December 20, 2016
1. While British ministers continue to give confusing signals about what the government wants out of Brexit — presumably by mistake, given their disavowal of ‘running commentary’ — there appears to be a toughening up of the EU’s negotiating stance.
In Brussels, Michel Barnier speaks of nothing other than the three formal stages of Brexit: the withdrawal agreement, the transition and the final settlement. No formal talks have taken place between London and Brussels, and informal contacts are precious few.
The summit meeting of the EU 27 on 15 December was short and to the point. It reiterated the position adopted on 29 June in the immediate aftermath of the referendum, including the rather alarming assertion that “access to the Single Market requires acceptance of all four freedoms”. “Access”, mind, not “membership”: I repeat this at the risk of boring regular readers for the sole benefit of HM Government and the BBC, neither of which appear to have cottoned on.
The EU 27 leaders set out the procedures they will follow. They confirmed the Commission’s role in the negotiations, and endorsed Barnier as chief negotiator. But they intend to continue to keep a close grip on things themselves, issuing and amending guidelines and directives to the Commission, monitoring progress and maintaining a permanent presence at the negotiating table.
2. The European Parliament will take part in preparing the Brexit meetings of the European Council and will be continually informed and consulted by Commission and Council. The formulation of the summit does not please Parliament’s Brexit frontman Guy Verhofstadt, but be in no doubt that he will assert his presence and the will of Parliament throughout the process.
MEPs have begin to draft a resolution which will set out their red lines and their claims on the Article 50 negotiations. They have the power to give consent to the final withdrawal agreement (Article 50(2)) and cannot be ignored. It would be counter-intuitive for the European Parliament to obstruct Brexit, but it may well wish to assert its right to confirm with the European Court of Justice that the draft agreement is in conformity with the EU treaties (Article 218(11) TFEU).
3. During the period before Prime Minister May invokes Article 50, by way of an amuse-bouche, Verhofstadt could well start speaking directly to representatives of the UK’s several parliaments.
He would find very creditable interlocutors in the House of Lords, whose EU committee has just published the first six of over twenty reports on Brexit. The Lords’ reports are lucid and thorough, and paint a vivid picture of how complex Brexit is for both sides of the negotiation. I have written a fairly lengthy critique of their work so far, posted here by the Federal Trust.
What the Lords put across very well is that British life is so deeply entwined with the dynamics of the European Union that Brexit is like jumping off a moving train. Despite the surge of nationalism which secured the referendum victory for the Leavers, it is those British who operate daily in EU affairs who will bear the brunt of Brexit. We may marvel that the Lords’ excellent example of parliamentary scrutiny was not conducted before rather than after 23 June.
4. A less fruitful encounter would be had with the Scottish executive. In Nicola Sturgeon’s rather long-winded white paper on why Scotland should remain in the single market, one has to search hard for the hidden clue as to HOW this feat would be accomplished unless Scotland becomes an independent state. In para. 138 on p. 32 one finds the clue: post-Brexit UK would join EFTA and the EEA and then disapply the EEA to England, Wales and Northern Ireland — leaving Scotland high and dry. It’s a fun wheeze, but a bit barmy, actually.
5. As a sign of how tough the Brexit negotiations are going to be in any case, take a look at the decision of the European Council in reaction to the Danish referendum decision to leave Europol. Its disapproval drips. New arrangements are put in place for partial operational cooperation that are “not in any way equal to full membership”. Denmark is firmly excluded from Europol decision-making. There will be limited exchange of data, subject to adequate safeguards. Brexiteers need to be aware of how much they will lose if the UK also quits Europol. Danish criminals may rejoice.