Bernard Jenkin is Chair of PACAC (Public Administration and Constitutional Affairs Select Committee) and Member of Parliament for Harwich and North Essex. He writes in a personal capacity.
My day today will be like so many other days since the EU referendum in June last year. I will spend a great deal of time listening to what MPs and others are saying about how we leave the EU, and making sure that necessary conversations with government take place, so that nobody is surprised by what is decided, or feels cut off, or that their concerns have been ignored. So it was during the run-up to the agreement in Brussels last week.
Apart from the significance and scale of importance of the Prime Minister’s discussions in Brussels last week, there was nothing much that was unusual about them. There was lots of briefing and counter-briefing; leaks and misunderstandings. There was the usual brinkmanship and last-minute chaos. But a text was agreed in the end. This is normal for dealing with the EU. Expect much more of the same over the next 15 months. One of the reasons the EU as an institution has lost its moral authority across the whole of the EU is that people are fed up with this – a kind of bullying that has gradually made the EU Commission the arrogant, overbearing, secretive and unaccountable body it is today. But we are leaving.
Still, just imagine what it was like to be the UK Prime Minister in that lunch in Brussels! She coolly left the table refusing to agree, having fully expected to be able to do so. This is not the action of a weak or fragile person, or of someone who is not prepared to leverage the best for the UK out of her delicate majority in the Commons.
And a great deal has been said about what this new text means. There is a lot of disagreement.
Now, I was always rather scornful of Ken Clarke’s blasé admission that he never bothered to read the Maastricht Treaty before it was signed – but let’s face it, we always rather admire his chutzpah. I do not claim the same kind of mantle, but I confess I did not wreck my whole weekend trying to understand every nuance of this obscure text. The meaning of the word “alignment” is interesting, and there are legitimate concerns about the role of the EU Court after we leave. All this needs to be understood, but this text is just a gateway to the real discussions about what Article 50 calls the “the framework for its [our] future relationship with the Union” (i.e: including the all-important issue so trade). As Article 50 suggests, the EU has been in breach of its own treaty by refusing to discuss this, as they have tried to strong-arm us into other concessions. The Prime Minister’s conciliatory approach has paid off. If the EU wants a deal they have to talk trade. And last week demonstrated that the EU wants a deal.
The people who need to study this text are the lawyers, and there is plenty of reason to check that the government lawyers have been giving sound legal advice to ministers. Too often, it has been wrong. Subsidiarity in the Maastricht Treaty was meant to see powers flowing back to member states. They never did. Tony Blair was told the EU Charter of Fundamental Rights in the Lisbon Treaty was no more significant than the Beano. How wrong he was! And just before the EU referendum, David Cameron had been told that he could assure us that his reform agreement would be “binding in international law” on the EU, when the EU Court is known always for putting its own laws and the EU treaties above any international agreement.
The fact is that there will be no hard border between Northern Ireland and the Republic of Ireland under any circumstances, unless the Republic of Ireland or the EU insist upon one. A modern border between two such friendly countries can be policed sufficiently away from the frontier, without infrastructure at the frontier, as Bertie Ahern, the former Irish Prime Minister, has said. This was always a synthetic row to try to raise the pressure on the UK.
And as for what “alignment” means? Every free trade deal starts with each party insisting that the other must bring their regulation (ie. non-tariff barriers) into line with their own. This is the stuff of free trade negotiations. And as the Prime Minister keeps saying, nothing is agreed until everything is agreed.