Getting to grips with Retained EU Law

Posted on 2nd February 2023 by admin

I will freely admit that I have shied away from getting into the whole question of Retained EU Law, primarily because it’s much more about law in the UK than it is about EU law per se. I know enough to know that I don’t know much.

However, the question is one that cannot be ignored.

Firstly, the extent of Retained EU Law is such that how it is dealt with will have significant consequences for British legal systems, UK businesses and politics. The Retained EU Law (Revocation & Reform) Bill gives huge powers to the government to make changes to rules within effective Parliamentary oversight, for example.

Secondly, the headlong rush to sunset rules by the end of 2023 contains significant implications for the UK’s compliance with its obligations under the Withdrawal Agreement and (especially) the Trade & Cooperation Agreement, the latter with its Level Playing Field requirements. Given that the UK government is still unclear as to quite what falls into the Retained EU Law classification, even their intentions are to comply, the danger of accidental divergence is evident.

And finally, the entire shift on the matter speaks to the continuing uncertainty about what relationship with the EU the UK might want.

Almost from the off after the referendum, there was a recognition that something would have to be done about all of the internalised and semi-internalised legislation (and practice) that came from the EU. Not just the regulations and the directives, but also the principles of supremacy and direct effect and the extensive case law of the CJEU.

Given the unclear boundaries of all of this, the only viable option at the time of the Withdrawal Agreement negotiations was the one taken by the EU (Withdrawal Agreement) Act 2018, which just rolled over the membership-era system created by the European Communities Act 1972 and let the government take its time over resolving matters.

As I’ve been showing in my REUL Tracker (last discussion here and data files here), there has been some work to review and adapt to life after membership, but at a rather slow pace. Perhaps as a mark of that slow pace, the fancy visualisation tool first published in September last year has just undergone a big reworking, making it now very hard to keep track of what’s happened [one for next week I think].

However, the EU(WA) Act approach clearly caused issues for some in government, hence the flip over to the new Bill.

This drops methodically working through the pile to saying that anything not explicitly addressed by the end of 2023 will be sunsetted (sunsat?), even as any general principle of EU law is also removed from the practice of law in the UK.

The issues with this approach are both multiple and major, as set out in the graphic below.  Even if liberal use of the ‘exceptional’ extension to 23 June 2026 (not an insignificant date) would still likely result in a large percentage of Retained EU Law being dropped without the level of scrutiny one might hope for (assuming that the civil servants and MPs involved might also have other things that need their attention).

The Bill’s approach speaks to a desire to divest the UK of any vestige of having been an EU member, regardless of whether any part of it might have intrinsic value: a measure’s EU origin is enough to make the presumption that it must be removed.

This is of course a worldview that resonates with the notion of ‘taking back control’ and of British otherness; only we can know what is right for us, only we can make decisions for us. As political sells go, it’s not the hardest banner to run on, at least in a campaigning mode.

But politics is also about governing: our shiny ideas quickly tarnish in the glare of day as we start to use them.

And so it is here. The Bill might make good headlines, but it doesn’t obviously make things better for citizens, for traders or for relations with the European Union that (annoyingly) continues to sit on the UK’s doorstep. As I touched upon the other week, we don’t get to make unilateral decisions about our relationships, however much we’d like that.

At a moment when the government seems (maybe, perhaps) to be working towards some kind of deal with the EU on Northern Ireland, it would be ironic if it simultaneously opened up a new point of tension over an issue that only it seems to think is an issue.

 

 

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What do we talk about when we talk about negotiating a UK-EU relationship?

Posted on 26th January 2023 by admin

As you might have noticed, I have recently become a Senior Fellow of the ESRC-funded UK in a Changing Europe initiative, working on UK-EU relations. For present purposes, it mainly means I carry on doing this work, but now with more access to resources, and with a plan.

That plan is basically to try and make sense of relations, which feels like a bit more of a challenge now I’m actually getting into it. As such, it’s forced me to think more systematically about how to tackle this.

A key part of that is trying to unpack the various things we talk about when looking at this subject. So consider this a first stab.

Objectives

Long-time readers of this (and other) blogs will know that I have always placed a lot of attention on the question of objectives in the relationship.

In the simplest terms, what are we trying to do here?

Simple and obvious as that might sound, it’s very rare to hear this voiced by participants in the debate, beyond some boilerplate stuff about wanting ‘good’ or ‘constructive’ relations. Those things are nice, but hardly a well-developed conceptualisation of anything.

What do you need those good and constructive relations for? How do they fit into your wider foreign relations? How do they fit with your idea of what you want to achieve domestically?

These are the big questions that need to asked to get towards a better sense of any of the rest of what follows.

Processes

More common is discussion of how we build and run a relationship.

This starts by focusing on the types of instruments being used – UK-EU treaties; UK bilateral treaties with member states; MOUs; informal venues, etc. – each of which has its own range of options and flexibilities.

There’s also a process issue relating to who decides about the relationship. How much do you involve different political and social actors in this? Are you consulting widely, or trying to keep things tight?

These things all matter, both because of the future implications they carry (on flexibility, on the extent and nature of obligations) and because of the contemporary political values they contain (on legitimacy, on the seriousness of intent).

Content

This is the one we almost always discuss: what’s in the deal?

As I’ve already suggested, this kind of thing should really be driven by higher-order considerations about objectives, but in practice a lot comes down to specifics. Especially if you have a thing you think is important.

Scope clearly is consequential, also because a wider scope also tends to mean more people are affected/involved, which also has process implications.

Principles and Norms

This last category is slightly different in that it captures a number of ideas that inform the rest of the elements discussed here. Three examples might make this a bit clearer.

First up is the notion of good faith. Yes, it’s a principle of international treaty law, but it’s also good politics to be seen as (and actually to be) straight up, doing what you say you will. This speaks to trust, albeit in a more focused and applied manner.

Second we have the value placed on resilience and durability of agreements. As much as we have seen plenty of expediency in post-referendum British policy, there has also been an underlying effort to build some that will last. If nothing else, it hopefully means not having to spend so much time on things down the line.

And thirdly there is a notion that precedent-setting is important. This is more on the EU side, who don’t want to open the door to other third states popping up to demand the same treatment as the UK, but you also find in London, where particularities in dealings with the EU aren’t simple either (part of why CJEU powers are contentious).

Each of these suffuse the rest, even as they matter in their own right and deserve our attention.

Putting that together again

As I say, this is a first effort to systematise my thinking on this, but the main takeaway for now is that if we want to reach any equilibrium – high or low – in UK-EU relations, then we are going to have to make sure that we take proper account of all four parts of this, or risk falling another cycle making-it-up-as-we-go.

Which would be nice.

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Why ‘just rejoining’ isn’t a simple option

Posted on 12th January 2023 by admin

Yesterday I found myself on the brink of an interesting discussion about Brexit. Which possibly says something about me, as much as it does about the subject.

We’d started talking about public opinion and the emergence of what looks like a more robust move towards thinking that EU membership is a good thing. John Curtis has an excellent overview while even Matt Goodwin’s new polling on the effect of reminding people about the costs of membership still producing a plurality in favour (even if his point that things aren’t that solid is fair enough).

As I’m not a public opinion person – and know that well enough not to pretend I am – it was the next step of the discussion that was where I was pulled in.

Here, the discussion was about the lack of supply of party political options for people with this view on membership: there isn’t a national party pressing for it, despite the apparent appetite among voters.

Again, there are internal and external party political reasons for why this is, which aren’t my interest right now.

What is is unpacking some of the more mechanical aspects of why the UK rejoining the EU isn’t simply a matter of ‘just undoing the past few years’.

The legal bits

First up, we have to revisit the EU’s own treaties.

The reason is that this is the basic text that regulates membership, so any policy is going to have to work to this.

You’ll recall Article 50 – mainly because we all went on about it for four years after the referendum – which deals with leaving the organisation. You’ll be shocked to discover that Article 49 covers the joining bit.

And it’s the only mechanism for joining if you’re a sovereign state, so no avoiding it.

Article 49 puts in place various steps: approval by the Commission that you are in the right ballpark to join; extensive negotiations to check your political and economic systems comply with EU rules; agreement by all current member states and the European Parliament before you actually join.

Nothing about shortcuts for rejoiners, note.

As the Ukrainian case has shown, even with massive good will and pressing exigencies, the accession process isn’t fast for anyone because the legal obligations on the EU institutions are very substantial (admittedly by their own choice, but still a choice they are now bound to).

So any ‘rejoining’ by the UK would be legally just ‘joining’.

The political bits

Absent any legal shortcut, the UK would face a full accession process. For reference, Finland holds the record for the speediest process, with 34 months between applying and becoming a member state.

Finland is a useful counterpoint in this case, because – like the UK – a lot of its regulatory system and economic structures were already well-aligned with the EU’s. The EU demands as much adaptation to its norms before joining as possible, mainly because that’s when it has the most leverage. The UK has diverged to some extent, but not that much.

So in those terms, it’s not such a stretch, and certainly a stretch that will likely only increase with time, given the nature of regulatory drift.

But the politics is much more of an issue.

Finland was at the time coming out of its Cold War neutrality and engaging in a significant shift of state policy that had a broad consensus underpinning it in both public opinion and party politics (not complete certainly, but durable). There was minimal doubt about its good faith, as typified by its engagement in the years of negotiating the European Economic Area (EEA) before it switched up to seeking full membership. Remember that the EEA extends most of the EU’s single market and so contains much of the core activity of the EU.

The UK is not Finland, and will not be Finland even if a political party were to support rejoining and won office.

The experience of the period since 2016 – and, arguably, the period of awkward membership before then – has raised many EU concerns about what the UK wants of the organisation. Even with a broadly sympathetic government in office, relations could be tricky, and broadly sympathetic governments were rarely in office.

From the EU’s perspective, it will not be the regulatory side of things that is the sticking point, but the politics.

Most bluntly, what is the guarantee that a newly rejoining UK won’t go around the whole cycle again and leave once more? It’s evident that the EU still provokes much interest/attention/anger in the public and the political debates, so even if much of the steam has blown off, the demonstration of where this can all lead gives much pause for thought.

And all of this is before we enter into discussions about how a rejoining UK wouldn’t get the same opt-outs it used to have, or about how the budget is financed without the old rebate system. Or about how far a pro-membership British government is prepared to defend its policy.

So, not now

If this sounds very downbeat, then it’s also not to say that rejoining is impossible. As the past year has shown us, it is clear that Europe is in a time of flux and judgements can (and will) shift as events unfold.

But for a British government to start to treat rejoining as a proposition it seriously wishes to pursue, it will also have to put a long of work into addressing the gap in trust with the EU and into building a national consensus that this is a desirable and advantageous policy. Each of these two arms needs the other to work.

And as long as political parties in this country struggle to talk about European integration and how it relates to the UK’s ambitions that will not happen.

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The t-shirt guide to UK-EU relations

Posted on 15th December 2022 by admin

It’s often helpful to try and tackle familiar problems from unfamiliar angles: it makes you think again about what’s what and maybe it opens up some new ideas.

And so I present my t-shirt.

[yes, that is a finely-tuned physique it contains, but let’s leave that for another time]

A night’s sleep disturbed by the seeming lack of understanding about the basic choices the UK faces when it comes to economic relations with the EU had got me to some wild thoughts about another graphic. Possibly involving graceful curves. Which isn’t me.

Then I pulled out this top and a much simpler way of trying to work through the issue presented itself.

The t-shirt is – of course – not just a t-shirt. It’s an example of how modern economies work.

Beyond its material existence as a piece of clothing, it also comes out of a system of production that has to comply with numerous bits of regulation: standards on health and safety; approvals for the chemicals used in dyes; intellectual property rights for designers; obligations on truthful marketing; rules-of-origin for raw materials; and much more.

It’s also (and this was the clincher) a fine piece of British manufacturing. Lovely people, Restrap: totally recommend all their kit.

Like UK-EU relations how?

Using the t-shirt we can start to make perhaps more sense of options than would be the case with dry economic theory.

Let’s start with a baseline case: someone in another country that the UK doesn’t have any trade deals with hears about this t-shirt and wants to buy one.

Apart from having to sort out payment and shipping, the customer in our imagined country might encounter a number of additional barriers before they can pull it on.

The most basic of these would be either a limit on the number of t-shirts that can be imported each year from the UK (a quota) or a charge applied to each t-shirt being imported from the UK (a tariff). These are both classic ways of protecting domestic producers.

You can deal with these kinds of barriers with a free-trade agreement (FTA). Usually these involve reducing quotas and/or tariffs, but in the case of the FTA that the UK signed with the EU – the Trade & Cooperation Agreement – they went for zero quotas and zero tariffs, largely because these didn’t exist beforehand to be removed.

Great stuff, but not actually ‘free trade’.

Remember all those rules I mentioned beforehand? Well those are still in place, so our customer in country X might find the importer who’s bringing in the t-shirt has to satisfy national authorities of compliance with those various regulations and standards.

One big thing you can address is the question of where something comes from.

In our case, country X authorities might be concerned that even if the UK rules on producing t-shirts mean they’re not a competitive threat to domestic producers, maybe a UK firm is just acting as a conduit for much cheaper producers elsewhere, taking advantage of the UK’s low tariffs with them.

Similar, the t-shirt might be made in Yorkshire, but the raw materials will come from elsewhere, cotton not being a big crop in God’s Own Country. But because enough work has been done on those materials inside the UK, per UK rules (which reflect international norms), it’s now a UK-made product. More complicated items, like bicycles, are more complicated, but the same idea applies.

You can start to solve both these kinds of problems with a customs union.

All parties in such a union agree to have the same tariffs in place with third countries, so that you don’t get the direct problem of diverting trade through the low-tariff state or the indirect one of bypassing tariffs by doing work on things to make them ‘locally made’. Now, wherever goods enter the customs union, they get the same treatment, which means it’s no longer something that needs to be checked at internal borders. Indeed, you don’t need internal tariffs at all.

All good stuff, but there’s still a lot left on that original list. What if country X requires all text on items to be provided in the local language? Then the producer now has to either make a new version or supply some translation: neither’s a big deal in this case, but it’s still extra cost to do and if it needs to be signed off, that’s still paperwork.

So the big step to address these barriers is to have a common or single market.

As the name suggests, you’re trying to make something that’s more like the conditions you’d expect to find within a country. I hadn’t have any additional checks or controls when I bought this Yorkshire item from Surrey, so why do the same with country X?

In principle, you can do this – it’s more or less what you have in the EU, for example. But it’s very much bigger thing than an FTA or a customs union.

That’s because it can involve an awfully large number of things.

Importantly, it’s not simply about removing differences in rules on producing and moving goods (which itself includes manufacturing, transportation protocols, workers’ rights, environmental protection and more).

It’s also about removing differences on offering services (e.g. accessing the help service should I need guidance on, um, making my t-shirt work), moving capital (e.g. being able to have transaction-cost free purchase options in other countries) and allowing workers to move too (e.g. to make it possible to hire the finest t-shirt makers from across the area without restrictions).

Suddenly, the simple idea turns out to be really quite involved, especially because you can’t just do these things for t-shirts: you do them for the entire economy.

And there we go

This last point is the key one.

A lot of what we talk about when we look at UK-EU relations is specific cases: visas for musicians, rules on fish, proper cheese from France.

But in many – maybe most – cases, the principles involved are ones that tend to imply much bigger and more generalised processes.

Certainly, in each of these situations – no specific deal, an FTA, customs union, a single market – there is a degree of wiggle room. The EU’s single market has various gaps in it, for example, just as the UK has mixed in a very high level of integration with the EU for Northern Ireland alongside its otherwise very minimal FTA.

However, wiggle room is not the same as the fundamental differences that come with each basic option.

The more you work together to remove barriers to trade, the more you limit yourself in what you can do with third countries and what you can do domestically.

A customs union is not just an agreement on common external tariffs; it’s also an obligation to negotiate as part of that union in tariff discussions with other states.

A single market is not just a means to get full and free access to your partners’ markets; it’s also a permanent negotiation about addressing emerging barriers and a significant intrusion of your partners into making decisions about what happens in your country.

The t-shirt dilemma

Which brings us back to the t-shirt.

Economic integration is also political integration. None of the steps to ‘improve trade’ outlined above comes without some political implication domestically.

That’s always been the case, both in the abstract and in the particular case of the UK and the EU. And it would be foolish to pretend otherwise.

Too often, we have seen either a framing that is solely economic or solely political, without really trying to put them together. It’s not that ‘X% hit to GDP’ or ‘taking back control’ is wrong, just that neither is the full picture.

And so it is with our t-shirt, which by this point is starting to wonder if some other piece of clothing might not have been pulled out of the chest of drawers.

The t-shirt is both an item of clothing, to be traded as a product, and a representation of UK domestic producers, generating local value and competing in a globalised market.

The more we can recognise those different aspects and the need to take a considered view of how they might best be balanced, the better we will be able to make the big choices about what basic model of economic relations with the EU best serves our collective needs.

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Talking better about Brexit

Posted on 8th December 2022 by admin

Last week, Anton Spisak at the Tony Blair Institute produced an excellent paper on how the UK-EU relationship might be fixed. I heartily recommend it to you as an overview of where we are and what might be the way forward.

Of course, being a practical-minded sort, I did have some queries, as set out in this thread:

Central to my response was a question mark about how to get going the serious debate on what relations should look like. Politicians appear to either not know about the necessary details and trade-offs or not want to spend valuable political capital on a topic that is – frankly – a turn-off for most voters.

It’s no coincidence that ‘get Brexit done’ has been the most successful gambit since 2016: it’s an expression of frustration/disgust at [waves hand expansively] all this. It’s also not really a policy with any substance behind it.

This week has only underlined the point further. Labour’s big constitutional policy paper didn’t mention how relations with the EU (which include the Northern Ireland Protocol’s extensive entanglement and differentiation) might affect matters, while Kier Starmer himself tried to park whether he would rejoin the Single Market, to little avail.

This really just demonstrates the point that Westminster currently looks like a place where there might be serious discussion of what the 2016 referendum result means in terms of the kind of society the UK should try to be or of its place in the world.

Instead, it looks as if the next government will be just as prone as the current one to treat EU matters in a reactive fashion, fighting fires as they appear.

So what to do?

In other European states, such profound debates have typically ensued in the wake of major national trauma or change: the end of the second World War, the collapse of Communist regimes, etc.

That’s not really a sensible option for the UK: even if you wanted to raise the referendum itself to that level, the fact that it was precisely on this issue makes it very hard to use it in that way. Plus, if we haven’t used that moment during the past 6.5 years, why would we rake it over again now?

An alternative would be to wait until barely anyone cared/noticed, and then change policy either to address obvious problems or to match someone’s interests. That might be a technocratic agenda or it might be a deeply political one, but in the absence of quite so much heat in public debate the temptation to sit things out now is clear.

The problem here is that the issue is unlikely to ever dip off the political radar: witness the concern of leavers about precisely this kind of approach being taken by their opponents. Even Starmer’s rebuffing of the Single Market ‘right now’ was taken by some as a clear signal of an agenda trundling down the line.

In addition, even tinkering to fix the problem would probably not resolve matters, given both the extent of ties and their dynamic nature. Even small steps might have big effects, which could reignite politicisation and undermine confidence in the policy.

Which leaves the option of recasting and recontextualising Brexit into something bigger.

As much as Brexit was about being in or out of the EU, it was also evidently a moment for articulating a lot of other discontents and disillusionments within the British polity.

The long-term drift towards more managerial modes of government have also meant that big-picture strategies for the country have been in short supply, especially ones that establish a strong and compelling narrative about what the country embodies and how it can head there.

Put like this, relations of any kind with the EU – or any other part of the world – become functions of self-image and of actualisation: foreign policy becomes an articulation of values and interests where how we do things is informed clearly by what we are trying to achieve.

Precisely because such a strategy/narrative is all-encompassing, it side-steps the problem of voters (and politicians) not wanting to get into the Brexit thing again.

Likewise, it helps with any fire-fighting because it identifies strategic objectives that can guide responses and inform actions. Yes, things will still come up, but now within a framework that goes beyond ‘make it go away’.

The problem is obvious: who’s going to produce such a strategy?

Logically political parties are central to this, but partisan approaches also tend to be less durable, for all the reasons you might imagine.

Organic, bottom-up deliberation and pressure would be much more lasting and consensual, but incredibly hard to make happen in any organised way (by its nature).

But these barriers should not stop us from trying.

If we have learnt anything from recent politics, then it is that apathy and lethargy in political debates leaves the ground to whoever wants to fill the space. And often those that do are not the most representative of social or political interests, coming as they do from the more extreme parts of the spectrum.

In a week where even a country like Germany – which has hardly experienced the tumult of politics found in other states – can be the subject of a serious coup plot, we have to remember that democracy is founded on participation and engagement.

For citizens, that means being active in political choices and being thoughtful about who represents you. For media, that means facilitating robust public debate. For academics, that means providing evidence-led and impartial contributions from our work.

If the path forward on Brexit isn’t yet clear, then that should not stop all of us working to find ways to address the matter together. Otherwise someone else might do it for us.

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EU-UK monthly tracking: November

Posted on 1st December 2022 by admin

One good reason for doing this regular tracking report is that is means we (i.e. I) can abreast of what is an ever-changing landscape of interactions between the EU and the UK.

As a case in point, I’d rather missed that the past couple of weeks have been packed with meetings of the numerous Trade & Cooperation Agreement bodies. Possibly that’s a reflection of the lack of substance behind most of those, possibly because the key forum – the Partnership Council – is now some 18 months since it last (and, indeed, first) met.

As the graphics below point up, the architecture of regular interaction is present and the channels are open should both sides wish to use them.

But the absence of substantive shift in policy by Rishi Sunak means that while there is a stream of more informal work going on around the Protocol, this has not translated into a need to make more of the WA/TCA bodies.

As usual, you can follow the hyperlink below each one to a PDF version with clickable links to minutes and agendas for each meeting.

Meanwhile, one area that isn’t seeing any obvious activity is the UK’s stated project of removing Retained EU Law (REUL) from the statute books.

Since the government launched its tracker back in June, there hasn’t been a single instance of repeal, amendment or replacement that wasn’t already there.

The generous interpretation would be that someone’s not updating the tracker (the last edit is in September), but as I discuss in a thread on Mastodon (below) there’s probably more reason to think that the big block that remains in force is actually useful.

[and don’t worry too much about that ‘sensitive content’ warning – it’s just a graph, regardless of what the blur might look like to you]

Finally, you might want to sign up (again) to my podcast, A Diet of Brussels, which is now not only the very first Brexit-related podcast but also one of the few remaining ones.

I might not reach the production values of Brexit Republic (which I heartily recommend to you), but I will be producing new, monthly episodes that might be of interest as I think we’re moving into a new phase of things.

If that sounds like I might be becoming more positive, note that I’m calling that new phase ‘Long Brexit’…

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The structural dilemmas for British PMs over the EU

Posted on 17th November 2022 by admin

As Rishi Sunak nears the end of his first month in the job as Prime Minister, we might once again consider how much he might engage with, and progress, the European issue.

Like his predecessors before him, Sunak has both a vague sense that this is something that needs sorting, and no real plan about how to sort it. I leave it to others to muse further on the extent to which cakeist thinking – why can’t we just have all the good stuff? – has spread across Westminster, to the disadvantage of considered policy-making.

In broad terms, Sunak looks a lot like Liz Truss in his EU policy so far: warm words, but no desire/ability to move on substance. Unlike Boris Johnson, with his visceral unwillingness to be seen to do anything with the EU or ‘Europe’, Sunak and Truss both made the choice to try a more conciliatory tone and to be seen talking and working with European counterparts.

This is most clearly seen in the Northern Irish element of relations, as set out in the graphic below:

This post-Johnson shift requires some explanation, since it is likely to be the key dynamic for the rest of Sunak’s time in office.

As the next graphic suggests, there are several things going on here:

 

There are plenty of good reasons for Sunak to seek a settlement with the EU, especially over the Protocol, but these have to be balanced against the more localised constraints he faces. Backbench ERG types have already made it clear they are willing to cause trouble if he drifts off the current baseline, trouble that might be more logically focused on Sunak’s hold on the party leadership – which still looks shaky in the Williamson/Braverman/Raab context of poor ministerial selections – than on EU policy  per se.

The short-term squaring of this has been the warm words pitch: say the nice things, sign up to the collective actions on unproblematic (in the domestic sense) topics and hope to ride it out.

But as the graphic also notes, this can’t work for very long.

The passages of the NI Protocol Bill and the Retained EU Law Bill through Parliament mean that two major headaches are on their way in relatively short order. Each causes new points of tension with the EU just by their existence, even if provisions are not implemented: the hair trigger powers the government would hold are another clear substantive step back from the good faith pitch that Sunak wants to communicate.

Given no apparent willingness to pull or slow the Bills, Sunak will find that warm words aren’t going to suffice, especially if he really wants a resolution for Northern Ireland by the Good Friday Agreement anniversary next spring.

This is all sufficiently clear that choices will have to be made quite soon.

Sunak can step in to do something about the Bills, or he can invest major political capital in trying to mediate in Belfast, or he can chose to let it drift and hope for the best.

Brexit history suggests that the last of this is most likely, leaving everyone having to scramble to find another solution to a situation that never needed to have come about in the first place.

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Have you tried turning it off and on again?

Posted on 27th October 2022 by admin

Another month, another Prime Minister.

The ructions in Westminster might well have launched a thousand memes about lettuce, but have also clearly put any policy work on hold.

This holds true for British EU policy, where the only clear shift since Boris Johnson’s time in office has been a shift in discourse and framing: both Truss and Sunak have gone down the path of warm words and conciliatory statements, instead of a reflexive rejection of anything ‘European’.

Obviously, at this stage in proceedings, it is hard to make any firm judgements about Sunak’s intentions, but the early indications are that he will follow Truss in talking up the possibilities of working better with the EU, but without much scope for moving on policy substance.

This was already evident during Truss’ brief stint:

And it’s where I am now on Sunak:

As a reminder, EU policy matters, whether or not a Prime Minister has it as a priority item (which neither Truss nor Sunak do): it touches on multiple fundamentals of British polity, politics and policy, which both requires attention and imposes constraints on the ability to flex positions:

It’s also useful to consider how that plays out in the Northern Irish context across the post-referendum PMs: Sunak seems set to follow Truss rather than either Johnson or May.

The basic challenge remains one of a lack of strategic direction for European policy, something that a new PM will not change by itself. While the new tone will welcome, that cannot be a long-term solution for the problems that exist.

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WA/TCA Tracker: September 2022

Posted on 30th September 2022 by admin

After a summer hiatus for the Conservative leadership campaign, there was much expectation of Liz Truss following through on her stated plans for the Northern Ireland Protocol.

Recall that she had been the lead minister for the Northern Ireland Protocol Bill and that she had done much during the campaign to court the support of the European Research Group: everything seemed to suggest she would leap at the opportunity to follow through where even Johnson had feared to tread.

Of course, things haven’t quite worked out like that, at least just yet.

Firstly, campaigning isn’t governing, so options were open to Truss as she entered No.10:

But since then things have got much more difficult for her. The Queen’s death collapsed any space for ‘normal’ politics and then Kwarteng’s budget (which Truss backs very strongly) has been sucking out the air from all the non-economy topics for the past week.

Even before that budget, things looked rather mixed:

While we’re still very early days, it’s hard to see a constructive path with the EU coming from Truss or Foreign Secretary Cleverly, even if the former is going to the first European Political Community meeting in Prague next week and if the latter extended grace periods further. There are more bridges being burned than built right now.

So we wait a bit more and in the meantime note that the thinness of regular contacts within the two treaties continues.

PDF: https://bit.ly/UshGraphic78

PDF: https://bit.ly/UshGraphic85

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Does ‘make Brexit work’ work?

Posted on 7th July 2022 by admin

This post originally appeared on the UK in a Changing Europe website.

As a strapline for Labour’s EU policy, ‘make Brexit work’ has a lot going for it.

An echo of ‘get Brexit done’ – which served Boris Johnson and the Conservatives so well in 2019 – it both highlights how un-‘done’ Brexit is, and it offers the possibility of a more peaceful and constructive relationship with European partners.

Sadly, policy needs more than a slogan and Monday’s speech from Keir Starmer didn’t really offer much more than some soundbites and a very preliminary reopening of this running sore of British politics.

Having been beaten with that particular stick repeatedly over the past six years, Labour has been perhaps understandably shy of giving more ammunition to Johnson, especially when Tories’ internal squabbles seem to be having more of an impact than anything the Labour front bench might do.

In that sense, Starmer’s speech is an attempt to move back into the fray, to show that the party is able to have a more articulated policy on a major issue, while also not upsetting too many of the horses.

Central to this is not what more Starmer would do with the EU but instead what he would not do: re-join the EU, or the Single Market or the Customs Union, or sign up to Freedom of Movement.

Those red lines already place policy very much at the hard end of possible models of UK-EU relations, essentially no different from what Theresa May opened the Article 50 negotiations with 2017.

Just as May found that starting with red lines hampered her ability to negotiate the terms of withdrawal, so Starmer is also finding that there is not much he can offer as an improvement on the current arrangements.

Five steps to meh

The result is a five-point plan that is more of a sticking plaster than a recasting of relations.

Starmer is at least right to identify Northern Ireland as the starting point: the tensions over the Protocol and the long shadows cast by the introduction of legislation to unilaterally disapply its provisions are the immediate barrier to doing anything else.

That said, Labour’s resolution focuses solely on reducing the need for checks, through a veterinary agreement and an expanded trusted trader scheme. Both would indeed alleviate the situation but look less than adequate as ways to rebuild cross-community consent.

Likewise, the second key area of work – tearing down ‘unnecessary trade barriers’ – offers some interesting ideas, but in an incomplete way. While touring musicians have been winning headlines for their plight, there seems to be little recognition that work to ease their situation is a step towards the freedom of movement that Labour professes to oppose.

More significantly, non-divergence from current EU standards could ease trade, but if it is not coupled to a more dynamic alignment – where the UK follows future EU practice – then it is a meaningless gesture.

The third area talks of supporting the service sector and scientists through data adequacy, regulatory equivalence for finance and participation in Horizon, the EU’s flagship research programme. Again, all useful moves, but weakened by the continuation of limits on freedom of movement, which has made it harder to remain key European hubs of activity.

By contrast, the fourth area of security cooperation better reflects the mutual interest in improving joint work on policing, counterterrorism and cybercrime. But military cooperation is conspicuous by its absence, both in the narrow sense of work to support Ukraine’s war again Russia and more generally in terms of how NATO might fit into the picture: with membership of the latter about to become more closely aligned with EU members, how does the UK keep its voice?

However, it is the final key area that really casts doubt over all that has come before.

Starmer talks of making the most of ‘missed Brexit opportunities’ and using the flexibility of being outside the EU to make sure British regulations are adapted to ‘suit British needs’. Such ideas could easily have come from a Boris Johnson speech.

The big picture

This is the most cautious of first steps by Labour.

It picks up all the things that have been most egregiously problematic about the Conservative settlement and vows to sort them out, while still protecting the May-ite red lines to reassure swing voters that the UK isn’t heading back into the EU.

But it fails in two major ways.

Firstly, there’s very little in substance to differentiate from the Conservative offering. They too want to ‘sort out’ the Protocol and make the most of the flexibilities of being outside the EU. As for who might want unnecessary trade barriers, we do not know.

Yes, the tone is different and less conflictual, but with an electorate increasingly of the view that Brexit has been a negative, is that enough to draw voters to Labour?

However, this pales in significance to the bigger failure: the absence of a strategic vision for UK-EU relations.

While each of the problems outlined by Starmer matters, they are not nearly all that matters in finding a resilient and constructive relationship. With the EU’s trust in the UK extremely low, there will have to be an extended and extensive programme of rebuilding confidence that the UK is a partner worth doing more with. The complete absence in the speech of why the EU should agree to any of these ideas was stark and will not be aided by the opportunistic approach outlined.

Just as May and Johnson have struggled to work out what Brexit is for, so too is Starmer now in the same trap. Without a vision of what he sees as the UK’s place in the world, he too will find that he is battered about by circumstance and that the piecemeal logic outlined in this speech will tie him up in knots, sooner rather than later.

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