The Brexit transition inevitably raises a large number of technical and legalistic questions. But some of the biggest are turning out really to be political ones. A noted example has been the attempt to bar Liam Fox from discussing Britain’s future free trade agreements – let alone sign off a postdated draft. The most stultifyingly outrageous, though, is the proposition that the UK has to have left the EU before it can negotiate what future trade terms will look like. This really does test the assertion that “the EU is a rules-based organisation”.
Such phasing was obviously expedient for the European Commission, which sought to neutralise a high value card held by London. As a net donor, our net payments might be withheld at a point of outrage (the cheque gets sent in by the Treasury every fortnight, as Margaret Thatcher noticed). Yet enforcing this preliminary transition period has led to a muddle of expectations that are currently less Norway and more Neiflheim, and constitutes the single biggest dynamic hampering ministers seeking to (literally) deliver the goods.
Cecilia Malmstrom, the Trade Commissioner, declared back in 2016: “There are actually two negotiations. First you exit, and then you negotiate the new relationship, whatever that is.” But it was not until December 2017 that the Council of Ministers signed off the Commission’s presumption. It could just as easily rescind it.
The pretended legal basis for this methodology turns out to be as shaky as a palm tree in hurricane season. The Commission cites the standard trade negotiation elements within the Lisbon Treaty, pointing in effect to the self-raising absurdity of only the Commission being mandated to negotiate with itself. In reality, as Piet Eeckhout and Oliver Patel at UCL (amongst others) have observed, the Commission has adopted this position as it has chosen to apply Article 50 just to withdrawal and transition, but the clause itself legally allows an FTA to be negotiated before the UK leaves.
This procedure contradicts the original plan. When Article 50 was first drawn up, it was clear in discussions at the drafting convention for the European Constitution that the two year transition period was intended to cover reaching an end deal. It was no coincidence that the paragraphs were released at the same time as the draft Good Neighbour Clause, of which we presently hear too little. Basically, the Commission has been pulling a fast one.
The reality is that when it comes to high stakes issues, the Commission has a track record of pushing at the legal margins. A swerve here wouldn’t create any precedent. Let’s remind ourselves of a few occasions where the letter of the law in this “Rules Based Organisation” has been lacking the odd dot or crossed T;
The mantra of the EU being a “rules-based organisation” is no obstacle to the Commission setting to work on delivering the end treaty as we speak, rather than pursuing its current Mr Magoo adventure.
As it happens, the Council is now mapping out its own ideas for a Framework Agreement, and how the UK-EU treaty could look. The sketch is reportedly set to be finished in March, after which point the institutions will largely get distracted by the budget for a few months. But that should not be the end of matters. Once that concept is put on paper, work should move straight towards concluding an end deal that covers all “de-accession chapters” where there is clear agreement. The more contentious remainder could be pushed into a second round of negotiations, with the gap covered by a more limited transitional arrangement.
It is a lot easier to reach your objective by first determining your destination and then mapping the journey. Ever since listing an Irish border settlement as a prerequisite for talks, the Commission’s approach has instead been that negotiators ink the route without looking at the journey’s end.
The Commission has been pushing a high-risk policy of its own making. So it is beholden on everyone seeking to deliver a Brexit deal, whether in the UK or on the continent, to warn Berlaymont to extradigitate itself in the forthcoming Phase Two of talks. That lobby should include not only a number of well-placed members of the Lords who seemingly enjoy good relations with former colleagues in Brussels; but also our former Deputy Prime Minister, Nick Clegg – who last year claimied £114,982 allowances for official duties, and is clearly in sufficient stead to drop by the Rue de la Loi and call on Michel Barnier.