Britain and Europe

Associate or dissociate: it’s make your mind up time

29 December 2017

With the clock ticking, the time has come for the British government to move past vague overtures and present a clear proposal for Britain's future relationship with the EU.

Andrew Duff

Consider for a moment how different Brexit looks from Brussels and London. From the vantage point of the EU capital, and all things considered, the secession process is going rather well. On its first (and hopefully last) outing, article 50 is proving to be a robust provision. Working faithfully to the original guidelines of the European council, the commission is conducting the negotiations well; cohesion among the 27 member states is impressive; and the European parliament is on board.[1] The smooth implementation of article 50 looks set to enable the United Kingdom to withdraw from the European Union in a reasonably ordered fashion at midnight on 29 March 2019.

The Brexit tale looks very different from London. Prime Minister May has stumbled to the end of a year in which she has lost confidence at home and abroad. Her Brexit team is dishevelled and her government is in tatters. The constitution of the Kingdom is cracking under the stress. Parliament at Westminster is fractious. Public opinion is badly divided. And the economy is shrinking.

The December decisions

Nevertheless, on 8 December, after a week of some drama, the UK government and the commission managed to agree on a joint progress report to send to the European council.[2] On 15 December the heads of government duly judged that, according to its own guidelines, ‘sufficient progress’ had been made in the prolonged first phase of the talks to allow the second phase to proceed.[3]

Work will continue on the unfinished business of phase one of the article 50 process until agreement is reached in the form of a ‘Davis proof’ draft legal text. The main items concern citizens’ rights and the financial settlement, but there are other ongoing legal commitments and commercial undertakings that also remain to be settled.[4] On governance there is little progress.

The road map for the continuing article 50 process in 2018 is laid down entirely by the EU. Despite the bluff and bluster of David Davis and his Brexiteering cronies, London has no option but to accept the schedule and agenda presented by Brussels if the much-feared ‘cliff edge, no deal’ is to be avoided. Mrs May appears to have accepted this state of affairs, although the far right in her party are unlikely to do so.

Open revolt by arch-Brexiteers will create opportunities for other forces at Westminster to play a more important role. While some in Labour and the Lib Dems argue forcibly that Brexit should be stopped in its tracks, it is increasingly clear that the revocation of article 50 by some hypothetical non-Tory government would not result in a return to the status quo ante in Brussels.[5] The EU 27 would be bound in those circumstances to propose tough political, financial and legal conditions on a prodigal UK seeking to return as a full member state.

Nor is it the case that the EU could offer the UK a second bite at the article 50 cherry were Westminster to reject the draft secession treaty: what is agreed in 2018 between David Davis and Michel Barnier will not be subject to renegotiation. I can find nobody in the EU institutions or the 27 capitals who would tolerate yet another unilateral attempt by Britain to renegotiate the terms of its relationship with Europe. Those MPs who think their victory in the Grieve amendment can lead them to a somehow softer Brexit than that achieved by Mrs May should be especially careful what they wish for.[6] As things stand, if there is no article 50 treaty for the European parliament to vote on in early 2019, the UK will fall off the cliff at the ordained Brexit hour.

In any case, the evidence suggests that there is still a large cross-party majority of MPs and peers resigned or otherwise committed to delivering an orderly Brexit. Most politicians from all the parties which promoted David Cameron’s folly of a referendum on EU membership seem now to accept a responsibility to see the result of that referendum respected. They should work together to ensure that Brexit does the least harm to the British economy and to conserve, to the maximum possible extent, EU norms in terms of social, consumer and environmental standards and human rights.

The transition

On 15 December, the European council agreed that talks can now start on arranging a transition period of two years. In January, the council will hand down new directives to the commission for the negotiation of the transitional measures. Already, on 20 December, the commission published a draft of these directives.[7] On this basis, the transition arrangements, which will be written into the article 50 withdrawal agreement, will be tough. The UK will have to conform in full to the whole EU acquis (internal market, customs union, and common commercial policy), take on board all legislative developments and continue to observe the authority of the European court of justice. The EU’s numerous international agreements will no longer apply automatically to the UK and their replication will be subject to the EU’s discretion. If Mrs May carries her cabinet to accept these terms and conditions, British relations with the EU will continue more or less as they are now throughout the transition – except that, after 29 March 2019, British representatives will no longer inhabit the EU’s institutions or agencies and will play no further part in EU governance.

The UK government has had to agree to introduce at Westminster yet another important piece of primary legislation. This is the withdrawal agreement and implementation bill, whose purpose will be to re-introduce on a temporary basis the writ of the famous European Communities Act 1972 that the infamous European Union (withdrawal) bill will just have annulled on a permanent basis.

Long-term governance

Top of the EU’s concerns is the need to guarantee the thorough implementation of the withdrawal agreement, including the transitional period. The EU’s initial position on governance was explained in a commission position paper (13 July), which spells out how the article 50 secession treaty will establish institutional arrangements for its management, implementation and enforcement, plus dispute settlement mechanisms.[8] The commission insists that the application of the secession treaty must respect the autonomy of the EU legal order and the unique role of the court of justice in interpreting EU law. Disputes will be settled exclusively by the mechanisms prescribed in the treaty.

Preliminary discussions have exposed significance divergences, particularly about the future role of the court of justice. The UK’s initial position, spelt out in a paper on 23 August, was to assert that both the withdrawal agreement and the final partnership could be enforced quite happily in the UK by the British courts acting alone.[9] The fine reputation of Britain’s judiciary should be enough to guarantee that EU citizens have nothing much to worry about. The government admitted that a new dispute resolution mechanism, as befits the deep and special partnership, will be needed for disputes arising between the UK and the EU – but not for the application of agreements within either the UK or EU jurisdictions.

The first British effort on governance was poorly received in Brussels. Theresa May’s more emollient speech in Florence (22 September) was in part a recognition that the EU’s criticism was justified.[10] And while it is frustrating that the UK has still offered no comprehensive, substantive reaction to the EU’s governance proposals, Mrs May’s concessions on 8 December are a further step in the right direction.

As far as citizens’ rights are concerned, it has been agreed that British courts will continue to pay due regard to EU law and the jurisprudence of the Court. The UK government will continue to enjoy the same procedural rights at the court (absent the presence of a British judge). These arrangements will continue for eight years after Brexit. A new ‘independent national authority’ will be created in the UK to oversee citizens’ rights. The scope, functions and remedies available to this new body will be agreed in the course of 2018. The commission thinks it essential that the body has the power to sue the government in court for infringement of the secession treaty in the manner of the European Free Trade Association (EFTA) surveillance authority, under the European economic area (EEA) agreement with respect to Norway, Iceland and Liechtenstein.

Transitional governance

The commission has suggested that the transition arrangements can include a joint EU-UK transition authority (‘joint committee’) to cope with difficulties, both foreseen and unforeseen, in ensuring the good functioning of the agreement. The new body could also ‘perform any other task conferred on it by the withdrawal agreement’. It would be up to the joint committee to attempt to resolve disputes before they get to the point of litigation. But, because London has not reacted positively to this offer, the commission has seen fit to downplay British involvement in the governance of the transition in its draft directives of 20 December. The UK “could be invited to attend, without voting rights, meetings … where the discussion concerns individual acts to be addressed to the UK or to UK natural or legal persons; or where the presence of the UK is necessary from a Union perspective for the effective implementation of the acquis during the transition period”. Precise conditions for ‘such exceptional attendance’ will be written into the secession treaty. In reaction to Michael Gove’s threat to close off British waters to French fishermen on Brexit day, ‘specific procedural arrangements’ will be made for fish quotas during the transition period.

Parliament at Westminster should pay particular attention to the rules for the governance of the transition period, and to its length. The British government would be wise to try to accept and boost the role of the joint committee in overseeing the protection of EU citizens’ rights in Britain and of the ongoing treatment of British nationals in the EU. The joint body should co-ordinate the withdrawal of the EU’s regulatory framework with substitute, homegrown British regulators in order to avoid legal and regulatory gaps. And it could set up a system to help the general public with enquiries about the operation of the withdrawal agreement.

A key demand of the UK must be to build into the secession treaty a provision that allows for the extension of the transition period beyond the initial two years. The commission, being the commission, wants the transition to end neatly with the close of the current multi-annual financial programme of the Union on 31 December 2020. For the British this schedule seems too short and tidy, but they will have to accept that any European council decision to extend the transition must adhere to the spirit of article 50, namely that it could only be taken at the request of the UK government by unanimity and with the consent of the European parliament. Any such extension will be renewable but not indefinite, and clearly time-limited until the final partnership deal between the EU and the UK comes into force. It would also come at a proportionate financial cost to the UK.

Precedence suggests that any formal association agreement between the EU and the UK will be enabled to enter into force on a provisional basis while the inevitably lengthy process of national ratification is carried out in 27 member states. Some governance arrangements of the final package could be introduced for trial during such an extended transition period, and such an extension could even be called the ‘introductory phase’ of the final agreement.[11] During this second transitional stage it should be permissible for the UK to progress, if not to conclude, its longed-for international trade negotiations.

Framework for the future relationship

The article 50 withdrawal agreement needs to take into account the framework of the future relationship between the UK and EU. The outline of that relationship, therefore, has to be drafted in the next few weeks. The EU waits for the British to make a sincere proposal to that effect. Until now Brussels has had to infer what it can from a few rather sketchy and clunky speeches by Theresa May.

Responding to Mrs May’s Lancaster House speech of 17 January and her letter triggering article 50 of 29 March, the European council said it ‘welcomes and shares the UK’s desire to establish a close partnership’ after Brexit. Its guidelines of 29 April went on to establish terms and conditions – namely, that ‘any free trade agreement should be balanced, ambitious and wide-ranging’ while falling short of single market membership. The new agreement ‘must ensure a level playing field, notably in terms of competition and state aid’, and include safeguards against unfair competitive practices through tax, social, environmental and regulatory measures. The future framework must ensure the EU’s financial stability and respect its regulatory and supervisory regime, including ‘appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures’. The EU ‘stands ready to establish partnerships’ in matters of internal and external security.

These basic positions were confirmed by the European council on 15 December. The heads of government also reaffirmed their willingness to have a future ‘close partnership’ with the UK. This is not quite Mrs May’s ‘deep and special partnership’. Nevertheless, the European council is ready to start ‘preliminary and preparatory discussions with the aim of identifying an overall understanding of the framework for the future relationship’ after its next meeting in March. For sound legal and political reasons, this understanding ‘should be elaborated in a political declaration accompanying and referred to in the withdrawal agreement’. It is envisaged that this declaration will be agreed at the European council meeting on 18-19 October.

Both sides are taking a risk as they approach the drafting of this critical declaration. Agreed by the European council and taken note of in the article 50 treaty, the document will have legal effect. Michel Barnier, in that way he has, calls for the declaration to be clear and unambiguous: but there is an equally respectable argument for taking a less peremptory approach. The declaration has to set out objectives and commitments that are sufficiently detailed in order to define effectively the contours of the future relationship; yet it also has not to pre-empt the negotiation of the final deal itself, thereby provoking the opposition of the European parliament or any one of the 27 national parliaments.[12]

On 15 December, the European council called ‘on the United Kingdom to provide further clarity on its position on the framework for the future relationship’. Indeed. To date, debate in Britain about options for the future continues to be lamentably vague and ill-informed. Nobody in London has dared either to ask or answer detailed questions about the nature of a new association agreement with the EU. Amazingly, the Conservative cabinet seemed only to have had its first strategic discussion on the future of Britain in Europe on 19 December. By all accounts it was as tense as it was indecisive. Labour’s position remains abstruse. The Lib Dems want a second referendum without telling us what on.

All parties treat the institutional implications of the future partnership as a taboo subject. This is an unfortunate oversight. For in the absence of a clear British prospectus for the future of their country in Europe, the EU commission and council tend to fall back on orthodox formulae, leaving them no option but to treat the UK just like any other third country.

Neither Norway nor Canada

As the British government and parliament struggles to come to a settled view about the kind of association it wants with its erstwhile EU partners, it is clear that options are limited: none are simple; all have implications for relations with third countries; and all will involve the UK in ongoing institutional and budgetary relations with the EU. However, if the options for Britain are not limitless, they are not binary either.

Michel Barnier is fond of saying that the UK cannot have the rights of Norway with only the obligations of Canada. The truth is that the UK will end up with a different set of rights and obligations to both Norway and Canada. These will be written down in an association treaty whose legal base as far as the EU is concerned is article 217 TFEU (Treaty on the Functioning of the European Union). The core of the new association will be a comprehensive rules-based trade and investment partnership, including new customs arrangements, in the form of a free trade agreement, whose purpose will be to limit economic self-harm for the UK and minimise collateral damage to the EU economy. Under the over-arching association agreement, there will be a security and defence treaty and arrangements for intergovernmental collaboration in police and internal security matters.

Over the next weeks it may be hoped that the disadvantages of a Comprehensive Economic and Trade Agreement (CETA) of the kind recently struck by Canada will become self-evident. CETA is a minimalistic deal on trade in goods and almost nothing on services. The UK seeks much higher access to the internal market than Canada. For the UK, CETA would mean a sharp decline in commerce with its largest trading partner, a disruption of industrial supply chains and impaired mobility of labour.

The UK has ruled out the Norway model, involving membership of EFTA and the EEA, on the grounds that it would involve the free movement of people, would require conformity with the EU’s trade policies and would be seen at home as an abject failure to ‘take back control’ from Brussels. Norway and Iceland could also be expected to object to the British muscling in on a carefully calibrated agreement which works well for them. And the European Union agrees that, given the circumstances, the UK cannot join the EEA. The EU also refuses to contemplate for Britain the kind of messy and unstable deal that it now has to tolerate with Switzerland. Nonetheless, any association agreement Britain strikes with the EU will contain several elements drawn from the Swiss and Norwegian experiences. But it has to be a larger, closer and more dynamic relationship.

Without succumbing to braggadocio, the British government knows that the UK is the EU’s largest export market in terms of both goods and labour. The City of London is the place where the EU does most of its financial services, having access to an unrivalled pool of liquidity. And the UK is the EU’s top performer in terms of science R&D (research and development). This relationship will change a bit, even a lot, as the effects of Brexit shrink the size and change the shape of the British economy. But geographical contiguity will not change. And it would be counter-productive for the EU 27 to wilfully erect tariff and non-tariff barriers to British trade unless there were good reasons to do so, such as social dumping, unfair tax competition, massive counterfeiting and a deliberate flight in Britain away from the EU’s regulatory standards.

This message is well understood by at least some of Mrs May’s beleaguered ministers. The recent industrial strategy issued from the Department for Business, Energy and Industrial Strategy declared:

“The process of leaving the European Union inevitably entails some uncertainty as negotiations take place to determine our future economic relationship. We want to have a continuing deep partnership with the EU that will not disrupt supply chains or impose barriers to our largest trading partner. We will not just respect the rights of European citizens living here; we will develop an approach through which European citizens can continue to come here to work and contribute to our economy. The UK and all of Europe benefit from our partnerships in research. We want that collaboration to continue on major science, research and technology initiatives. We are leaving the EU, but we are not leaving Europe.”[13]

Regulatory alignment

So while the EU’s chief negotiator Mr Barnier is undoubtedly right to question whether the UK wishes to remain adherent to the ‘European model’, the EU would be mad not to do its best to retain the UK as a satellite country within its own regulatory orbit. It is also very much in the EU’s interests to keep the UK contributing to certain of its common policy programmes such as Horizon 2020 and participating in some of its bodies, even as an observer member, such as the European Research Council and Europol. For mutual benefit, the more the UK and EU can align their regulations, the more trade can be done across the Channel in each direction. The level of Britain’s access to the EU single market will depend entirely on the degree to which it can maintain regulatory convergence on the acquis.

So how is regulatory divergence – theoretically the whole point of Brexit – to be managed in practice?

A key element in reaching such a rules-based trade and investment partnership between the UK and the EU is the erection of new apparatus in the British state on which business and the EU authorities will be able to rely to ensure compliance with the terms of the new association agreement.[14] Domestic British regulators will be needed to substitute for the role of the European commission and its agencies in the surveillance of regulatory equivalence and compliance enforcement. In some cases, such UK equivalents exist and will be able to perform their new functions once they are accorded an increase in powers and resources. In other cases, as with citizens’ rights, wholly new regulatory authorities will have to be created from scratch.

In all cases, however, the key issue as far as the EU is concerned will be the relative independence of the British regulatory framework from political control. Unless British regulators can take the UK government to court for failure to act to apply correctly the terms of the new EU agreement, the necessary equivalence will not be ascertained. And without guaranteed autonomy of the British regulatory framework, the UK will not be readmitted to partial membership or observer status of the important EU agencies in critical areas such as medicines, food safety, environmental policy, nuclear industry and aviation safety. The commission will need to make it clear to the UK government that the conclusion of a new association agreement is a prerequisite for British participation in the EU agencies.

The Irish question

Nowhere is the issue of a rules-based partnership more relevant or important than on the island of Ireland. The UK’s decision to leave the EU’s customs union and single market means the return of a north-south border. But for political and constitutional reasons it is a border that cannot be heavily policed. The EU side in the article 50 talks has laboured long to find practicable solutions that will minimise the risk of a very porous external border of the Union.

While the politics remain fraught, Northern Ireland and Ireland are strongly integrated in social and economic terms – integration which runs deeper than that which normally results from joint membership of the EU single market. In some cases, such as that of the wholesale electricity market, there are UK-Irish co-regulators, and many public services, including health, education, strategic transport and emergency services are supplied and run jointly on a cross-border basis. Both the London and Dublin governments agree in principle that this joint activity should not change, but they cannot ignore entirely the consequences of Brexit. In normal circumstances the commission, backed up by the European court of justice, would penalise the Dublin government for failing to levy the appropriate VAT and excise duties, to check rules of origin or to supervise the health and safety standards of goods entering its jurisdiction from Belfast. A generous dispensation can be given to micro-traders below the customs radar, but such latitude will be merrily exploited by smugglers too. The moment the first chlorinated chicken struts its stuff across the Ulster border, the EU will have to bring the shutters down.

As part of the 8 December package, the UK has agreed to protect the Good Friday agreement and to avoid a hard border. It hopes to attain sufficient regulatory alignment with the EU (as part of the new partnership) so as to make this possible.

“Should this not be possible, the UK will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the UK will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”[15]

It is not in the interests of the Dublin government that a hard border between Ireland and Great Britain (its largest trading partner) be imposed to compensate for a soft border with Northern Ireland. Northern Ireland is not going to leave the UK’s customs union. So unless London is contemplating a very different and harder border for Kent than it is for Ulster, the UK is already committing itself to much closer regulatory convergence with the acquis (including the EU’s common external tariff) than the Brexiteers realise. ‘Full alignment’ with Ireland, in other words, implies full alignment with France.

Ireland’s taoiseach, Leo Varadkar, subscribes to the European council decision of 15 December in the hope that the terms of the provisional agreement with the British can be embedded in a comprehensive EU association agreement. So the stakes are high.

The Ukraine association agreement

In 2014 the EU signed an association agreement with Ukraine. That treaty provides the most useful template for the design of an association agreement with the UK.[16] At its heart is a deep and comprehensive free trade area for goods, along with a customs agreement. But Ukraine is not a party to the EU’s customs union, common commercial policy or external tariff regime. Ukraine has to respect three of the four principles of freedom of movement, but not the fourth, for people. Mutual recognition of services and mobility of labour is subject to sectoral negotiation. At first, Ukraine’s participation in the EU’s internal market is necessarily limited and subject to strict conditions, but it is encouraged to grow incrementally, step by step, as the Ukraine conforms to EU standards and trustworthy governance develops. The first real fruits of the association agreement were seen in October 2017 when an EU regulation lowered tariffs on several industrial goods and widened access to Ukraine’s farm exports.

The Ukraine association agreement also includes chapters on collaboration in the field of foreign policy, security and defence, and another on co-operation in fighting international organised crime and terrorism.

In terms of institutions, there is an EU-Ukraine annual summit meeting, a regular association council at ministerial level, and various technical committees whose job is to approximate Ukrainian law with the EU acquis. The association council supervises and monitors the application of the agreement and takes binding decisions to settle disputes or to update and amend the lengthy regulatory annexes. A joint parliamentary committee comprises MEPs and members of the Rada (the Ukrainian parliament). A joint civil society platform is run on the EU side by the economic and social committee.

In the case of serious disputes, an arbitration panel is established of three persons – one from the EU, one from Ukraine plus a neutral chair from a third country. The arbitration panel must refer questions of interpretation of EU law to the European court of justice for a binding ruling.[17]

A British association agreement

The EU’s association agreement with Ukraine is an interesting, recent, legal precedent. Although the political analogy between Ukraine and Britain should not be pressed too far, the EU is in want of good and efficient neighbourly relations with both countries. Whereas the aim of the Ukrainian deal is to encourage convergence on the EU acquis and to enhance political co-operation, the purpose of a British deal will be to manage divergence from full accordance with the acquis and to maintain effective political co-operation.

The current deep integration of the British and EU economies means that in terms of institutions the UK’s agreement with the EU will have to be much more capable than is the case with Ukraine. As we noted earlier, the UK has to erect a new regulatory apparatus that can interact effectively with the EU system across the whole spectrum of relations of trade, science, standards, and data protection. In particular, the City of London, which will retain some financial institutions of systemic importance to the EU, will need to connect closely with the EU’s banking union. Ironically, it may be only once they have left the EU that the British come to understand the closeness of their relationship with it.

It is clearly in the mutual interest that systematic collaboration continues between the UK and the EU in policing, criminal and civil justice matters. Foreign policy, security and defence co-operation will be imperative. Norway has side agreements with the EU on security and defence matters, including participation in the European Defence Agency and in certain CSDP (common security and defence policy) missions. According to Theresa May, the UK wants a much stronger security partnership with the EU 27 than Norway.

But across the gamut of UK-EU relations the questions of governance will be of paramount importance. The Prime Minister has a duty to set out her proposals for new institutions that will rebuild the trust that has been lost between London and Brussels as a result of Brexit. Confidence-building measures can be built into the arrangements for the transition period. For example, the envisaged joint committee, having delivered its transitional function, could easily morph into becoming the general secretariat of the new association agreement.

Although the association agreement will need robust joint EU-UK institutions at ministerial, technical, and parliamentary levels, it is the judicial tribunal that is the more tricky to design. The European court of justice will have to lose its antipathy to sharing its jurisdiction with a privileged partner state through the mechanism of a joint court. In 1991 the Court rejected the idea of a joint court for the European economic area, and obliged the EFTA countries to form their own sister (and largely subservient) court.[18] The EFTA court may trigger a reference to the court of justice for a binding decision.[19] But the UK is not seeking to join the EEA. Brexit is unique and demands unorthodox measures. The quantity and complexity of litigation post-Brexit is likely to be demanding. A joint UK-EU court is the most efficient way of dealing with this. The court of justice can well enough protect its own prerogatives and the autonomy of the EU legal order from any adventurism on behalf of the UK supreme court by keeping a majority of EU judges on the joint court.

The inescapable truth is that Britain and Europe are destined to remain deeply intertwined after Brexit. As the European parliament proposes, a formal association agreement is the only way to entrench this.[20] The European council will respond to and elaborate such an association proposal in March as long as the UK sends appropriately clear signals that it deserves to be treated as the Union’s most privileged partner and not like any other third country. It is in the Union’s interests to help this stricken British government to find its bearings and, in so doing, shape a future partnership that is robust, durable and mutually beneficial.

One of those moments

Whether they like it or not, in 2018 the British are up against one of those rare moments in history when what is decided by government and parliament matters a lot, possibly for a long time. The strategic decision taken on Europe might well split the ruling Conservative party, and even Labour. Brexit poses a big challenge to the cohesion and direction of the European Union itself: how it chooses to treat its erstwhile member will shape its own future. Labour and the centre left of British politics, including the Scottish nationalists, are not innocent bystanders in this drama. They share responsibility for many years of dysfunctional relationship between the UK and the EU, and almost all those now dubbed ‘Remoaners’ were in fact complicit in the Tories’ botched referendum.

An association agreement is the least bad choice.[21] It would minimise the shock of Brexit. It would help British business and investors, facilitating greater regulatory alignment and widening access to the EU’s internal market. A bid for an association agreement caters for the reality, recognised in the December decisions, that the more convergence there is the softer the Irish border can be. An association agreement with the EU is more likely to heal the divisions within British society than either a hard Brexit or the blocking of Brexit altogether. An association agreement is the frame inside which the UK can rebuild trust and political co-operation with its European neighbours.

Such a special partnership requires the consent of the EU 27. London should not underestimate the extent to which a pitch for an association agreement requires concessions to be made in Brussels and other capitals. Negotiation of a new pact with Britain will test the cohesion of the 27 in a way that the divorce process has not. Phase two will see France, Spain and Ireland begin to assert their own vested interests. Cack-handed British efforts to befriend Poland and Hungary will backfire. Little will be possible without a concerted British effort to regain credibility with all its European neighbours.

The priority this New Year is for British politicians from all parties to show they can be trusted to negotiate a fair deal for their country abroad – and to deliver it at home. Decisions are needed now: later will be too late.



[1] European council guidelines, 29 April: http://www.consilium.europa.eu/en/press/press-releases/2017/04/29/euco-brexit-guidelines/#.

[2] The joint report is found here: https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf. This was supplemented by the commission’s own more detailed report to the council: https://ec.europa.eu/commission/sites/beta-political/files/1_en_act_communication.pdf.

[3] European council guidelines, 15 December: http://www.consilium.europa.eu//media/32236/15-euco-art50-guidelines-en.pdf.

[4] The up-to-date technical note on citizens’ rights is found here: https://ec.europa.eu/commission/sites/beta-political/files/citizens_rights_-_comparison_table.pdf.

[5] Notably Roger Liddle, Seizing the Argument, Policy Network Paper, December 2017.

[6] The amendment tabled by Dominic Grieve provides that Brexit must be subject to an act of parliament rather than a mere ‘meaningful vote’.

[7] https://ec.europa.eu/commission/publications/commissions-recommendation-including-supplementary-negotiating-directives_en.

[8] https://ec.europa.eu/commission/sites/beta-political/files/essential-principles-governance_en_0.pdf.

[9] https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper.

[10] https://www.gov.uk/government/speeches/pms-florence-speech-a-new-era-of-cooperation-and-partnership-between-the-uk-and-the-eu.

[11] This nomenclature would go some way towards meeting Mrs May who already, if inexplicably, insists on calling the transition an ‘implementation’ period without specifying what it is she thinks she is implementing.

[12] If the secession treaty were deemed to have become a ‘mixed agreement’ because of future commitments made, the decision-making process of the Union would change from QMV (qualified majority voting) in the council to unanimity – inevitably necessitating ratification by all member states.

[13] UK government white paper, Industrial Strategy: building a Britain fit for the future, 27 November 2017.

[14] See my speech to the Centre on Regulation in Europe (CERRE), 22 November 2017: http://www.cerre.eu/news/speech-former-mep-andrew-duff-cerre-executive-seminar-%E2%80%98brexit-energy-and-climate, https://www.scer.scot/database/ident-4058.

[15] Paragraph 49 of the joint report to the European council.

[16] Official Journal L 161, 29-05-2014.

[17] Article 322 of the EU-Ukraine association agreement.

[18] Opinion 1/91.

[19] Protocol 34 of the EEA Agreement.

[20] European parliament resolution on Brexit, 13 December 2017, P8_TA(2017)0490.

[21] For support for this view, see the Institute for Government, Trade after Brexit: Options for the UK’s relationship with the EU, December 2017.


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