Professor Michael Dougan on the Government's "implicit admission of Brexit failure"
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Professor Michael Dougan is Professor of European Law and Jean Monnet Chair in EU Law in the University of Liverpool Law School
The Prime Minister’s speech in Florence was widely billed as an attempt to break the apparent deadlock surrounding the ongoing UK-EU withdrawal negotiations.
In fact, the Florence speech was first and foremost an implicit admission of failure – the clear and abject failure of the Government’s core negotiating strategy – judged by nothing other than the Government’s very own terms, as set out in its very own White Paper from February 2017.
Thus, the Government concedes that the timing and sequence of negotiations lies entirely within the gift of the EU27: the UK does not hold all the cards after all. The PM admits that there is no prospect whatsoever of reaching a comprehensive package covering both withdrawal terms and future relationship, as the Government has consistently proposed, within the ludicrously short period of the next 12 months. And although the PM still employs the language of an “implementation period”, it is clear that this now means something very different from what was intended in the February White Paper: this is no longer about phasing in some deal we have already reached; it is about begging for more time while we try to prevent a disruptive and damaging exit for which we are singularly ill-prepared.
To that extent, the Florence speech should of course be welcomed: it marks a first attempt to recalibrate the Government’s negotiating strategy along more realistic lines.
The question is: just how successful was the PM in doing so? To help answer that question, we should comment on three key issues.
First: the mechanics of withdrawal which are currently the subject of negotiation in Brussels.
On the question of Northern Ireland, we can pass swiftly by: the Florence speech says nothing new and offers nothing new.
On the treatment of migrant citizens, however, there was an explicit attempt to break the current deadlock. But let’s remember that the PM spent nearly a year (before handing in our formal notification of withdrawal) claiming that she wanted to guarantee citizens’ rights, yet when the EU asked her to do just that, the UK responded with a proposal that fell far short of the EU’s own guarantee offer. Now the PM has said it again in Florence – she wants migrant citizens to carry on living their lives as before – but there is little concrete in this speech per se, that would serve to bridge the significant gaps which actually remain between the UK and EU positions.
Even the suggestion that UK courts should be able to take into account ECJ rulings, so as to help ensure the consistent interpretation of withdrawal agreement provisions concerning citizens’ rights which derive from EU law – a suggestion which has been hailed in some quarters as if it were some significant concession – goes little further (if at all) beyond the general principle of judicial interpretation which has already been suggested in the European Union (Withdrawal) Bill currently working its way through Parliament.
On the vexed question of the UK’s financial settlement: the speech does make some real progress, insofar as the PM explicitly promises that the UK will honour the commitments it undertook as a Member State and pay its fair share for future cooperation programmes. That should give some useful political impetus to the negotiations, which now need to agree a methodology for calculating the financial settlement, paving the way to reach some provisional sum, that can then be adjusted in light of the overall withdrawal agreement.
But even still, surely the PM needs to learn an important lesson which her predecessor failed to grasp until it was too late. The ideological Europhobes will never be satisfied. They are not interested in compromise. On the contrary, they are looking for any excuse to derail the entire process – and in the question of money, they believe they have found the perfect issue to stir up the sort of populist resentment they need to exploit as fuel for their own political ends. Hopefully, Florence indicates that the PM has some reserves of determination left to resist them.
So, to rephrase the PM’s speech: there has been some concrete progress on some of the important withdrawal issues under negotiation. But not too much. And as anyone who follows the two sides’ position papers, as they become publicly available, will already know: from contracts for the supply of nuclear materials, to the handling of pending applications for intellectual property protection, and questions about the storage and handling of personal data – the range of additional issues that still need to be discussed and settled is simply mind-boggling.
Secondly: the prospects for a new future relationship between the UK and the EU.
The PM was quite right to contradict some of the consistent propaganda used by many of the leading Leave campaigners to mislead and confuse UK citizens: e.g. the idea that membership of the European Economic Area can offer benefits without burdens (when, as the PM says, the reality is that it means taking most of the rules without enjoying any of the power); or the lie that the Single Market is no better than other international trade agreements (when, as the PM says, the reality is that even a relatively advanced trade deal like that between the EU and Canada is but a pale shadow of the Single Market itself).
Instead, the Florence speech reaffirms the Government’s aspiration that we want our own bespoke, unique and unprecedented relationship. Fair enough: wouldn’t anyone? The problem is that the Government has still given almost no palpable indication of what this would actually mean and how it might really operate.
On its face, the PM seeks explicitly to stamp out the Boris Johnston conceit-deceit that we can somehow have our cake and eat it. But upon closer inspection, this still feels like exactly what the UK is asking for. And not just in the Florence speech: the same is true for most of the “future partnership” papers published by the Government over the past several months. The basic message in each case feels the same: we are leaving, but the benefits of membership are so great that we do not want or cannot afford to lose them, so please can you (the EU) come up with some creative and innovative ways for us to leave, but still keep those benefits? Be warned: history will judge you harshly if you fail!
In other words: we want our cake, we want to eat it, but we want you to serve it to us – and we’re going to blame you when it runs out.
That is simply not a sustainable position. Not least since it also complicates the issue of transitional arrangements.
Third point: the PM’s proposal for an implementation period between the date of UK withdrawal and the birth of our new EU partnership.
As we said before: this is the Government’s way of admitting that the UK is simply not in a position to cope with the prospect of definitively leaving the EU in 2019 – neither in terms of our internal preparations nor in terms of our external relations (with the EU or the rest of the world).
To be clear: the UK is not asking for a prolongation of membership through the mechanism provided for under Article 50 TEU; the UK will cease to be a Member State in March 2019. Instead, the PM is suggesting that the withdrawal agreement, in addition to dealing with citizens and Ireland and finances etc, should provide for a post-withdrawal transitional period of around 2 years. But what precisely does the UK have in mind here?
For example: what would be the scope of the transitional arrangement? The PM mentions only trade and security. Was this meant to imply that any deal would not cover continued cooperation also in other fields, such as the environment or scientific research? Surely not: we can safely assume that the PM envisaged a much broader scope of continuation for EU law in relation to the UK – though with at least some important deviations from the status quo, such as the ability for the UK to undertake formal trade negotiations with other countries (specifically referenced in the Florence speech). But this issue awaits significant clarification.
Or again: what would be the basis for continued cooperation? The PM suggests that the EU’s current rules and regulations should provide the framework for her transitional period – which presumably means that the UK would also agree to amend its legislation to fit with any future changes to EU law during the transition. But as we all know: cooperation is not built merely on rules and regulations; it is also built on a complex network of institutions and processes – political, administrative and judicial – which make the whole system work in practice.
So: what governance and enforcement structures does the UK have in mind? The PM recognises there would be no more seat at the top table at the European Council, or in the Council, and no more MEPs in the European Parliament. But otherwise, the Florence speech gives little away, beyond suggesting that the role of the Court of Justice could be replaced with some new dispute settlement mechanism (albeit again of an undefined nature) sooner rather than later.
Moreover, knowing more precisely what the UK has in mind would only amount to the first step. The next question is: will the EU be prepared to accept the UK’s proposals, at a political level, bearing in mind the guidelines laid down by the EU27 in April 2017?
For example: although it is clear that the primary driver for a transitional period on the UK side is the dawning realisation within Government of the woeful state of their own withdrawal preparations, the EU27 guidelines make clear that the test for any transitional period begins with whether it would be in the Union’s own interests to have one – not ours.
Moreover, the European Council has indicated that a transitional period only makes sense if it is leading us from one state of being (EU membership) to a reasonably clear alternative destination (the future third country relationship). As we have seen, the UK has still not proposed an alternative destination at anything other than the very highest level of abstraction.
In addition, the EU27 guidelines state that any transitional agreement must involve a balance of rights and obligations, respect the integrity of the Single Market and, if based on a prolongation of Union law, incorporate the Union’s existing instruments and structures. That will focus attention on any UK demands to exempt itself from certain existing fields of cooperation or constraints on its freedom of action; and also raise sensitive questions (for example) about the continuing enforcement powers of the Commission and the full jurisdiction of the Court of Justice.
All of which leads onto a question of at least equal importance: will it be possible to square the UK’s proposals with the EU position, not just politically but also legally?
In principle, Article 50 TEU provides that the Treaties shall cease to apply to the UK upon its withdrawal. However, the Council has endorsed the view that Article 50 TEU gives the Union an exceptional power to negotiate the terms of withdrawal on behalf of the remaining Member States even as regards issues which would normally be seen as matters of shared Union-national competence. Yet even an
exceptional power cannot be unlimited. Any EU constitutional lawyer would expect the withdrawal agreement – transitional provisions included – to respect the fundamental principles and parameters laid down in the Treaties when it comes to defining the scope and limits of the Union’s own competences.
The task should be relatively easy in those situations where continued UK participation in EU measures would anyhow be available to third countries under primary or secondary Union law; or would anyhow be possible for the Union to offer a third country under its ordinary external relations powers. But otherwise – in situations where the UK is asking for special privileges that would not normally be open to any third country under the standard framework of Union law – the prospect of a transitional deal could push at the boundaries of the Article 50 competence and require clarification from the Court of Justice.
Conclusion
The PM’s speech represents a modest step towards the real world after over a year of living in a parallel universe. But whatever the PM’s claims in Florence, the underlying problems in the UK position remain the same: a deeply divided country, with a deeply divided government, as yet lacking any credible plan for dealing with the situation, with the Article 50 TEU clock continuing to tick.
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