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.

Posted in Uncategorised | Tagged , | Leave a comment

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.

Posted in Uncategorised | Tagged , | Leave a comment

Into full Windsor implementation

Posted on 1st June 2023 by admin

This week’s announcement from the Council on the adoption of three Regulations marks the end of a rapid process of enacting the Windsor Framework.

As discussed earlier this month, while the February photoshoot in leafy Surrey [my local news sources were very adamant about it not being even Berkshire, let alone Windsor] was good for headlines, it wasn’t much more than a set of commitments to enact a bundle of items.

While the Joint Committee‘s meeting within a month permitted much of that content to be moved into the rule books, even with an accelerated procedure the EU has needed a further two months to get these Regulations over the line.

But enactment is not quite the same as application, as we noted before. While I picked out a couple of examples last time, it felt sensible to be more systematic about this, given that we are now on the next stage.

The graphic below sets out the progressive application for the central Joint Committee decision and for the three Regulations: the other elements are effective immediately.

The Joint Committee decision unpacks its provisions, with goods subject to a phased introduction of new measures, conditional upon British implementation. This is similar to the original transitional elements within the Withdrawal Agreement and reflect an intention to allow market operators to adjust over a clear time horizon.

Likewise, the SPS Regulation phases in markings of retail goods, especially on diary and meat where production and distribution chains have been most cross-border pre-withdrawal.

Of course, markings on retail goods is a more general UK headache, with the UKCA mark pushed back to the end of 2024, so producers will need to incorporate this aspect in a more systemic overhaul, which in turn requires a definitive central government position.

Finally, the medicines Regulation will only apply from 2025, again conditional upon several British guarantees.

Recall that all of this comes three years into the notional start of the Protocol. Partly this is the price paid for the breakneck timetable of negotiation and ratification, but it is also a reflection of the British government’s long refusal to accept the Protocol as the baseline for future relations.

Business might be understandably loath to use capital expenditure when policy remains in the air: indeed, even when policy appears relatively clear, misallocation occurs with all its associated opportunity costs.

The take away here is still that implementation will be a long process, rather than an event. Even when we get to the end of this set of transitions, we run directly into the TCA revision in 2025, which might produce further changes. Not to mention the potential effects of a general election.

Relations are thus in semi-permanent flux: the question is how this is managed by the parties and communicated to stakeholders and citizens. Whether that’s easier or harder as we return to the technocratic mode is open to debate, but reflection on that now might seem a prudent course of action.

Posted in Uncategorised | Tagged , , , | Leave a comment

Even more retained EU law (in every sense)

Posted on 18th May 2023 by admin

A few months ago, the government updated its retained EU law (REUL) dashboard, its go-to place for monitoring progress in moving away from this foreign imposition on the UK.

As I noted at the time, this wasn’t entirely satisfactory, either in terms of the new discoveries of EU law or the progress towards the nomination deadline of the REUL Bill, wherein anything not explicitly dealt with otherwise by the end of 2023 would be revoked/sunset/sunsat/sunsetted.

It’s been clear from the off that the Bill is a nonsense, given that the government doesn’t know what is on the books and that departments evidently don’t have the capacity to check the impact of revocation.

That the government has finally conceded this point with the decision last week to move an amendment to make revocation an exception rather than a rule is welcome, even if it doesn’t address the other deficiencies of the Bill.

The intention now is that the government will seek to revoke a specified list of REUL by the deadline, with everything else being left for later/kept on the books (depending on how you want to see it).

That list finally came out this week.

Having produced a tracker of progress on REUL since last summer, it felt incumbent that I check out what was on this list and its impact on revocation.

On a first analysis, problems rather leapt out:

https://twitter.com/Usherwood/status/1658487530160001025?s=20

The problems are two-fold.

First up, the schedule includes a lot of items that weren’t previously listed on the dashboard: 171 of the 587 items, or 29% have no obvious match to what was available with last week’s update of the dashboard.

While many of these new items were relatively mundane and inconsequential, the fact that after two major revisions to the list there were still so many items that hadn’t been noted before just underlines the fundamental problem behind the REUL Bill: it’s hard to have confidence in the automatic revocation/sunsetting process when you keep on discovering new items that this affects.

This new discovery falls across a lot of departments in Whitehall, especially in DEFRA, DfT and DESNZ. The outlier is Treasury, mainly because their REUL is parked in a separate process under a new financial services bill.

However, for everyone the impression is that there’s ever more REUL than before (and these graphs are without the new items from the schedule):

record

Which leads to the second issue: record-keeping.

In the course of checking through the schedule it became apparent that there is neither a consistent identification protocol for REUL items nor a check on duplication.

to take two examples from the Excel spreadsheet behind the dashboard, Council Decision 2010/763/EU and Regulation 906/2009 both appear twice. Even if that doesn’t carry through to the dashboard itself, it raises questions about how far there is full oversight of the process in central government bodies.

Overall, while the government’s move on the REUL Bill is welcome it still leaves a number of basic questions unanswered on how practical or viable the process intended might be. The shift to retention until otherwise decided makes even more sense that it already did, but this should not obscure the difficulties involved or the potential for unintended consequences.

Posted in Uncategorised | Tagged , | Leave a comment

Thinking and planning ahead in UK-EU relations

Posted on 11th May 2023 by admin

As someone who’s just passed the 8th anniversary of his Brexit-related podcast (do sign up, it’s gripping), I feel I’m well-placed to consider the issue in the longer run of UK-EU relations.

I also feel broadly justified in summing up UK policy on the matter throughout the post-war period as “errrm”.

There’ a lot of reacting, not much proacting [?] and plenty of this:

As such, for a long time now my main question about Brexit has been: “what next?”

It was evident even before the 2016 referendum that it was not really going to be an engaged and thoughtful debate about the UK’s role in the world or the purpose of any particular form of relationship with the EU. It was a bun fight.

The lack of planning by either the government or the Leave campaigners for the eventuality of a Leave win meant 2016-17 was another bun fight over owning that result to advance agendas, most of which had nothing to do with UK-EU relations per se.

The horrors of 2017-19 and the fighting of many battles in Parliament stemmed from the profound lack of consensus (or even majority) in all this.

The runctions over the Northern Ireland Protocol that ran from 2020 have only continued to obscure the wider issue of what to do in the broader sense.

So I’m always on the look-out for people with ideas.

The most satisfying pieces have been those that focus on process. Anton Spisak’s work is a good example of this, as the recent Lords European Affairs Committee report (and not because I get quoted). Such pieces are at least as important as overviews of policy areas, which might set out opportunities, but not logics.

With all this in mind, I’ve been discovering something a bit different again: what we’ll call (because others call it that) the O’Malley Pivot.

For those who know about it, this might be point where you tut and note that the first part of this plan is shutting up about it. To which I’d make the rejoinder that a free Substack feed isn’t the place you put things you actually want to stay secret.

In essence, O’Malley argues that Labour should be left to be quiet about ‘Europe’ until they win the next general election, whereupon they form an independent commission to consider future relations and then sell the result as ‘actually getting Brexit done’, even as you end up much closer to a Norwegian model of relations. Sidestep the politicking, reach across the aisle, assume most people aren’t too bothered, especially if you can rebrand Freedom of Movement of people.

In its defence, it’s not the worst idea I’ve seen, by some distance. There’s no will to power, no heroic assumptions, no breaking of international law.

Certainly, if such a commission where to occur, I’d be happy to try and make a contribution to it.

But still, we come back to the questions of intent and legitimacy.

A commission of the great and the good [insert any punchline you like here] might be able to take a longer view, but any relations with the EU necessarily require a set of understandings about the UK itself and what it wants to achieve.

Maybe that’s about being a global force for good, or a major trading partner, but what if that leads you to seeking EU membership again? You might be able to revisit what Leaving looks like, but to revisit Leaving itself is another matter.

Even if you don’t arrive at a rejoining position, the technocracy of a commission and its attendant obfuscations about terminology are still problematic. Remember that one of the big drivers of euroscepticism across Europe is the sense of a lack of connection with the EU as a system. The assumptions of the permissive consensus don’t stand up any more, as was seen so often during the referendum.

None of which is to say that there isn’t a need to avoid falling into a cul-de-sac of European policy, where no-one is willing to expend the political capital needed to arrive at a policy that is anything other than least-offensive.

So process does matter. It needs all relevant parties to try to treat with each other openly and constructively, trying to take people along with them rather than dropping a little gift on their laps. And it means not prejudging the outcome, but accepting that a fair process is more likely to produce a fair result.

Posted in Uncategorised | Tagged , | Leave a comment

When is a framework actually in operation?

Posted on 5th May 2023 by admin

We’re now at a point where it’s possible to say that almost all of the Windsor Framework’s numerous elements are now either fully adopted or (for a handful of pieces of EU legislation) in the process of agreement.

That might make for a nicely-coloured graphic, but what does it actually mean on the ground?

As various people noted when I tweeted this out, having the legal adoption of a text doesn’t immediately mean it comes into effect, something that was being noted by the witnesses at the Lords Protocol Sub-Committee evidence session yesterday.

Partly that’s because of the provisions of the decisions themselves.

Article 23 of Joint Committee Decision 1/2023 (the key document in all this) sets out a number of different dates for entry into force of provisions. The default date is 30 September 2023, with only a handful of elements immediately in force.

It’s also worth noting that that default date only produces an entry into force if the EU is satisfied about access to UK information, EORI paperwork is correctly issued, the UK has guidelines in place on parcels and NI-GB goods export. No satisfaction, no operationalisation of the provisions.

There’s another reason too, namely the lack of UK documentation to clarify process (h/t to @irishagreement for this).

The government’s Border Target Operating Model will be the new standard system for goods movements across the UK’s borders, but this will only fully come into effect at end October 2024. Moreover, it specifically notes the Windsor Framework’s agreement and says new arrangements will be forthcoming ‘later this year’.

In both cases, the focus returns to UK capacity, rather than EU-UK agreement per se.

This was largely obscured during the time of the Johnson administration: the policy of contesting the Withdrawal Agreement’s provision (and status) meant that building effective systems necessarily took a bit of a back seat. This January’s agreement on a basic system of information-sharing can only be partly explained by the technical issues involved.

But IT is only one part of the infrastructure and process involved, as the Border Target Operating Model makes clear. From the EU’s perspective, making sure that this is all in place is understandably important, given the need to protect against any future backsliding by a UK government that doesn’t have a perfect record (and that might be out of office relatively soon).

This would have been the case even without Windsor: last year’s infringement procedures (now suspended) were precisely about such issues.

Even at arm’s length, interaction with the EU comes with obligations, something that will only become more evident as new areas of cooperation are developed.

Posted in Uncategorised | Tagged , , | Leave a comment

Over the Horizon

Posted on 27th April 2023 by admin

No graphic for you this time, mainly because the ideas that I’m writing about here are part of an on-going process/struggle for me to generalise into something bigger. But I’m sure you’ll cope.

Blossom: new beginnings, ephemeral

The ‘resolution’ of the Northern Ireland Protocol with the Windsor Framework earlier this year was taken in some quarters as a sign for all manner of new cooperation between the UK and EU to unfurl. Sure, Windsor didn’t actually solve everything (and needs to be implemented), but it gave both sides an opportunity to try giving their post-membership relationship a more regular twist.

Top of that particular to-do list was Horizon, the EU’s main research programme.

The UK had always said it wanted to stay involved in it after it left, but the joys of 2019-20 meant that while there was a mechanism for managing this in the TCA, it got stuck while the Commission pondered some technical questions that had absolutely nothing to do with the Irish impasse.

Result? Two full years of UK non-association to Horizon, which meant no access to several of the funding lines and severely restricting rules for the rest. UK researchers, who had hitherto been both disproportionately active and successful, either wind down their bidding a lot or else moved to other countries that could access the programme (i.e. pretty much anywhere else on the planet).

Windsor undoubtedly unlocked this. Even as Ursula Von Der Leyen proclaimed the Framework’s agreement with Rishi Sunak in the random hotel-that-was-more-Surrey-than-Berkshire, she said work on association could start ‘immediately’.

Of course, starting work ‘immediately’ doesn’t mean agreeing ‘immediately’, and we find ourselves two months later still without a settlement, despite some rounds of detailed talks.

The core issue now is one of money.

The UK argued that since it hadn’t been associated in the first years of the current funding cycle (2021-27), it shouldn’t have to make contributions for the time it missed.

After some pushback by the Commission, that point was conceded, whereupon the government then suggested that this non-participation had a chilling effect on researchers, who wouldn’t be able to return to full capacity in bidding for some time, so a further reduction in contribution would be proportionate.

And here we find ourselves now, a bit stuck.

It’s not clear how this issue will resolve, but confidence still seems high on both sides that a resolution is possible, but it raises a number of reflections about EU-UK cooperation.

Big picture, small steps

Perhaps the central point of this tale is that the calculation for doing work together is now situated in a different context.

Haggling over funding is hardly something that was invented on the day the UK left the EU: a moment’s glance at any budgetary question from the history of European integration will tell you that much.

What is different is the scope for trade-offs.

As a member state, the UK was – like its counterparts – able to balance out costs or disadvantages in one area of cooperation by building up package deals. Everyone gets something they value, enough to justify more localised costs. This was not only in treaties, but also in linkages across secondary legislation, most notably the Single Market programme in the 1980s.

Now however, the UK is a third country, so the EU is able to structure things rather differently. Horizon is not part of a package of topics, but a standalone. Agreeing the Windsor Framework was the entry price to a new negotiation about Horizon association, even though the EU had connected it previously.

The reason the EU is able to do this is two-fold.

Firstly, this is about the UK joining an EU programme. So the EU holds the veto power alone: whatever requirements it decides it has for entry, it can impose on the UK and anyone else. If it were about creating a new joint structure – like the Withdrawal Agreement or the Trade & Cooperation Agreement for example – then both parties would have veto rights, but this takes us to the second reason.

Despite being one of the world’s largest economies and a state with global ambitions, the UK is still relatively small in the grand scheme of things. As a result, its options for alternative lines of action are rather limited, which in turn mean that cleaving to the EU becomes more of a necessity, which takes us back to that first reason.

Research is a good demonstration of this.

Throughout the past few years, the UK government has talked up building alternatives to Horizon that ‘better serve’ UK interests.

Only this month, it published details of a plan for ‘Pioneer’, as a back-up should Horizon association not play out. This would have the same budget envelope as Horizon, so surely it’s just as good, right?

Not really.

The value of Horizon and its predecessors was always much more in the networks of collaboration that it built, rather than the money per se. For example, I’ve just finished a project with partners across Europe, South Africa and Canada which has given me a bunch of new contacts and opportunities for future work that would otherwise have been unavailable.

So Pioneer, like the other Plan B options the government has advanced before, falls far short, precisely because other countries aren’t part of it. Witness the Turing Scheme, designed to make up for exiting ERASMUS+ exchanges, which still has nothing like the breadth and range of international partners.

As any negotiator will tell you, knowing what your alternative to agreement might be is really useful in deciding whether to accepting that agreement. But in this case, that alternative is so clearly inferior (and clearly so to all parties) that it doesn’t really work as an incentive to the EU to flex. No wonder the minister has not gone full-Johnson on ‘no deal’.

All of this is likely to be a pattern that gets repeated again and again in the future. The EU’s relative weight mean it can be pretty confident that the UK will have to bend to its terms, or instead wait until it comes around to that idea.

This isn’t to say that the UK has no options, but rather that it needs to start from a position of understanding this situation more fully. And in coming posts I’ll write some more about what it might do about it all.

Posted in Uncategorised | Tagged , | Leave a comment

Implementing the Windsor Framework

Posted on 16th March 2023 by admin

The recurring trope of getting Brexit ‘done’ is incredibly hard to escape: the public (including my family, as far as I can tell) would love not to have the matter occupy their minds any more, and those more connected to matters would love to be in a more regular steady state.

Sadly, things don’t actually work like that.

So the Windsor Framework is not only not a ‘doing’ of Brexit, but its unveiling at the end of February wasn’t even the ‘doing’ of the Framework itself: it’s a pile of bits and pieces, almost all of which require more work to be given effect.

To keep some track of this, I’ve made the graphic below, which includes all of the Framework elements and their current status between being announced and coming into effect: I’ll update regularly.

Some notes are in order here though.

Firstly, even this busy graphic doesn’t include everything. The British government has made various other (vaguer) commitments, on a Parliamentary vote and on the arrangements for the Brake,  but until we have something closer to chapter and verse on their form I’m keeping these off the table.

Secondly, processes of approval vary wildly here. The stuff that’s ‘in effect’ are just statements, while several of the other things have to get through multiple steps in the EU, or the UK or the Joint Committee structure. As much as possible, I will link out to document versions (the PDF version has all the clickable links), since that’s obviously of consequence, although the logic of the Framework is that the scope for deviating from the original package is pretty limited.

Finally, all of this just highlights once more that the Protocol (and by extension Brexit as a whole) is a process: the Brake is a response to the dynamic nature of single market alignment. Which means we are never going to get to a fixed end-point in this, just varying degrees of stability and resilience of mechanisms to manage that evolving relationship.

Posted in Uncategorised | Tagged , , | Leave a comment

The Stormont Brake

Posted on 9th March 2023 by admin

The other evening I had a quick drink in Brussels with a bunch of people who could, by any reasonable definition, be described as experts on the technicalities of Brexit.

As I struggled with the whole order-your-beer-via-an-app thing, they discussed the Windsor Framework, as one does in such settings. It was clear that they (just like me) are still very much getting to grips with how it works.

As well as all the documents published last week, it’s increasingly clear that there will be a raft of further legislation and enabling procedure to make it all work. And that lawyers are going to get a lot of billable hours out of this.

A case in point is the Stormont Brake, the new mechanism to allow Northern Ireland a say on the introduction of new EU legislation there.

The graphic at the bottom of this post represents several hours on my part working through multiple documents, another couple of hours trying to re-organise that into a more useable form, and then various exchanges on Twitter about what I’ve missed.

Jess Sargeant at the IfG is the only other person who seems willing to try to do this exercise too and her version is very much worth your time, since it’s much better than mine about process:

https://twitter.com/Jess_Sargeant/status/1630988951262486528?s=20

What I do have is conditions. Lots of conditions.

The first objective here seems to be balancing the giving of voice to Northern Irish concerns about new legislation with the impairment of the Protocol’s functioning. The EU closely defined in the original text what was the minimum needed to keep the North-South border open, so any derogation from that is potentially a problem.

Hence the power given to MLAs is highly circumscribed and highly unlikely to be used (see Steve Peers’ excellent analysis on this too).

The second objective is about incentivising the DUP to return to power-sharing: none of the Brake can work without functioning institutions or a rather vague requirement that MLAs are acting in good faith within those institutions: any hint of messing about on this is grounds to dismiss the entire exercise.

Finally I will note that there’s lots of paperwork requirements here and London has dumped that on Stormont: if the Assembly want to use the machinery then they are doing all of the heavy lifting.

So enjoy this one and remember that it requires not only the Windsor Framework documents to be turned into actual decisions and legislation, but also further activity within the UK on a TBC basis.

Which means next week’s work is going to be about timelines.

Posted in Uncategorised | Tagged , , | Leave a comment

Starting to unpack the Windsor Framework

Posted on 2nd March 2023 by admin

The unveiling of the Windsor Framework this week was important in many ways.

Not only did it provide a set of solutions to the most pushing and tricky problems facing the Northern Ireland Protocol, but it also marked a return to more conventional modes of British diplomacy towards the EU.

To watch Rishi Sunak and Ursula von der Leyen at their press conference on Monday speaking in not only warm tones but also in very coordinated language, as they sought to generate (successfully) buy-in for a package of measures that had been put together under close secrecy.

As someone observed in my presence this week, no more of the leaking and briefing of the Johnson period, when everyone had an agenda and was just using the issue to get ahead.

Even if we still await a final confirmation of acceptance from both Tory backbenchers and the DUP, the signs are that this is the only game in town: evolving the Protocol into the Framework and (hopefully) letting everyone focus on further refinements to its operation and on other points of UK-EU cooperation.

So it matters.

But it’s also fair to say that the drafters of the Framework have decided to go for the ‘let’s make life not easy for the casual reader” approach.

Partly that’s because of the necessary mix of political statements and legal work, but it also conveniently makes it much harder for critics to point to obviously unacceptable language.

With that in mind, I’ve been working on trying to get a clearer picture of what’s going on.

My first graphic today organises the 21 documents by their status and effects: as you’ll see, much of this is about political clarifications and unilateral actions to resolve points.

There is one Joint Committee Decision that is crucial, and we’ll come back to that in coming weeks, not least to explore the new mechanisms of the Stormont Brake and the question of whether the CJEU’s role has actually changed at all (spoiler: not obviously).

Secondly, I took a quick go at the most significant obstacle to the Framework’s successful agreement and implementation: DUP approval for it.

Note that even if the DUP accepts the Framework, that does not necessarily mean it will either return to the Assembly or form an Executive under a Sinn Fein First Minister, even if the Stormont Brake is designed to get them to do exactly that.

Given that a functioning Executive is at least as important to Downing Street as making the Protocol work, the DUP’s decision matters.

Their seven tests from 2021 are still their baseline and as you’ll see while the Framework has indeed made progress on all points, none of them are unambiguously resolved to narrow readings of the DUP’s demands.

So still things to be played for and debates to be had.

If you have some aspect of the Framework you’ll like me to work on, just drop me a line and I’ll be happy to give it a go.

Posted in Uncategorised | Tagged , , | Leave a comment