Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
We are all prisoners of history: the approaches to the Brexit negotiations taken by the EU27 the UK are a case in point. The UK’s recent history of EU negotiations is one of last minute opt-outs, attempts to water down unpalatable proposals, or bills followed by the unpicking of careful compromises by the ECJ and European parliament. This history colours some of the reporting of the negotiations. It is a given by some commentators that we hold no cards; we have to accept what the EU27 decide; we are a supplicant. Thus EU proposals are written up as facts, UK proposals as “unrealistic” or “unacceptable”. In these circles to be “informed” is to be pro-EU – to comprehend the EU’s point of view, have chats with contacts in Berlin and understand the mind of the commissioner in question. While failing to realise that the EU institutions’ knowledge of UK politics was and remains somewhere between inadequate and fanciful.
The EU’s recent history of negotiations also colours its thinking and how it is reported by its retinue of journalists. José Manuel Barroso once said that he liked to compare the EU “to the organisation of empire”. Empires share a defining characteristic: a belief that their laws and courts are the only ones that count. When dealing with lesser states, the EU lays down its law. EU enlargement was a case in point. The EU sets the format for talks, sets the rules, insists on conformity and ticks off each chapter only once the supplicant has acquiesced. The EU has extended this approach to dealing with all its neighbours.
Though its EEA (The EU, Norway, Iceland and Lichtenstein), the EU imposes its law and the supremacy of the ECJ onto its neighbouring sovereign states. The EU’s Customs Agreement with Turkey also insists on full compliance with EU set product specifications under the ECJ. Whether it is negotiating the acquisition of neighbouring states fishing rights, partnership agreements with bordering states or dispensing development aid the EU bears the hallmarks of an empire. This approach has its limitations: the difficulty it has in negotiating trade agreements with large states that do not accept is laws is one.
The Brexit negotiations are, however ,a new kind of negotiation. The UK is not another inflexible Empire, but neither is it a supplicant. Time is short, and wasting time on proposals and approaches that are obviously unacceptable is unhelpful. So where are we so far on the negotiations?
EU citizens rights’
The Prime Minister rightly prioritised securing rights for both UK and EU citizens as an early aim. Her first attempts were unfortunately met with silence. While some clamoured to unilaterally grant rights to EU citizens in the UK and ignore UK citizens, the same questions were not put to the EU.
The EU has now made an offer on its own terms – ones that no self-respecting state could agree to. The rights of EU citizens living in the UK would be greater (in terms of bringing in dependants) than those of UK citizens and subject to the interpretation of a foreign court. The British in the nineteenth century set up a similar system for its citizens living in China under the so-called “unequal treaties”.
Some in the UK who have not yet thrown off their Stockholm syndrome view of our membership believe that we have no option but to accept. Fortunately, there are a number of other routes that do not involve the ECJ. There could be an arbitration panel, or both sides could unilaterally make an offer and trust that it is fulfilled. This issues is ultimately solvable.
Likewise, the ‘divorce payment’ demanded by the EU has been badly misunderstood by those in the UK. There may be no legal case to demand a payment at all; there may be a small payment for residual obligations – but whatever there is remains a matter for negotiation. The EU’s approach to money is conditioned by years of practice. You send a demand to a member state, and you get payment. First we saw a figure of £60 billion proposed by the Commission, this was upped to £100 billion.
But it is not a bill – it’s a negotiation. The Commission has come up with the largest possible figure it can, that’s understandable. This needs to be represented in the commentary.
Who determines the form of the negotiations? Is it parallel or sequential?
Linked to EU demands for payment is a demand to get a ‘divorce payment’ before committing to any future trade deal. This envisages so-called sequential deals rather than all issues being discussed in parallel as the UK originally proposed.
Again, the former have been reported in the UK as a given: rhe EU sets the rules and the UK accepts, however prejudicial. This is to misunderstand the nature of the negotiations. It is in both sides interests to agree a wider trade deal, and it is not in the UK’s interests to pay a penny if there isn’t one. It is clear that both these issues will have to be and will be negotiated concurrently, with any discussion of a divorce payment being conditional on a trade agreement and vice a versa. That is the nature of the negotiation. With the exception of citizenship rights, the traditional maxim of “nothing is agreed until all is agreed” holds.
This is the first time that a state has negotiated its exit from the EU, and it is clear that for both sides this is a new kind of negotiation. While still an EU member, this is not an internal EU negotiation in which the UK can be outgunned and outvoted: we are leaving that structure behind. Likewise, the UK is not a small neighbour happy to accept laws emanating from Brussels; we are not a small state desperate to join and receive payments. We are not landlocked by the EU, and we have just voted to leave.
This is a negotiation where both sides need to understand each other’s positions. While the UK has a history of dealing with the EU institutions and states, we can help the EU learn about our new interests. MPs can start by doing this in Parliament and sending a clear message. We have had a referendum and a general election in which voters have made clear we are leaving the EU, the Customs Union and the Single Market. If the EU indulges itself in listening to the fringe of MPs that have failed to get the message, it may cause delay but will not ultimately change anything.