The UK-EU relationship: Better the devil you know?

This is a version of a piece originally posted on Euronews.

This summer has provided ample demonstration of the difficulties of the relationship between the UK and the EU.

The constant rumbling of discontent over the Northern Ireland Protocol has been accompanied by periodic British threats to walk away from it. Last week’s State of the European Union address by Commission President Ursula von der Leyen neglected to mention the UK at all. And this week’s cancellation of talks on security cooperation with France comes hot on the heels of the AUKUS deal that tightens the links between the UK, US and Australia.

In short, there’s little sign on either side of the Channel that there is much appetite for trying to make the relationship work any better than its current semi-comatose state. Continue reading

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A post summer update

The past month or so has been relatively quiet in the world of the WA/TCA: the British proposals in its Command Paper had sat, largely uncommented, since late May as more prosaic matters have swirled.

However, as Brussels and Westminster have restarted, so too has there been a degree of movement.

Most importantly, there has been a further extension of grace periods, or more accurately a ‘standstill’ on the current operation of the Protocol. This was done by unilateral action of the UK, with the EU ‘taking note‘, but reserving the right to block an unlimited time period for this.

The aim of the standstill has been to open up some more space for discussions about Protocol operation, but it’s not very explicit about which grace periods are extended, since there are some that are directly linked to the Protocol (most obviously chilled meats) and others that are more indirect (relating to UK imposition of checks on incoming goods under WTO commitments). Until I’m on top of what’s what I’m not updating my graphics (here and here respectively), but I will ASAP.

We also now have more economic data on the impact of Brexit on the flow of goods. While there was a lot of media coverage in early 2021 of this, it was evident that there had been a lot of distortion from traders stockpiling ahead of Christmas, then holding off moving goods in the New Year to avoid the immediate teething problems.

However, we now have data through to the middle of the year, which shows some clear impacts and diversion of trade, relative to other trading partners, for both the EU and UK. The picture painted is of much correction after the end of transition, but some emerging signs of more structural barriers, notably in the slow recovery of EU exports to the UK.

Finally, I’ve been spending most of this week with the good people of UACES, at the annual conference. The excellent presentations and discussions have given me an opportunity to update/enrich some graphics and to confirm the content of others.

A case in point is the operation of the Protocol’s Article 16, on safeguards. Billy Mel Araujo’s analysis has been added in down, and points to an additional factor that I had missed, namely that the threshold for triggering this is rather low. This matters because even if it doesn’t do what a lot of British politicians seem to think it does, that might not stop its use, with all the attendant problems that come with that.

I will also note in passing that I am very honoured to be the new Chair of UACES, and I’d like to give my wholehearted thanks to Nick Startin, who’s been excellent in that role during three rather tough years.

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Legal options for changing the Northern Ireland Protocol

As a parting gift before a summer break, I’ve pulled together the various legal pathways currently available to changing the Protocol.

This is based on the text of the Protocol/Withdrawal Agreement itself, plus a bit of customary international law, and covers both modification and disapplication of the Protocol itself.

As the graphic suggests, there are three main paths.

First, amendment is possible through two routes. One is a minor corrections option within the Joint Committee, although these can’t change the basics of the text, so it’s not really an amendment procedure of any consequence (certainly in the current political climate). The other is a generic treaty amendment, concluded by mutual agreement of the parties.

Second, the Protocol allows for new EU-UK agreements to supersede all or part of the Protocol, with the only proviso that such supersession needs to be spelled out, presumably so that whatever remains of the Protocol has clear limits for its application. This is a remnant of the original backstop model negotiated by Theresa May, where the Protocol would only kick in if the future relationship (i.e. the TCA) didn’t cover certain criteria. However, it still requires the agreement of the EU too.

So the only unilateral pathway for UK changes to the Protocol is the Consent provision of Art.18, which allows the Northern Ireland Assembly to vote (from 2024) to disapply Arts.5-10 of the Protocol (i.e. the main economic elements).

While some have seen the current arguments about the Protocol as laying the groundwork for such a vote after next year’s Assembly elections, as an ‘escape’ from the Protocol, it’s essential to read all of Art.18.

In particular, non-Consent does not end any other obligation of the parties, especially (and pointedly) the Good Friday Agreement (Art.18(4)). As such, both the UK and EU would be bound by the same set of constraints that produced the Protocol in the first place.

This is all really just to underline that while the Protocol is undoubtedly problematic, it is also the product of intense negotiation and calculation by both sides that this is the least-worst option available. As I noted in a thread late last week, treaty-making comes with obligations and there is no path open to the UK to change that basic fact.

Whether that means the Protocol will stick is a very different question and one that we’ll have to come back to in September. Until then, have a good summer and do let me know if you have any requests on graphics, as I’m always happy to help where I can.

 

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tl;dr – The UK’s Command Paper on the Northern Ireland Protocol

The publication on 21 July of the UK government’s Command Paper came just before the end of the Parliamentary session. Flagged for several weeks, it was presented as the culmination of a long push to secure changes to the Northern Ireland Protocol.

Undoubtedly, the Paper does cap the numerous public statements of Lord Frost, Brandon Lewis, Boris Johnson and others in government, not least in saying that a root-and-branch reformulation of the entire text is needed, rather than some tweaking at the edges.

But it is another aspect of culmination that is more striking: the lack of credibility behind the proposals advanced.

Put briefly, the UK’s position appears to be one of “we didn’t mean to sign the Protocol, so let’s change it”, an approach that has no grounds in either international law or basic political common sense.

The international law aspect is something I’ve covered already, but to recap the basics: if you freely sign a treaty, you’re bound to stick to it, unless there’s some very fundamental change of circumstances. And no, disliking it isn’t enough.

The political angle is one that’s not too complex to unpack either.

In any potential negotiation, you need to know what your best alternative to a negotiated agreement (or BATNA, for acronym fans) is. As long as you can get a better outcome by negotiating than by not negotiating, then you should negotiate and agree.

Note that this is purely relative: the negotiated outcome might be poor, but it just needs to be less poor than not agreeing. And so it is for Brexit.

The EU might not like the Protocol much, but it was better than any other option on the table, or walking away from the table altogether.

As such, the UK’s proposal to renegotiate the Protocol needs to be a clear improvement on the status quo.

And yet, the Command Paper barely deals with the EU’s needs (beyond Single Market integrity), which means the case has not been made to even start on this, so the Commission’s rejection of renegotiation is less than surprising.

Since the UK knows all this, the question has to be why bother pursuing a route that isn’t going to lead anywhere good? Playing with invocations of Article 16 (which isn’t what the UK government thinks it is, but that’s a different point) can only result in numerous legal and trade retaliations from the EU, and a big telling-off by the US, only to leave the UK with the original problem still in place, so it’s not really going to work.

As with so much of the Brexit process, this isn’t really about the external aspect, but the internal one. The deep allergy of Number 10 to signing up to anything that gives a formal role to the EU in UK affairs is driven by the pressures of backbenchers, regardless of the views of public opinion, businesses or anyone else.

Indeed, the most telling sentence in the entire Command Paper is from para 14:

Nevertheless, the revised Protocol delivered the fundamental requirement of enabling the UK as a whole to leave the EU in a genuine and meaningful way

British policy is thus about what mustn’t happen, rather than what must; a strategy that has failed repeatedly since 2016.

The hope is still, clearly, that someone will come up with a cunning wheeze to square the numerous circles, so all that’s needed – and fortunately all that’s possible – is to keep things from settling into any kind of regularity, so that no one gets too comfortable.

I’ve set out some further thoughts on the Command Paper in this thread, but the key is that this isn’t any kind of unblocking process, but rather a holding pattern:

As a bit of a side-note, I’ll also mention that the DUP made various positive noises about the proposals in the Command Paper, largely because they talk to the same people.

The DUP’s seven tests from last week did highlight the problems of the current Protocol, but also of all the other options out there. Those that do meet the DUP’s requirements don’t work for either the EU or Number 10.

This suggests that we are still a very long way from any kind of stable equilibrium on Northern Ireland.

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Financial Settlement News

Perhaps the most striking thing about the breaking of the story about the unexpectedly large size of the UK’s financial liabilities under the Withdrawal Agreement last week was that it generated so little attention.

The consolidated EU accounts for 2020 were published on 9 July, but it took a ‘tip-off‘ to RTE to get them checking the text. Number 10 said it ‘didn’t recognise the figure’, but then that was it.

So little for something that had been flagged in 2016 as one of the hardest issues to crack in the then-upcoming negotiations.

In practice, finances were dealt with relatively early and relatively simply: the WA set out (Arts.135-148) the rules for deciding what was and wasn’t included, plus a schedule for payments.

But no figures. Precisely to avoid getting anyone’s backs up. And because until the money’s spent, no-one actually knew how much it would be.

Which didn’t stop the UK trying to work out the bill.

The graphic below sets out those estimates, as well as highlighting the huge potential for misjudging totals. The Commons Library briefing on all this is excellent as a guide.

The short answer to the mismatch between the UK estimates and the Commission’s first calculation (which is unlikely to move much) is that both the basic calculations on contributions and RAL were shifted by Covid and the associated economic slump, which also affected valuations of other assets and liabilities.

Number 10 might not have recognised the total, but they also haven’t gone hard on rebutting it, which suggests this is one fight that they are not going to push on.

UPDATE: The UK government’s report on the 2020 budget reiterates the March OBR estimate, but doesn’t challenge the more recent Commission valuation.

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Meetings and the TCA/WA

One aspect of the WA/TCA pairing that will generally never get much attention is the meeting roster.

Both treaties provide not only for a coordinating body – the Joint Committee (WA) and the Partnership Council (TCA) – but also a raft of more specialised bodies, roughly one for each section of each treaty.

These bodies are intended to provide a space for discussion between the parties, and a ratification of jointly-agreed decisions. The specialised bodies deal with their particular reams, then it goes up to the central body for approval.

In most part, the work of all of these is dull. If there are no major issues, then they essentially operate to provide regular confirmations of this; if there are major issues, then the more senior officials and politicians get stuck in and try to find solutions in an ad-hoc manner.

But this doesn’t mean they’re not important. On the contrary, their documentation provides as good a public paper trail as is available to most interested parties, while the simple rhythm of their meeting tells you something about their value.

In the two graphics below, you can already some of this.

The WA committees have had longer to bed in, but the centrality of the Northern Ireland Protocol is clear, with Citizens’ Rights rather less behind than might have been evident: with the end of the UK’s window for registering for Settled Status, that Specialised Committee is likely to gain further in prominence.

By contrast, the TCA bodies have been much slower to get moving, in part because of the delay to full ratification until May, in part because the urgent issues have been with the WA and in part because everyone’s still working through a lot of what the TCA actually means in practice. Note that one of the WA committees didn’t first meet until 9 months into that treaty’s entry into force.

I’ll be updating these graphics regularly, with PDF versions that let you click through to Commission reports on each meeting uploaded to the bit.ly links below.

PDF: https://bit.ly/UshGraphic85

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Further grace periods

The past week has seen two important grace periods extended.

These periods have been used in both the TCA and WA to allow the UK and EU enough time to make necessary preparations for full implementation, or that is at least the EU’s line.

The less-remarked of the two has been the granting of data adequacy to the UK’s rules for a four-year period to 28 June 2025, meaning that data can continue to move freely across the border. However, this has come with an unprecedented sunset clause and explicit powers to revoke it should the UK change those rules, which currently remain much as they were during membership.

As such, the discussion about reforming the UK’s regime might well end up bringing adequacy back to the table sooner rather than later.

The more-remarked was yesterday’s confirmation of a three-month extension to the chilled meat products exemption for Northern Ireland (UK declaration and EU response). This is problematic in different ways from data, in that the issue has been a failure by the UK to make conspicuous movement towards full implementation and the concern that this extension might be a prelude to an effort to get a semi-permanent delay to that occurring.

As a result, the EU’s comments on conditions and expectations are worth noting.

In a sense, both cases highlight the difficult road that this relationship is following. The degrading of trust during and following negotiations leads the EU to be very attentive to compliance, even as it makes efforts to avoid looking too inflexible. In that regard, the bundling of the chilled meats extension with other work on flexibility on the Protocol is as important, even if still most promissory.

For the UK, the almost permanently aggravating behaviour of the fist half of 2021 has soften a bit. The decision to ask for the chilled meat extension, rather than just announcing one, counts as a win here. Likewise, the signing of a bilateral agreement with Germany on security points to other paths for showing good faith is possible.

However, this path will be a very long one. There are clear issues with all the remaining grace periods, plus the negotiations and reviews, in the coming six months, not least the operationalising of the new format for fisheries quotas to be completed by New Year.

And that’s not even getting into the end of the application period for EU nationals to acquire Settled Status in the UK and the scope for removals.

One swallow doesn’t make a summer, as they say.

 

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Five years of (some of) Brexit

For me, it was the morning after that I remember most vividly.

An early train to London left me wandering into Parliament Square at too-early-o’clock to hunt down the Radio5Live tent on College Green, to sit with Adrian Chiles for a few hours while he interviewed some of the many passing politicians about the result of the referendum.

I remember it a bit because Adrian was very generous in sharing his biscuits, but much more because of what I saw unfolding around me.

Almost to a person, everyone looked as if there had been an explosion and they were now staggering through the dust, trying to work out what had happened. Leavers as much as Remainers carried a look of those who weren’t entirely sure what whether this was real or not, a figment of their fevered imaginations.

And more than this.

There was a vague sense in the air that if this was so, then what else might be possible? For a while, everything seemed uncertain, nothing was fixed. As a good Gen Xer, I was put in mind of Ice Magic: the hard shell of our political institutions being lifted off to reveal a rapidly-melting polity.

No, I hadn’t slept much.

Throughout the 24th, I kept coming back to this strange place, simultaneously fearing that no-one else knew what came next and hoping that no-one did, that they might come up with something calamitous.

But no one did. Just a trail of resignations, of sheepish press conferences, of hours, then days, of drift. Very soon it became clear that no one had really, truly, properly prepared for this.

And this has been the leitmotif of the past five years: an aftermath, a picking up of the pieces, with no sense of whether to whip out the superglue or to stick the mess in the bin.

Ultimately, the referendum was a decision without a rationale or a reason. That’s not wrong – unlike some, I’m not hear to call out the quality of the debate beforehand – but it is problematic.

Whatever relationship the UK wants with the EU, it will not be secured in the way that it has been pursued since 2016. The British approach has been driven by what is not wanted, rather than by any coherent sense of what should be, and why it should be so.

My hope in 2013 had been that Cameron’s offer of an in-out referendum might trigger a careful national discussion about such things, although I’ll profess to being dubious it would happen until that offer came good.

My hope in 2015, after the general election, was that now would be the time.

My hope in 2016, after the referendum, was that this was now essential, ahead of any negotiations.

And my hope now, after all my previous hopes have been dashed, is that one positive consequence of the tortured process we’ve undergone is that the case of trying to build an inclusive project for the UK is now easier to make.

Maybe I’m too optimistic on that front, but I do know that I’ll keep on trying to help people make sense of the issues and the options, so that we can work towards a new, stable and resilient relationship with the EU.

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Citizens’ rights under the Withdrawal Agreement

Citizens’ rights has been a rather strange part of the Brexit process, in that it has never occupied a very prominent place in the negotiations or discussions, even though it contains huge potential for disruption and problems.

Whereas the financial obligations was seen as a big haggle, and the Irish dimension as complex, citizens’ rights was treated in large part as a matter of recognising the situation of the other parties’ nationals on your territory and leaving it pretty much at that.

Of course, there was more to it than that, not least in the past year when travel restrictions left many living somewhere other than their normal residence, causing complication to the various schemes used by different states.

This matters as we are closing in fast on the first set of deadlines for people to confirm their status: the Withdrawal Agreement provides for people to remain where they were pre-UK withdrawal, but in many states (including the UK) there has to be an active process of acquiring confirmation that it applies.

As the graphic below shows, this stems from a choice open to all signatories as to how they wanted to go about this. The constitutive approach needs that active process, while declaratory model is more flexible (although in some cases deadlines still apply).

These deadlines matter because the lists they produce will be a baseline for accessing the rights contained within the Withdrawal Agreement. As has been seen in both the UK and the EU, the lack of need to hold such official registrations beforehand has led to very significant undercounting by preliminary estimates, with the risk that tens of thousands of individuals might find themselves without a legal residence status.

This summary captures the key points for the UK scheme. Important to note is the issues that arise for anyone not meeting the deadline (even if you ultimately secure settled status) and extent to which Home Office officials will have discretion on cases.

As someone who’s had to help guide a close family member through the British process, I can attest to it being less than simple for anyone not currently in regular employment, so if you know anyone still to do it, then make sure they get going on it now: the link is here.

Even with the best will, there will be many pieces of litigation around this topic, especially should any state start to remove nationals because of non-compliance with these registration schemes. I strongly recommend following Steve Peers on this, for his excellent analysis (gateway page here). The UK in a Changing Europe also have just issued this new report/guide that’s well worth your time.

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Pathways for the Northern Ireland Protocol

With the first meeting of the TCA’s Partnership Council finally done, alongside the WA’s Joint Committee, it’s perhaps a good time to reflect a bit on the Northern Ireland Protocol.

While this sits within the Withdrawal Agreement, it’s worth noting that sanctions for non-compliance can extend to any other agreement between the EU and UK, so the TCA’s remit of trading relations is still in the mix.

It’s undeniable that the Protocol has been the locus of many of the difficulties between the two sides, and that it represents a problematic compromise for them both. The question is therefore what to do about it?

In the most generic sense, there is a clear range of options, depending on whether you want to work within the Protocol or want to escape it.

If the EU has leant towards the ‘leaning in’ options, then the UK has gone the other way, as evidenced by its failure to demonstrably work towards making the Protocol operational (most recently with chilled meats and the Great Sausage War of the morning of 7 June 2021 [sic]).

The issue for the UK is that any path it follows it problematic at some level (and usually several levels), so much hangs on how Number 10 views the relative importance of each aspect, especially given that inaction is likely to become ever less viable as a way out.

I’ve covered dispute settlement elsewhere, but there is an additional level of addressing issues within the Protcol, the infamous Art.16. This provides for temporary measures to deal with serious difficulties, albeit in a way that doesn’t seem to have been properly internalised by either side just yet.

And if you’d like another take on the basic tensions in resolving Northern Ireland’s situation, I refer you back to one of my earliest graphics, from June 2017:

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