The sun goes down in Retained EU Law, sort of

Posted on 15th December 2023 by admin

Christmas is, of course, the most Brexit-y time of year.

Who can forget such classic moments as reading treaties under the tinsel in 2019 and 2020, or pondering the no-confidence vote in 2018 over a glass of eggnog?

Obviously keen to keep up the tradition after a couple of fallow years, this time we get to look again at Retained EU Law (REUL), as the sunset clause of the REUL Act comes into effect as Big Ben chimes the New Year.

For those who’ve missed this so far, you can read more here (and here, and here). But the salient points are as follows:

  • As a member state of long-standing, the UK used the 1973 EC Act to apply many pieces of EU legislation and other decision-making as part of law within the UK;
  • Once the UK left, it was observed that: a) all this EU law shouldn’t apply any more, but that b) it has become very embedded within British legal frameworks;
  • The Hard Brexit factions pushed on this (on point a), more precisely), eventually securing the Government’s pursuit of a Retained EU Law Bill that initially declared all the REUL would fall void at the end of this calendar year;
  • Much pushback ensued, not least because it turned out no one knew how much REUL there actually was or what it all did, so sunsetting it would cause many more problems than it solved;
  • Ultimately the Government conceded the point, moving instead to a schedule in the REUL Act, specifying what would sunset and leaving the rest to continuing efforts to remove or amend it to better fit British interests.

The schedule lists 587 items. Of those, only 553 can be located on the Government’s REUL Dashboard, which is the central repository of REUL listing and work. The rest appear to be almost entirely made up of highly specific notices, but with no indication of why they only appear in the Act. Which rather underlines the point about the lack of a definitive list.

However, this quibble aside, it is now possible to project what the overall effect of the sunset at the end of December will be.

The lion’s share of sunsets come from DEFRA (319), followed by DfT and DESNZ (both 65). Notably, both the Treasury and DBT come in with low single digit sunsets, despite their relatively high volumes of REUL.

DEFRA seems to have had a lot of fisheries agreements and habitat regulations to chuck on the pile, with DESNZ bringing emission trading items and DfT numerous agreements on recognising training of non-EU seafarers.

In short, much of this list is not highly salient or current in content, but rather a clearing out of the legislative roll. Which is fine, but arguably not what Brexit was meant to secure.

Moreover, despite bringing us close to 1000 pieces of repealed REUL overall, this still leaves over 2,600 items that remain unchanged. As the chart below shows, the progress since withdrawal on 31 January 2020 has been stately rather than rapid, with approximately one-third of identified items undergoing some change.

That picture does however need to be set against that issue already mentioned: the uncertainty about the list. Which has grown from an initial 2417 items in mid-2022 to 5020 today.

The entire exercise continues to raise serious issues.

Firstly, the lack of records that are either exhaustive or consistent makes the switch to a defined list in the REUL Act schedule seem ever more prudent: the uncertainty about what REUL actually exists remains substantial, in turn making any system of blanket sunsetting run the risk of producing numerous unintended consequences.

Secondly, the uneven distribution across Departments of items in that schedule also suggests that any attempt to treat REUL as a homogenous lump is deeply unhelpful. Clearly, there are areas were repeal or sunset is quick and simple, while in other fields the items remain deeply consequential and/or entangled in wider regulatory frameworks. To work to an agenda of simply saying REUL is all ‘bad’ (or ‘good’ for that matter) isn’t very helpful.

Thirdly, we might note that Parliament has been largely excluded from this process: this is very much an Executive-led and -controlled initiative. Which comes back to questions of quite who it is that is taking back control in Brexit.

Finally, while the focus has been on the reform of REUL, it’s ever more important to remember that there is still a material interest in some form of regulatory alignment with the EU. Partly that’s down to Level Playing Field requirements in the TCA, but mostly it’s a function of proximity and the convergence that came from being a long-standing member state: if the UK values trading with its nearest large market then avoiding needless imposition of additional effective barriers to trade needs to be part of the calculations being made.

We’ll return to REUL during the coming years, but in the meantime you can find my datasheets here, including some more charts and the current raw dataset from the Dashboard site.

 

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Is sovereignty democracy?

Posted on 7th December 2023 by admin

Your land is my land

I’ve been turned over this question for some weeks now, mainly because it has kept on popping up in different places. And because I fundamentally disagree.

Last month, I heard the line ‘sovereignty is democracy’ fall from the lips of Bill Cash, speaking on a panel about Parliamentary scrutiny of European business.

I had hoped he might bring his vast experience of such matters to bear on a more technical level, but instead we got some extemporising on why scrutiny during British membership of the EU was fundamentally flawed, because the legislation being considered was out of Parliament’s hands. By leaving, the UK had regained control [his sense, if not his words] and any of the manifest problems with current scrutiny arrangements was ultimately acceptable because it was our sovereign choice so to be.

And more recently, the same line has been thrown around in the Tory debate on migration. Consider Suella Braverman’s resignation statement this week:

All of this comes down to a simple question: who governs Britain? Where does ultimate authority for the UK lie? Is it with the British people and their elected representatives, or is it in the vague, shifting and unaccountable concept of international law?

Both Cash and Braverman were speaking in particular contexts, but the sentiment is one that carries general import, both in the party and more widely. After all, Braverman’s question isn’t so unreasonable as first glance: why shouldn’t we get to decide things for ourselves?

To address this, we might consider three aspects that seem relevant.

Firstly, most things don’t affect discrete groups of people separated along sovereign lines.

The entire international system of trade is – by definition – an interaction of states, setting rules not simply for their optimal preference, but also in relation to rules set by others. To take a pertinent example, this week’s swerve on car batteries by the EU reflects a situation on the ground whereby ideals about one priority have had to flex to accommodate practical realities. Just because I want free trade, I can’t impose that on other states by virtue of my sovereignty. Indeed, the quid pro quo of claiming ultimate decision-making authority over my territory is that I respect your ultimate decision-making authority over your territory.

Which makes it harder to deal with things that affect everyone – like climate change – or things that we hold to be universal – like human rights. Yes, we can work to find agreements among sovereign bodies, but with no scope to do anything if one or more of those bodies refuses to play ball. For fighting climate change that might weaken responses, but for human rights that might mean people dying. Are we really comfortable with that?

Secondly, there’s arguably nothing above the level of the state that carries compelling force without the say-so of states.

The EU is a prime example. It’s entire legal foundation is that of international treaties, freely entered into by states, who voluntarily give up some sovereign rights in service of shared objectives, but with the faculty to withdraw from that system if the trade-off no longer works. Brexit proves the point.

As an EU scholar, I realise I have been pampered about what’s what: the rest of the international system rests on hopes of good faith and of moral suasion. A moment’s glance around the world will tell you that Braverman’s shape-shifting ‘international law’ shifts shape because it keeps on getting bashed about. Yes, other states can try to make legal claims against you, but ultimately there’s very little they can do beyond some degree of turning their backs on you. The troubled history of international courts (or the UN Security Council for that matter) shows up the weaknesses.

And finally, sovereignty provides no help with the internal politics of our bit of the world.

This is where we came in: Bill Cash gliding over the difficulties Parliament has in scrutinising any part of government’s operation, let alone directing it. As many have observed, ‘taking back control’ seems to have meant giving the executive a lot more power to do as it likes, rather than re-empowering those institutions that more closely reflect popular engagement in the political system.

Put differently, sovereignty is purely relational, its quid pro quo being between states. You can find much discussion about where sovereignty lies within states – an absolute monarch, the people, even Parliament (in one specific case) – but is independent of the inter-state dynamic. That’s why we get all those appeals to respecting other states’ choices in the UN: if we leave you to run yourself as you wish, then you’ll do the same for us. Democracy doesn’t come into it.

So where does this leave us?

As ever, I’m loathe to treat politicians as either stupid or ill-intentioned. I’ve already suggested that Braverman asks a question that makes a degree of sense, if not more closely inspected.

Perhaps this is another case of the world being not quite as we’d like to find it. The desire for agency is a key part of politics; the notion that we matter in shaping things around us. But that agency has limits, most obviously in the interactive effects of each of us shaping things. Democracy is a mechanism for managing those interactions, to ensure that we allow individuals to have a voice and a vote, and to protect them from arbitrary decisions.

That mechanism is theoretically independent of scale: it can work for very small groups, through to very large ones. Democracy’s focus on how we can live together might be more productive than sovereignty’s interest in how we can keep apart.

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Making Northern Ireland consent work

Posted on 9th November 2023 by admin

2024 is going to be a busy year for UK-EU relations.

As much as we talk about the 2026 TCA review as a key point, next year will see a full refresh of EU leadership and the European Parliament, plus a probable British general election, plus whatever fallout from a US presidential election might occur.

And more than that, there’s also the Northern Ireland consent process, which will unroll at the end of the year.

Consent was introduced into the Northern Ireland Protocol as part of Johnson’s shift from back- to frontstop in 2019: while the Protocol arrangements might become the standing system, the NI Assembly would gain the opportunity to express their opinion on those arrangements.

This idea – an extension of the principle of consent so central to the Belfast/Good Friday agreement – is exceptional in giving the power to a sub-national body to determine whether an international treaty continues to apply, regardless of the wishes of the contracting parties.

When we looked at this at the point of negotiation, there was less clarity about whether it meant anything, largely because the provisions of Art.18 NIP seemed to need a fully operational Assembly, something that wasn’t there then and isn’t there now.

However, the subsequent domestic arrangements for meeting the obligations of Art.18 NIP have taken a much more robust line on trying to make sure that a vote happens in almost any circumstance.

As David Phinnemore sets out in his excellent explainer on this, the drafting draws on many years of Assembly filibustering experience to close down as many loopholes as possible once the process begins on Halloween 2024. Indeed, as long as there’s at least one MLA who wants a vote to happen, then it’ll happen, even if every other MLA doesn’t want it.

And even if it doesn’t happen, that still means the Protocol remains in force.

The only way that MLAs can collapse the Protocol is an active majority vote against it.

Of course, anything less than a robust vote in support will come with political implications for the Protocol: unionist opposition is one thing, but republicans and non-aligned ambivalence is another. Given that the Belfast/GFA model looks less than resilient in general, there is a non-negliable risk that the Protocol becomes another dimension of Northern Ireland’s political tensions, drawing it into any recasting of arrangements down the line.

However, this is a way off for now and all involved have other things to occupy them. That said, while Christmas 2024 might mean a moment to gather thoughts (and breath), the (probable) clearing of the first consent vote is unlikely to mark the full stabilisation of the Protocol or – by extension – of UK-EU relations.

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A note on public opinion and Brexit

Posted on 12th October 2023 by admin

This week saw UK in a Changing Europe drop a report on public opinion and Brexit.

It’s notable partly because there’s less and less in-depth exploration of this question with the passage of time: even if Brexit isn’t actually ‘done’ in poli-sci terms, it increasingly is in social and party-political ones (as witnessed by the ‘Europe policy’ wasteland of the Labour conference this week).

But it’s also notable because it reminds us that even with something as momentous as Brexit – which was genuinely A Big Deal not so long ago – publics do not hold consistent views.

Consider this:

Image

This is a classic chart of recent years: ‘everyone’ thinks Brexit’s a crock, regardless of voting behaviour or intention. It’s the heart of the Bregret-Rejoin narrative, wherein we realised we’ve done a terrible thing, to which the answer is to undo it all and go back to The Good Old Days.

You can look elsewhere for discussion of why this is a problematic narrative, but let’s leave it with the observation that it was precisely The Good Old Days that led to the 2016 referendum in the first place. Old? yes. Good? debatable.

Anyway, let’s look at the next chart:

Image

For all that most people think Brexit’s been rubbish so far, that doesn’t translate into the longer-term. A clear majority of Leavers think it can all turn the corner in the end, enough that the overall population view is much more ambivalent than the previous data might suggest.

When I tweeted about this at the time, much of the response was one of either “these people are obviously misguided” or “it’s just a minority of the population, so ignore them”.

I can understand where both views come from: the onslaught of evidence about the costs of Brexit continues week after week, while the swing from the referendum result is significant and clear.

However, it all feels like it has fallen once more into the classic traps of this domain.

The leitmotif of British European policy has always been its use to beat opponents; there has consistently been more interest in scoring domestic party political points than in finding broad consensus about the purpose of dealings with European states.

The referendum was much more a device to overturn domestic power structures than it was a considered debate on the situation of the UK in the world. Just as the fights to control the narrative of What Brexit Meant weren’t that much about EU policy but instead about owning the next generation of political discourse.

That this was both wearying and unsuccessful should be clear enough to all involved and – you might hope – would point to trying a different way of going about things. Maybe by looking for ways to reach across divides, instead of trashing those who disagree.

Maybe not.

As the referendum campaign and fallout demonstrated, rationalist arguments about costs and benefits have significant limits. People hold inconsistent views that are often more shaped (and shapeable) by emotion than cold, hard facts. ‘Take back control’ and ‘get Brexit done’ are powerful messages, whatever you think of the politics behind them (which many people didn’t think about particularly).

So yes, most people think Brexit is a mess, and yes, most people don’t think it’s ever going to turn out well. But that doesn’t mean we shouldn’t be looking for ways to build new narratives and approaches that reach out those who disagree. Otherwise, we will find that any new policy choice is neither equitable nor durable.

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Pausing, stalling or stuck? Thinking about the next steps of the EU-UK relationship

Posted on 24th September 2023 by admin

Still not very far away

We’re at a bit of a junction in EU-UK relations right now.

Having bumped back from the questions of good faith with February’s Windsor Framework, the two sides got to work on the next obvious target: Horizon membership.

Seven months later – and with enough discretion that I could record a podcast saying it wasn’t coming soon, two days before it came – we got a deal.

And now?

Well, now we appear to have slipped into a gap of some kind.

Certainly, there are things that need attention right now, like car batteries, but despite pressure on both sides to rework tariff schedules, the Commission seems not to want to play ball. On the UK side, joining the Pan-Euro-Mediterranean (PEM) Convention also looks a bit distant.

Outside the narrow confines of the Trade & Cooperation Agreement (TCA), the UK is also still working out how it handles the European Political Community (EPC) summit it’s supposed to host next summer (dates and location still TBC).

In short, there’s not much sign of things going on. Which is either because those things that are going on are being kept very far from the limelight, or because there aren’t things going on.

To be clear, there is a baseline of on-going contact and interaction, to service the various agreements, but that’s rather different from substantive work on opening out new areas.

If we assume that an absence of public comment is the best marker of in-camera activity, then Breton’s statement on car batteries looks like a signifier of inactivity, or impasse. And that’s for the most obvious next step in working together.

Which takes us back round to my title: are we in a holding pattern right now, and if so, what kind of holding pattern is it?

As I’ve argued before, Sunak has approached EU relations through a strong lens of his domestic political situation. Windsor made sense as a closing-off of an obvious problem (plus a clear differentiation from his predecessor but one), and Horizon was self-contained enough to be worth the effort, but getting into bigger resets looks like a hiding to nothing, either with his backbench or with voters that increasingly don’t rate the matter as that important.

So the British government is arguably in a fire-fighting mode for the rest of this administration.

But what about the EU?

Domestic factors obviously apply here too. We’re on the run-in to European elections next spring – witness Von Der Leyen’s State of the EU speech last week, with all its pitch – which means lots of people changing jobs, even if the underlying political balance doesn’t move very much.

Add to that all the other things the EU is concerned with, from rule of law to enlargement to post-Covid reconstruction, and it might be understandable if attention is elsewhere than the UK.

But at the same time, the Union has held a long-term position of deepening ties with its neighbourhood, especially with those bits of it that aren’t actively antagonistic. That’s an uneven track, but as a rule of thumb, there’s a clear preference to doing more together.

Perhaps the current hiatus is a temporary thing, a product of everyone waiting to clear the coming election year on both sides, so that everyone can pick up in late 2024 with a clearer sense of what’s what.

However, Windsor shouldn’t leave us thinking that we’re back to regular business. The scars of the Internal Market Bill and the Retained EU Law Bill and the noises off about ECHR membership are still there and still fresh in the minds of EU policymakers.

Even if there is a change of party in London next year, that will still leave issues.

Firstly, Labour have put so many fences around policy that there might not be scope for doing much. With dynamic alignment apparently also off the table, some in Brussels might be forgiven for thinking that a full and frank discussion in the UK of trade-offs might not be about to happen.

Secondly, even if Labour are willing to conclude new deals, then at least half an eye will be on the trajectory of the Conservatives in opposition. With the possible sole exception of Michael Heseltine, the general view is that the party will drift right under new leadership, given its membership. While that might make a second Labour term more likely, the past seven years will give enough pause for thought about What Britain’s Like. Is there risk in setting up more entanglements with Labour, if a returning Tory government is going to tear things up again?

Such views are understandable, but also come with the risk of setting up a new stasis.

As a case in point, look to Switzerland.

Here we have a much closer relationship, but one with significant issues, both political and institutional. Both sides bump along, sometimes making progress, but often not: we’re nearing a decade of to-and-fro on an institutional accord that still has no clear endpoint, even if the Swiss are moving once again to get things going.

In both the Swiss and the British case, the EU has arrangements that function acceptably, even if other opportunities are left on the table, so if there are more pressing issues to work on, why not just leave things as they are, on a semi-permanent basis?

The EU’s built up a lot of experience and expertise in handling crises (you can read about this is in a couple of volumes (here and here) that I’ve contributed to), but we’re not in a crisis any more.

Regular governance doesn’t have the glamour of an emergency situation, but it still requires attention and effort. Not least because several of the crises the EU has faced have come out of the failings of that regular governance: Brexit is a case in point.

As a recovering historical institutionalist, I’ll end by noting that institutions are sticky: the arrangement you put in place in a hurry because you had to often end up sticking around for a very long time, even when they don’t really work so well. Again, the Swiss model is a good example.

Whether the UK is now locked into the TCA model remains to be seen, but the next year will give us a pretty good idea.

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Goodwin’s ’10 reasons why Britain will not rejoin the EU’: some thoughts

Posted on 3rd August 2023 by admin

The sight of more heavy rain outside the window tells me it’s high summer. This means all the important people have gone on holiday to somewhere sunnier, leaving us hoi polloi to discuss politics.

As a result, I’m at my desk when Matt Goodwin’s latest Substack post arrives, heralded as a contribution to ‘silly season’.

The core argument is that talk of rejoining the EU is overblown, because there are lots of things that are problematic about membership.

Since Matt reminds me how many of us all subscribe to his Substack, I’ll assume you’ve read it.

As a first thought, this is classic eurosceptic messaging on the EU and European integration: it’s costly, it’s too intrusive but also not strong enough to sort things out, it’s lethargic and divided and it leaves the door open to millions of people coming here.

These messages don’t just date back to 2016, but to the mid-1990s.

The messages have hung around for two main reasons.

Each of them taps into wider discontents and emotions about politics, about foreigners, about fairness that allow them to leverage more engagement from audiences. Politicians are the least trusted profession in the UK, you say? Well maybe it’s not going to hurt my cause (whatever it is) to trash-talk them then, right? Certainly I can think of would-be populists who rail against the failings of the ‘new elite’ in just this manner.

But the messages also persist because they have something to them. Continue reading →

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“Leaving the ECHR” and other confusions

Posted on 13th July 2023 by admin

A mild detour for me before the summer holidays kick in: the European Convention on Human Rights (ECHR).

Part of the wider logic of ‘taking back control’ was the need to unshackle the UK from other constraints on its freedom to do as it will, in order to address situations it faces. Just as leaving the EU was framed as becoming a more nimble and flexible international partner, so too has the status of the ECHR long been a sore point when it comes to managing migration, asylum and deportations.

The long saga of the Rwanda policy (Note to self: must make a graphic to try an unpick the logic) has only reinvigorated this latter point. Tory backbenchers talk about ‘leaving the ECHR’ now, just as they have done for some time, to allow the government to implement its democratically-agreed policy.

The graphic below takes such comments at face value. It explains how a state ‘leaves the ECHR’ (basically, you write a letter and wait six months), but also the various consequences.

The aim here is to highlight the interconnected nature of laws and of treaties: obligations towards the ECHR aren’t only found in the ECHR treaty itself.

None of what’s here is particularly new: Steve Peers wrote extensively about this within weeks of the TCA’s sign-off in early 2021, for example.

“That’s not what they meant”

When I posted this yesterday, the response was interesting, in that various people came back to argue that none of this was really about ‘leaving the ECHR’ (despite that being literally what was being said), but about ‘leaving the Court’.

The European Court of Human Rights (ECtHR) is created by the ECHR Convention to adjudicate on cases relating to provisions (Article 19, fact fans). A simple explanation would be that the ECtHR is the ECHR equivalent of the European Court of Justice in the EU, i.e. the final arbiter of the relevant provisions. That means those resident within ECHR signatories can ultimately take their cases up to Strasbourg for a ruling, which national courts then have to abide by.

In the UK case, there was a long period when that was pretty much the only way people could rely on ECHR provisions, because successive British governments hadn’t wanted to incorporate the Convention into domestic law. You still had the protection of the various provisions, but you had to make a lot of effort to enforce them.

This changed with the Human Rights Act 1998, which essentially gave people access to ECHR remedies from domestic courts. But doesn’t change the basic nature of British membership of the ECHR.

Which brings us back to the critique mentioned.

Maybe backbenchers want to bin the Human Rights Act. That they can certainly do, but it wouldn’t stop those pesky activists securing remedies and rulings from the ECtHR, so it’s not really a solution to their basic problem.

Maybe, as one person argued, it’s literally about the UK not being part of the ECtHR, while still being in the ECHR.

Without wanting to go all Donald Tusk, this is cherry-picking in its purest form.

The ECHR Convention only provides for complete denunciation (Article 58): you leave a bit, you leave completely. If the UK wanted to try for not having the ECtHR provisions apply to it, then it would have to secure a formal renegotiation of the Convention and the approval of the other members.

[Spoiler: those members aren’t going to agree to this]

In short, none of these paths are viable: being in the ECHR is like being pregnant – you either are or you aren’t.

Rule Britannia

The underlying tone in all of this debate is very much akin to that found in the Brexit debates: why can’t we just do what we want to?

The notion of the UK as a great nation, not to be told what to do, is a strong and pervasive one. But it also leads us to think that just because we want to do things in a particular way, others must let us.

One of the big takeaways I have from the past decade has been that international politics is about the clash of what everybody wants and that no one gets to decide things by themselves.

You want to make international arrangements? You need to get your international partners to agree.

You want to make a choice about something with an international dimension? You need to accept that others will react to that.

Which isn’t to say that ECHR membership is good or bad; just that it requires us to understand what that means and how it works.

 

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What could the review of the Trade and Cooperation Agreement actually be like?

Posted on 6th July 2023 by admin

This is an extended version of a blog originally posted with UK in a Changing Europe by Simon Usherwood and David Moloney.

The conclusion of the Windsor Framework has rightly been taken as a moment for UK-EU relations to reset. As part of that, belated notice has fallen on the review clause of the Trade & Cooperation Agreement (TCA). The provision sets up five-yearly reviews of this cornerstone treaty between the two parties and has been seen by some in the UK as a place to engage in wholesale renegotiation of relations. By contrast, the EU is pointing towards a much more technical exercise, while others still point to the potential for further tensions.

We argue here that given the vagueness of the provision, what actually happens is primarily a function of what the two parties decide to make of it and as a result there is much still to be settled. If the review is to produce anything of substance, then both Brussels and London need to agree on a process and a realistic set of objectives.

 

The context

Article 776 of the TCA is short and to the point:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

It’s a provision that can be found in a number of other agreements concluded by the EU in recent years, such as with New Zealand on data exchange for law enforcement or with the US on Passenger Name Records. It differs from provisional application provisions (like for the EU-Canada trade deal) that were historically more common in that the agreement is in full effect and there’s no explicit mention of having to pass a hurdle to move to a permanent arrangement. As such, it’s also not quite the same as the six-yearly review in the US-Mexico-Canada Agreement, where specific options are listed, including deciding to terminate it all.

Notably, international law on treaties is silent on such reviews. The Vienna Convention on the Law of Treaties, which is the standard benchmark in such matters, sets out how contracting parties can invalidate, terminate, withdraw from or suspend a treaty, but leaves it to case-by-case choices on reviews.

Instead, it’s best understood as a primarily technical process, largely reflecting the increasingly technical nature of provisions and the need for the joining up of numerous national systems and processes. Note that it speaks about reviewing the ‘implementation’, rather than the TCA itself. The terse and generic formulation does not explicitly engage any of the numerous bodies created by the TCA nor require any formal approval or even acknowledgement by the two parties.

Indeed, this is best underlined by the question of timing. While many in the UK have suggested that the five year period would be concluded by 30 December 2025 or 1 May 2026 (five years since the provisional or full application respectively), the EU has more recently suggested that the latter date would be the start of any review. Given that the UK has not pushed back on this, the latter timetable is more than likely to prevail, especially since various parts of the TCA have still yet to come into effect.

However, a technical process does not preclude political engagement alongside it. None of the other cases mentioned have covered nearly so much as the TCA does, nor were any of them produced under such pressure of time and politicisation. Which is to suggest that there are three logical paths that might be followed from 2025 into 2026.

Three pathways

The minimalist model is the most obvious, given the comments just made. If it followed the pattern of other agreements, the two parties would engage in no more than a technical check on implementation, underpinned by reports from the various sectoral committees, with a view to addressing any emergent issues and to refining processes.

This approach would be kept away from politicians, except in some final approval through the TCA’s Partnership Council, possibly accompanied by some declarations about actions to attend to whatever procedural or bureaucratic barriers inhibit the implementation of the treaty as it stands.

The attraction here is that it fits closely with much of modern international treaty management: no new negotiations or big political displays to coordinate, just technocratic optimisation by the people actually doing the work. If we assume that any new agreements – within or outside the TCA itself – would run on their own timetable, then this periodic check helps ensure more general ticking over of the machinery, albeit without offering an opportunity for more structural reform.

Such reform is however one of the major reasons the review is now receiving attention in the UK. The possibility of a new Labour government from the next general election has prompted calls for a root-and-branch recasting of relations. The review might, in this maximalist view, become the moment on which that turns.

The May 2026 start would come some 18 months into a new UK government, giving them time to organise themselves around a new mandate and to get going on the rest of their manifesto programme. With some practical demonstration of British good faith and a clearer picture of how an opposition Conservative party moves on the issue, the EU might be persuaded that the TCA review be rolled into a wider reconsideration of relations.

This would require both sides to establish specific mandates to negotiate. In the EU’s case, that would need the approval of member states and widespread consultation. If the ambition were to stretch to discussing participation in the EU’s single market, then the status and operation of the Northern Ireland Protocol could also come under inspection, meaning London would have to work closely with Belfast, where the (non-)existence of the Executive might become yet more relevant.

Such procedural hurdles are matched by the political risks. The EU knows well from the failed decade of negotiations with the Swiss over recasting their relations that even where there are clear logics of organisation or of trade, this does not automatically produce mutually-acceptable outcomes. The memory of the negotiations with the UK of both the Withdrawal Agreement and the TCA itself will also linger long in Brussels, where it was noted that these were difficult not only because of the Prime Minister but also because the UK has its own interests and preferences. To take a more recent example of this, talks on rejoining the EU’s Horizon research programme – flagged as an easy win back at the signing of the Windsor Framework this spring – have become bogged down in questions of finance.

If neither a very limited nor a full-on approach feel satisfactory, then a mixed model might seem to square the circle.

Rather than starting with an explicit intention of recasting relations, the framing would instead be one of a desire for broad reflection on how the UK and EU work together. Here the TCA review would become part of the evaluation of what does and doesn’t work and what might be the steps to address that. The door would be left open to negotiations or treaty amendments, but pushed down the line.

2025 and 2026 would therefore see increased contact between the parties, at both political and technical levels, with joint working groups drawing in consultation from relevant groups to produce options for consideration. By removing any initial obligation to particular outcomes, this might encourage engagement from a wider range of participants and improve the chances of producing more stable and resilient systems.

However, that same flexibility and open-ended approach risks creating a permanent instability, where each side speaks of wanting to improve things but without both being able to agree on how to do it. With the constant cycle of national elections in EU member states, quite aside from the vagaries of British politics, the lack of ability to be confident about holding a consensus long enough to translate it into a firm commitment of some kind points to potentially destabilising a relationship that has only just started to find its feet.

What matters

Ultimately, the review clause is an empty vessel, waiting to be used as the UK and EU see best, so far as they can agree on what that actually means. Unless and until they achieve a consensus on an approach, then even the minimalist model might look over-articulated.

So what will determine whether and how the two sides find a common understanding?

Firstly, the position of whatever British government is in office will be crucial. Is there a clear and reasonable strategy behind its European policy? Is it ready to invest sufficient political capital on an issue that most voters aren’t that interested in to overcome any domestic opposition, including from those on the other side of the Commons? If there is any doubt in EU minds on these points, then there is very little interest in doing anything more than the bare minimum.

Secondly, the EU itself matters. While the post-Brexit period has seen a big push towards strengthening international trade partnerships and while the invasion of Ukraine has stimulated cooperation on security, that might not still be the case in 2026, especially if all of the obvious actions have already been taken. Member states have many other policy priorities to work on, so is a return to working with the UK important enough to merit the effort?

And finally, we have to consider the TCA itself. At this stage, it is impossible to make a balanced judgement about its operation, especially given that various parts of it have yet to start operating at all. If the next three years end up with a piling up of problems (as we are starting to see with rules of origin on car batteries, for example) then pressure for a more involved review might build. Conversely, as market operators and politicians adjust to the much calmer post-Johnson world of working together, a low-key approach may prevail.

However it plays out, the bigger message is that it’s only by working together that the two are going to be able to make mutually-acceptable and durable decisions.

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What might Labour do on UK-EU relations?

Posted on 22nd June 2023 by admin

Maybe it’s the sense of the passing of the seasons and the proximity of the next British general election, but recently I’ve been asked a lot about whether a Labour government would make a bold move on EU relations.

Mujtaba Rahman has obviously also been finding this, with his report today about various member states being up for flexing to get the UK much closer in the wake of the war in Ukraine:

If I’m hesitant about the degree to which the EU might actually bend single market arrangements after making so much of cherry-picking, and about how widespread such views are, the simple fact that this is even being discussed points to the potential for fluidity in relations.

That said, what the EU wants/might accept is far from the only variable. Not much of postwar European policy really makes sense without considering the domestic political constraints and incentives in the UK itself.

With that in mind, I have been turned over this problem for a while to produce the graphic below.

Factors

I’m assuming here that political parties are shaped by a number of factors. First there is ideology, but if we accept that centrist left thinking has never quite settled on whether internationalism is compatible with national solidarity then I don’t think this is much of a factor here, so I omit it.

What can’t be left out is voter support. Labour has been assiduous in targeting those things that have lost it votes (e.g. Corbyn and the radical left) and those things that might win it votes (e.g. competence in economic management). That’s worked really well, even if aided by late-stage Tory rule, so any EU choice needs to be seen in that light.

Let’s note Labour is already home to most Remain voters and has built up its recent success on the back of attracting Leavers from the Tories, all while not really talking about the EU at all (see Kelly Beaver’s presentation to the recent EU-UK Forum conference for more).

Even if the salience of things European has dropped markedly, there has to be some concern that a move to a major reworking of relations (i.e. either single market membership or rejoining) under a new government will cause some of those Leavers to reconsider their support, more than might be offset by the tapping into people’s clear frustrations over the situation right now.

Internal party cohesion also matters. As any Labour leader can’t fail to have noticed by looking across the aisle, ‘Europe’ can be a highly divisive force within a party. Even if Labour isn’t quite as exposed as the Tories were during the last 20 years, there are clearly a range of positions on European integration and the UK’s relationship with it.

Part of the peace on this recently has been exactly because the leadership hasn’t pushed a radical line. If that changed then we’d expect to see some MPs break on that, especially if the Commons majority is small; in that, the legacy of Spartan ERG rebellions by MPs utterly unwilling to bend to their leader’s will is likely to live on.

We also have to remember that parties have more than one policy. This carries two main implications.

Because European policy is cross-cutting, changing basic trading and political relations with the EU would come with implications for the rest of the policy platform. Trade policy with the rest of the world is an obvious example, but recasting economic links with the single market would also affect the government’s ability to pursue unilateral state aid or public procurement. Business would face another uncertain transitional period to any new arrangements, weakening or delaying investment choices, which in turn might cause short-run negative impacts, even if they ultimately unlocked longer-term benefits. As we know from recent history, a weaker economy also affects tax income, monetary policy and the overall pursuit of government objections.

Moreover, that cross-cutting nature of EU policy also means that moving beyond the TCA framework risks generating significant opportunity costs. As we’ve seen with Brexit, EU rules have been deeply intertwined with domestic processes and structures, and returning to significantly closer relations will carry a need to rebuild that. This then requires a diversion of political and bureaucratic capital that could otherwise be used for pursuing other policy goals (and ones that voters consider more important, let’s not forget).

While we might note that governments regularly walk and chew gum at the same time, the experience of 2016-19 should also point to the potential for the EU to become an all-consuming issue.

In all this, the EU itself matters. As we noted at the top, while there might be a variety of views among member states, anything that goes beyond just implementing the current treaties requires the EU’s explicit approval. That might be relatively easy for things like refinements to the TCA, such as a veterinary agreement or work on energy cooperation. But as the ongoing impasse on Horizon membership shows, even this level of work can be tricky.

But moving to readmitting the UK to single market institutions, let alone full re-accession, carries big questions for the EU. Partly that’s about a concern of whether this second volte-face is going to last any longer than the one that led to the 2016 referendum, but partly it’s also about whether the EU feels it needs the UK in general. The Union’s ability to progress on several policy fronts in the last three years and extent to which some member states have improved their profile in that time reflect how the UK would not be coming back to the same organisation it left.

And finally, there’s a dollop of good old party politics. Here I’ve focused only on differentiation to the Tories, since they would be the main opposition to a Labour government. Even on a conservative [sic] assumption that there wasn’t a shift to a more radically sceptical EU policy in such an event, we would expect there to be an effort to continue portraying Labour as European lapdogs, whatever they do.

If policy swung towards a more full-on shift to closer links, then the Conservatives will be more than happy to jump on that and make a ‘will of the people’-style argument to try and tar the entire Labour programme. Of course, if the Tories did that in an extreme way, under a ultra-hard Brexiteer, then that might help Labour narratives about how the opposition have lost the plot, but it still comes back to the opportunity cost point above; the more you spend time and effort on this, the less you have for other stuff.

I’ll note in passing that a more radical sell on the EU might be beneficial to Labour in covering any similar effort by the Liberal Democrats. However, even here we might note that the LibDems seem to have reverted to their 1980s/1990s approach of hyper-localism, coupled to passive internationalism, instead of pressing on with the very vocal pro-Europeanism of 2017-19.

Policy options

So overall, what we have are a range of factors, against which I’ve mapped four policy choices, ranged from ‘steady as she goes’ to full-on re-accession.

All of this seems to me to point to only two viable paths for Labour to follow at this juncture.

The first is the one they are on right now, the ‘make Brexit work’ model. This means tinkering with policy and working to reestablish good faith relations, possibly with a few new agreements of the kind already mentioned on trade, energy and possibly security.

This keeps things contained and allows the party to focus on what it sees as the lower-hanging fruit on economic and social reform that voters want. It also limits getting dragging into justifying itself to a Conservative opposition.

But it also means that there is a conscious closing off of options that might produce more significant effects down the line, economically and politically.

Hence the other, radical option is to use popular disillusionment over how Brexit was ‘done’ to leverage much closer ties with the EU. These ties would markedly improve (or more accurately, undo the damage done by withdrawal) economic access to the European market and be a marker of full-spectrum British reengagement with the world (because the current European hole doesn’t really help).

However, this radical model comes with clear short- and medium-term costs. Quite apart from endless Tory heckles about taking the Leave-voting majority for fools, it would suck up a huge amount of political resource, also raising questions about whether the rest of the manifesto could be pursued if new EU-inspired constraints were coming down the line. Plus, the EU might well not want to even play ball in starting negotiations, let alone reach an agreement of such a kind.

Which is all a long way of saying that as things stand now, I’d argue that Labour isn’t going to risk its current position by going for a markedly different European policy. If you want an historical analogy, then it’s a ‘second term issue’, much like single currency membership was for New Labour in 1997.

And you’ll remember how that turned out.

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We speak too!

Posted on 2nd June 2023 by admin

As well as this blog, you’ll be delighted to find that my skills extend to podcasting, to the same high levels of professionality/reading things on the internet.

With my return to the UK in a Changing Europe initiative through to May 2025, I’m delighted to say that rather than just having me speak on things Brexit-y, I am now joined by David Moloney.

David’s got lots of experience of researching EU negotiators around Brexit, plus a bunch of theorising, plus his accent’s nicer than mine, so we’re all winning on this.

Our first joint episode looks at Georgia Meloni’s recent visit to London to discuss cooperation on migration and how this fits into both EU policy on the topic and the proliferation of British bilateral agreements with EU member states.

https://soundcloud.com/simon-usherwood/ep282-migration-security-and-a-new-bilateral-approach

David will be writing about this here too before too long, but enjoy our discussion in the meantime.

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