The Brexit transition inevitably raises a large number of technical and legalistic questions. But some of the biggest are turning out really to be political ones. A noted example has been the attempt to bar Liam Fox from discussing Britain’s future free trade agreements – let alone sign off a postdated draft. The most stultifyingly outrageous, though, is the proposition that the UK has to have left the EU before it can negotiate what future trade terms will look like. This really does test the assertion that “the EU is a rules-based organisation”.
Such phasing was obviously expedient for the European Commission, which sought to neutralise a high value card held by London. As a net donor, our net payments might be withheld at a point of outrage (the cheque gets sent in by the Treasury every fortnight, as Margaret Thatcher noticed). Yet enforcing this preliminary transition period has led to a muddle of expectations that are currently less Norway and more Neiflheim, and constitutes the single biggest dynamic hampering ministers seeking to (literally) deliver the goods.
Cecilia Malmstrom, the Trade Commissioner, declared back in 2016: “There are actually two negotiations. First you exit, and then you negotiate the new relationship, whatever that is.” But it was not until December 2017 that the Council of Ministers signed off the Commission’s presumption. It could just as easily rescind it.
The pretended legal basis for this methodology turns out to be as shaky as a palm tree in hurricane season. The Commission cites the standard trade negotiation elements within the Lisbon Treaty, pointing in effect to the self-raising absurdity of only the Commission being mandated to negotiate with itself. In reality, as Piet Eeckhout and Oliver Patel at UCL (amongst others) have observed, the Commission has adopted this position as it has chosen to apply Article 50 just to withdrawal and transition, but the clause itself legally allows an FTA to be negotiated before the UK leaves.
This procedure contradicts the original plan. When Article 50 was first drawn up, it was clear in discussions at the drafting convention for the European Constitution that the two year transition period was intended to cover reaching an end deal. It was no coincidence that the paragraphs were released at the same time as the draft Good Neighbour Clause, of which we presently hear too little. Basically, the Commission has been pulling a fast one.
The reality is that when it comes to high stakes issues, the Commission has a track record of pushing at the legal margins. A swerve here wouldn’t create any precedent. Let’s remind ourselves of a few occasions where the letter of the law in this “Rules Based Organisation” has been lacking the odd dot or crossed T;
- Eurozone accession criteria. Countries seeking to join the Euro needed to hit the Maastricht targets over inflation, public debt, deficit, and exchange stability. Despite being quite generously set (and not in a good way), all of a sudden three digit debt was no longer an issue for candidate countries. This allowed Belgium to join. A side effect incidentally ironically meant that Commission staff stopped getting paid in notes that carried the image of two surrealists, an expressionist, a bankrupt inventor, and the Laeken greenhouse. But to get there required a mass of rule-bending shenanigans on a scale to fill a book – which is precisely where they did end up, thanks to whistleblower Bernard Connolly.
- Rubber Clauses. Articles 94, 95 and 308 of the Treaty establishing the European Community were introduced as catch-all clauses for expanding bits of the new Single Market that weren’t covered in the treaties. They are “rubber”, as they then got stretched.
- The Social Chapter. John Major’s travails in seeking to block this coming in under Health and Safety are a matter of note everywhere but his more recent newspaper articles.
- The European Parliament. The EEC’s parliamentary assembly was renamed by delegates themselves, rather than following the provision in the treaties (which took several years to catch up).
- The Disaster Clause. Eurozone bailouts infamously misapplied the Lisbon article intended for actual rather than metaphorical earthquakes. Paradoxically, some Remain campaigners have cited David Cameron’s legally-justified reaction to this as a reason behind him not being offered better terms during renegotiation.
- Renewable Energy Directive. Key parts of the Energy Union proposals over several years triggered objections about the lack of a proper legal basis. They did so again in December and January, when it came before MEPs.
- Security in Development. Notwithstanding its potential merits, the Stability and Peace Instrument has been challenged for being brought in under Development policy rather than the more restrictive CFSP model, where it naturally sits.
- Tax Sovereignty. The Republic of Ireland has been on the war path over its pursuit of Apple, claiming that the European Commission has grossly exceeded its powers.
- Italian Bank Bailouts. Critics challenge the legality of not one but three recently authorised bank bailouts by Rome. Der Spiegel has once again accused the Eurozone of ignoring its own rules.
- Migrant Relocation Scheme. Hungary and Slovakia, backed by Poland, challenged the 2015 quota system for sharing migrants (the UK had an opt out). The Luxembourg Court ruled that the agreed safeguards didn’t apply as the decision wasn’t a legislative one.
The mantra of the EU being a “rules-based organisation” is no obstacle to the Commission setting to work on delivering the end treaty as we speak, rather than pursuing its current Mr Magoo adventure.
As it happens, the Council is now mapping out its own ideas for a Framework Agreement, and how the UK-EU treaty could look. The sketch is reportedly set to be finished in March, after which point the institutions will largely get distracted by the budget for a few months. But that should not be the end of matters. Once that concept is put on paper, work should move straight towards concluding an end deal that covers all “de-accession chapters” where there is clear agreement. The more contentious remainder could be pushed into a second round of negotiations, with the gap covered by a more limited transitional arrangement.
It is a lot easier to reach your objective by first determining your destination and then mapping the journey. Ever since listing an Irish border settlement as a prerequisite for talks, the Commission’s approach has instead been that negotiators ink the route without looking at the journey’s end.
The Commission has been pushing a high-risk policy of its own making. So it is beholden on everyone seeking to deliver a Brexit deal, whether in the UK or on the continent, to warn Berlaymont to extradigitate itself in the forthcoming Phase Two of talks. That lobby should include not only a number of well-placed members of the Lords who seemingly enjoy good relations with former colleagues in Brussels; but also our former Deputy Prime Minister, Nick Clegg – who last year claimied £114,982 allowances for official duties, and is clearly in sufficient stead to drop by the Rue de la Loi and call on Michel Barnier.