September 6, 2017
As we can see, the Article 50 negotiations are in a good deal of trouble. At this rate there is no chance that the European Council will construe that the necessary sufficient progress has been made to allow it to pass on to the second, and more interesting phase of the Brexit talks.
I have written a long piece for the European Policy Centre that analyses the state of play and suggests some ways forward.
No governance means no deal
The main obstacle to reaching agreement on citizens’ rights is the lack of agreement (or even discussion) of governance. In other words, how will any Article 50 secession treaty be applied in the UK? The EU does not trust the UK to legislate properly to protect the interests of EU citizens living in Britain or to administer a new system fairly. The UK is not prepared to accept the jurisdiction of the European Court of Justice post-Brexit.
Some think the EFTA court supplies a model to follow. It doesn’t. For one thing, the British government has said, quite rightly, that it will not join EFTA and the EEA. Continued membership of the customs union and participation in the single market will mark the transitional period after Brexit, but EFTA-EEA membership is not required for this. And the transition will only last until a new association agreement, with a deep and comprehensive free trade pact at its core, can be negotiated.
To manage Brexit and prepare for what is to come, I argue for the creation of a new joint EU-UK court to settle the disputes that a joint EU-UK authority cannot resolve politically or technically. Such a joint tribunal must have access to the European Court of Justice and commit to follow that court’s case law as closely as possible. Both sides will need to compromise to reach this goal.
The EU will have to stop treating the UK like an errant third country, and the UK must drop its hostility to the ECJ.
Make an offer. Turn a blind eye.
The Article 50 talks have also stumbled over the financial settlement and Northern Ireland. On the first, the UK has simply got to make an offer of a sum of money that matches roughly its existing commitments to the EU budget. It will be around €60bn, spread over a number of years. So get on with it.
As to Ireland, the EU 26 will have to be persuaded to turn something of a blind eye to what will be the EU’s most porous external frontier. Neither the Irish nor British governments have the political will or the administrative capacity to tighten border controls. Best to recognise this uniquely sensitive situation — and move on.
And ask for transition.
Theresa May threatens another of her speeches on Europe, strangely timed before the Conservative party conference on 1-4 October. The single thing she has to do in the speech is to ask the EU for a transition agreement: nobody from London has yet done that, to the mystification of Brussels. She should also spell out to her party (and possibly herself) that her hoped for “deep and special partnership” involves the negotiation of a formal EU association agreement.
If she does this, she has a chance to be taken seriously at the European Council on 19 October. It is her last chance.
Britain is already slipping off the European radar. In the German election TV debate between Angela Merkel and Martin Schulz on 3 September, Brexit was not mentioned once.
The Westminster parliament might succeed in wrecking the government’s mammoth and controversial EU (Withdrawal) Bill. They might even wreck the Tory cabinet. But MPs and peers will not be able to stop the EU upping sticks and leaving the UK behind in eighteen months time. Despite the squealing, the British parliament supported the referendum in the first place, endorsed its outcome and voted for the triggering of Article 50. As they sow, so shall they reap.