in by some innocuous-sounding “administrative agreements” as suggested by François Fischer, head of intelligence analysis at the EU Intelligence and Situation Centre (EU IntCen). Be warned.

Recently, he said that “in intelligence and security, the UK won’t leave. Big secret, but you won’t leave…. it’s not yet for the public arena” but there are “capacities” allowing the UK to stay in the EU’s defence and intelligence network which are a set of “EEA commitments and administrative agreements… We will have problems” he continued, “practical problems and legal problems” but concludes that  “in France [there is] a saying that we are not a ‘limitation’ service: we are a special service because we are doing special things. And we don’t bother about legal limitations.”

Faced with an ambition to engage in this sort of fast and loose conduct, as well as for all the other reasons given in this article, the essential precondition to any acceptable Brexit is a majority Johnson government.

In the meantime we have standing material risks but also, in the precedent of the November 2019 Cyber-Security S.I. and in the draft Defence Treaty Text, viable means of mitigation immediately to hand.

Finally, I have no doubt that the patriotism of Brexit Party members across the country will ensure that they do the right thing and that they will stand down in any constituency where their presence on the ballot might risk splitting the Leave vote. There is too much at stake not to do so.

 

Advisory Board member, Briefings for Brexit; Academic Board member, Veterans for Britain

[This article is derived from a speech delivered to the Brexit Party MEPs at the European Parliament in  Strasbourg, 22 October 2019, with further and subsequent developments now taken into account]

The author wishes to acknowledge indispensable assistance from the anonymous civil servant “Caroline Bell” in the preparation and final editing of this article

[1] https://briefingsforbrexit.com/chequers-and-security-professor-gwythian-prins/; https://briefingsforbrexit.com/the-day-the-brexiteers-took-back-control-brexitourfutures/

https://briefingsforbrexit.com/a-very-english-coup-detat/; https://briefingsforbrexit.com/time-to-challenge-defence-civil-servants-over-brexit/https://briefingsforbrexit.com/tacking-the-ship-gwythian-prins/; https://briefingsforbrexit.com/escaping-from-hotel-california/

[2] https://lawyersforbritain.org/avoiding-the-trap-how-to-move-on-from-theresa-mays-withdrawal-agreement

[3] WA 129.6: “Following a decision of the Council falling under Chapter 2 of Title V TEU, the United Kingdom may make a formal declaration to the High Representative of the Union for Foreign Affairs and Security Policy, indicating that, for vital and stated reasons of national policy, in those exceptional cases it will not apply the decision.”

[4] See my article “Leaving Hotel California”, where I also published the verbatim transcript of the shocking ‘Kit Kat’ tapes which reveal British civil servants boasting of plans to hood-wink voters.

[5] https://briefingsforbrexit.com/treaty-between-the-uk-and-northern-ireland-and-the-european-union-for-defence/

 

About the author

Gwythian Prins