Andrew Duff -  On Governing Europe

Running Commentary VI

1. The waiting is almost over. On Tuesday 17 January Prime Minister Theresa May will deliver a speech in which she promises to spell out in more detail what her government wants out of leaving the European Union.

A few days later the UK Supreme Court will deliver its judgment on the appeal brought by the government against the ruling of the English High Court that makes the triggering of Article 50 subject to an act of parliament rather than an executive order. We are told that the government is ready with a short Bill to bring before both Houses of Parliament should it lose its appeal (as most lawyers presume it will).

2. Saturday 14 January saw the publication of the first report of the special committee of the House of Commons set up to monitor the process of Brexit. This committee, which is chaired by Labour’s Hilary Benn, has a slim majority of MPs who supported Remain in last June’s referendum campaign.

The report is respectable but not far-reaching, notable more for what it does not say than for what it does. It does not seek to pre-empt the verdict of the Supreme Court as to the invocation of Article 50. It does not admit that leaving the EU means leaving the single market. It does not identify a preferred landing zone for the UK post-Brexit. It does not go into the thorny issue of the jurisdiction of the European Court of Justice. It does not give a veto right to the three devolved administrations in Edinburgh, Belfast and Cardiff. It draws attention to the sensitivity of Northern Ireland, but not of Gibraltar. Its most controversial statement – adopted by 11 votes to 9 – is that a transitional period will be necessary to avoid an ‘extremely disruptive … cliff edge’ for business as it adapts to the new situation. It requests that:

“The Government must make clear from the outset that a period of adjustment to any change in trading arrangements or access to EU markets for UK service industries will be sought as part of the negotiations.” [para. 163]

This will please the prime minister. Less pleasing to her will be the committee’s request that a full white paper be published by mid-February containing the government’s ‘negotiating plan’ and clarifying its position on the single market and customs union. The Brexit minister David Davies has something less formal in mind.

The MPs take it for granted that the definition of the future relationship between the UK and EU 27 will be an integral part of the Article 50 withdrawal agreement, and they stress the importance of adopting a parallel approach in the negotiations between the technical and political aspects of Brexit. While they are right about the latter they may be mistaken about the former. In Brussels the assumption is that the words on the framework of the future relationship will find their way into the conclusions of a meeting of the European Council and not into the Brexit treaty itself. This way any argument about which procedures should govern the conclusion of the Article 50 agreement can be minimised.

The Commons’ report ends rather abruptly by leaping into the dark. Not content with their existing constitutional right to block the ratification of the final withdrawal agreement, the committee asks for the opportunity for wider consideration of the eventual outcome of Article 50 – that is, for a positive rather than a negative vote. This tactic may seem all very well now, but in two years’ time it might look less so. Remainer MPs will surely be put on the spot if obliged to vote, without amendment, on a treaty which takes Britain out of Europe. Likewise the House of Lords, where Brexiteering peers are only in a small minority.

The government’s small nominal majority in the Commons is almost irrelevant now: the Brexit issue supersedes all party controversy.

3. While Westminster ponders these matters, two Commonwealth prime ministers have made it clear that their first loyalties lie in cleaving closely to the European Union. Joseph Muscat, of Malta, has taken over the presidency of the General Affairs Council to which Michel Barnier, the Commission’s Brexit negotiator, will routinely report. He is insisting that the UK must get an ‘inferior deal’ to remaining a full member state. And Bill English, of New Zealand, will pursue a free trade deal with the EU before he turns his attention to trade with the old motherland.

Charming.

*****

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