Simon Usherwood / Feb 2020
If the end of Article 50 was seen by some as the end of the worst of the horrible business of Brexit, with all the tensions and difficulties to be consigned to a filing cabinet and forgotten about, then the publication of the EU’s mandate for the coming round of negotiations with the UK points the reality of the situation: the water is never truly under the bridge.
More particularly, the repeated failure of British politicians to recognise that domestic grandstanding has compromised levels of trust on the part of the EU, or indeed to consider that the EU has actually paid plenty of attention to the travails of recent years, has now translated into material consequences in negotiations.
Rather than treat the internal British debate and the UK-EU negotiations as fundamentally interconnected, too many in London have simply pursued one or other arm with scant thought as to the implications for the other.
Put simply, if the EU hears senior British ministers talking about the Withdrawal Agreement as a set of options, rather than the binding legal instrument it is, then they might be expected to take action on that.
In the case of the mandate, this is seen in the way that while the substance remains unchanged from the initial public draft, the language around various provisions has become more firm and less flexible.
Of course, that substance already carries in its DNA a concern about implementation and compliance. The ‘overall governance framework’ that it offers as an umbrella for the various substantive elements does not simply allow for much simply additions down the line but also ensures a more robust system for ensuring enforcement and dispute settlement.
Likewise the wording of the section on dispute settlement backs this up very firmly. When there is a failure to comply with a resolution, the EU would want to be able to suspend not only part or all of the specific agreement, but also any additional agreements. This would make it even less attractive to either party to not accept the process, since the effects would not be bounded by the specific area of cooperation.
Such a robust set of dispute settlement remedies may take a bleak view of what might come in the future, although it does also potentially reduce the likelihood of being used, so substantial might be the penalties.
As the EU itself says, it would like ‘to have as close as possible a partnership with the UK in the future’, but it also wants to ‘ensure the protection of [its…] interests’.
That protection is become all the more clear with the final mandate text, as can be seen in a number of key provisions.
The most explicit example of this comes with the tighter language around fisheries. Not only is there a reaffirmation of the need for an agreement in this area simultaneously with the trade element, but the Union now seeks an ‘upholding’ of access to fishing waters, rather than just a ‘defining’.
While this does not mean that the Common Fisheries Policy has to be maintained over British waters – an objective even the most ambitious Commission negotiator might baulk at – it does point to a very significant translation of the effect of CFP measures into whatever future system is designed.
This has also fed into new language on the need for ‘parallelism’ across the various negotiations that will be occurring from next month. With upwards of a dozen streams of simultaneous tracks in motion at once, the aim here is to ensure that there is none of the cherry-picking that so exercised Brussels in Article 50: getting stuck on one element means getting stuck on all elements, even with a looming deadline.
As much as the UK as sought to contain that danger by asking for a very minimal package, the ramping up by the EU of this provision suggests limited confidence that those points not agreed during this period can and would be picked up again by a British government that seems more focused on having a ‘deal’ (of any sort) than one that might produce a settled new relationship.
But all of this pessimism, we should also recognise that a welcoming hand has been partially opened in one of the hot topics of the negotiations.
The notion of a Level Playing Field has become central in the discussion of late: the idea that both sides should commit to uphold their standards in areas such as environmental protection or workers’ rights, and not compete on that basis.
The impression of recent months has largely been that the Commission would want to ensure this by way of the UK committing to continue using EU’s rules in these areas – not least because it currently uses them now. The UK’s view has largely been that there would little point in leaving the EU only to then continue to be bound by its decisions.
Some of this appears to have come down to semantics. The British government appears more concerned to have the power to diverge, rather than any actual plans so to do: as it has noted, its levels of protection are often higher than the EU’s.
The EU mandate now talks of ‘sufficient guarantees for a level playing field so as to uphold corresponding high levels of protection over time’. Thus the UK could have its own rules, but ones that can be mapped across to the EU’s. This doesn’t solve the problem of how to assess equivalence, and what happens if one party wants to raise standards but the other doesn’t.
However, all of this does point up the need on both sides of the negotiating table to not simply treat the other with suspicion, but also with respect and a willingness to find different ways to allow everyone to gain from a new agreement, rebuilding the trust and cooperation that will be essential if EU-UK relations are not to fall into a new cycle of recrimination and division.