Andrew Duff -  On Governing Europe

Running Commentary

Non-British readers may be a bit bemused by some of the press reports emerging on Brexit in the last few days. So to ease interpretation, here’s my take on the most notable of the latest events:-

1. Speaking at the LSE on Friday evening, John Kerr gave a valuable talk which is well reported on by Patrick Wintour in today’s Guardian.

Kerr warned about the impossibility of negotiating transitional arrangements without a clear agreement about Britain’s final destination. Everyone should be suspicious that any interim deal would become permanent, and that real Brexit would be forever postponed. Better, he said, to regard the process of withdrawal as a phased exercise – leaving the EU’s political institutions, for example, earlier than surrendering all rights and obligations under EU law (even if this means continuing for a period to respect the judicial authority of the European Court of Justice). Certainly the UK’s budgetary dues will persist until the final closure of accounts perhaps many years hence.

With regard to the UK’s final landing zone, Kerr agreed that the EU’s recent Ukraine Association Agreement offered the best template and precedent for the UK. Having been neglected by the government, the option of an association agreement is now being actively considered by the House of Lords EU Committee, expected to publish its report on the matter by 12 December.

Mark Carney’s remarks to the House of Commons Treasury Committee (15 November) on the importance of a fairly lengthy and smooth transition for the financial sector are finally being reported in the press.

Lord Kerr also suggested that the European Parliament might at the end of the day veto an Article 50 agreement. I do not share that view. Most MEPs will vote happily enough to conclude the Brexit trauma and say farewell to the UK. More likely than a vote against the UK leaving is that Parliament will ask the Court of Justice to verify the compatibility of the Brexit agreement with the EU treaties (under Article 218(11) TFEU).

2. Two further court cases have been launched against Brexit. Both are curious, and deserve little chance of success.

The first is by a number of British ‘ex-pats’ who are asking the European Court of Justice to strike down (under Article 264 TFEU) the decision of the President of the Commission not to talk to UK officials about Brexit prior to the official notification under Article 50 TEU. The complainants, however, will find it very difficult to establish before the Court (as they need to under Article 263) that they are directly and individually affected adversely by Mr Juncker’s direction to his staff.

As reported by the BBC, the second litigation is taken by British Influence, one of the assorted ‘pro-European’ lobbies which failed to make its mark in the referendum campaign. It argues that even if the UK exits the EU via Article 50 it will need a separate decision to exit the European Economic Area agreement. Strictly speaking, this may be true – but the item is already scheduled to be included in the Article 50 negotiations as one of the many international agreements to which the UK is party by virtue of its membership of the EU and from which, if Brexit means Brexit, it must be disentangled.

There is no chance that the UK can stay in the EEA by oversight: were it to opt post-Brexit to join the EEA it would first have to re-apply to join EFTA and conduct a full accession process (which would include getting the consent of suspicious Norway and Iceland).

3. The Polish prime minister Beata Szydlo comes to London today to talk to Theresa May. She writes in the Telegraph:

“We hope, as I believe the rest of the EU hopes, that Britain’s new relationship to the EU will be as close as possible, and based on the principles of proportionality and balance of rights and obligations. Whether we manage to complete this arduous task of bringing negotiations to a satisfying result will depend solely on our imagination and leadership. We need a good compromise.”

Expect more of the language of compromise out of other EU capitals as well as Brussels in the next few days. (Pierre Moscovici has already experimented with it on behalf of the Commission.)

But if the UK is seen to be picking off Poland as an ally for its Brexit negotiations expect that language to vanish. The far-right Polish government is nobody’s EU favourite nowadays – not least with ex-prime minister Donald Tusk, President of the European Council. As Tusk said, and meant (13 October), Brexit will be tough for the UK and has to be so if the risk of disintegration is not to spread across Europe.

If Mrs May does not move soon to dilute the very bad impression she gave in her recent hard-line speeches to the Tory party and CBI conferences, the fog over the Channel will only thicken and turn toxic.

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