The Devil in Detailed Wording: EU negotiating guidelines and clause 11

Richard Parry discusses the attempts to express political objectives in secure legal wording as Brexit progresses
 
On 20 December 2017 the  EU Commission set out its draft supplementary negotiating guidelines for the next phase of the Brexit negotiations, during which the arrangements for UK withdrawal on 29 March 2019 will be finalised and the course set for the end-state of relations following the transition period. The European Council’s final guidelines adopted on 29 January 2018 are very similar, and usually word for word.
 
But not quite. On Ireland, the Commission’s softening phrase about the detailed arrangements ‘some of which would be translated in the Withdrawal Agreement, others in the framework for the future relationship’ is omitted. UK attendance at EU meetings during the transition period is now only to happen ‘exceptionally, on a case-by-case basis’. The Council adds the sentence ‘during the transition period, the UK may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorized to do so by the Union’. Consultations on fisheries during that time are now to be ‘in full respect of the Union Acquis’ and are to include the fixing of total allowable catches but not their allocation.
 
This suggests that UK diplomatic assumptions that a hard-line approach by the European Commission and Parliament would be restrained in the Council by more pragmatic EU27 governments is simply not happening. The member states are happy to line up behind Michel Barnier, to harden rather than soften some wording, and to defer to one another’s sensibilities on emotive matters like Gibraltar and Northern Ireland.
 
This is straining the UK Cabinet’s grand compromise of 2017 in which total exit from all EU institutions in March 2019 would be balanced by virtually unchanged transition arrangements for around two years. This had the corollary that Remainers would not seek to extend the notice period for withdrawal and Leavers would have to bear with a ‘vassal state’ phase of taxation without representation. Both sides could live in hope of a successfully negotiated end state. The Council maintains the Commission’s ambiguous phrase that the transition ‘should not last’ beyond 31 December 2020, which leaves some room for manoeuvre but suggests political cliff-edges for both sides in both early 2019 and late 2020.  
 
Meanwhile the controversy over clause 11 of the EU Withdrawal Bill continues as it moves to the House of Lords, with another groundhog day of inconclusive talks between UK and Scottish ministers on 1 February. As Stephen Tierney explains in his blog of 29 January the clause forbids the devolved legislatures from modifying retained EU law (direct EU legislation, or EU-derived domestic legislation) unless they had legislative competence to do so immediately before Brexit day. Put more crudely, previous EU powers in relation to devolved responsibilities would be put in a parking lot to which only the UK Government had the key.  
 
The UK government can claim credibly that its record of expanding devolved powers to Scotland in 2016 and Wales in 2017 shows no general ‘grab back’ strategy. What it wants is to retain those parts of devolved functions (agriculture, fisheries, environment etc) that would not have been devolved in 1998 if the UK had not been in the EU. These are near-impossible to define. The EU’s role, and the reserved powers model used in devolution legislation, curbed in 1998 the instinctive expansive definition by UK departments of what might be considered necessary common frameworks for the operation of the UK economy as a single market. These constraints are now weakened. When faced with the issues in a post-Brexit context, UK departments are likely to release powers with reluctance and might discriminate in favour of English industry and agriculture. 
 
The fact that the Scottish and Welsh governments are making hay side-by- side despite their different political complexion speaks volumes. This is a moment of great political opportunity for them as they hold a spanner over the Brexit works. The ‘no detriment’ principle applying to transfers of functions and tax powers – that the fact of transfer should not in itself leave either side better or worse off – is implicitly in the air with clause 11. But without money as a denominator this principle cannot readily be operationalised. When both the basis of agreement and the form of its expression are in play, time may be a healer and resolver – but it is precisely time that is now the scarce resource.  In both Brussels and London we are grappling with issues in which every side fears the possibility of being perceived as a winner or loser, not quite knowing whether to sign off on a particular wording to achieve its political purpose. 

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post by Richard Parry
University of Edinburgh
2nd February 2018
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