There is little trust on all sides now. A sunset clause might be useful
It will take more than a day or two to understand the short text of the Political Declaration setting out the future framework of our relationship with the EU.
One reason for this is that it says everything and nothing.
To resurrect an old EU phrase, it is “variable geometry”.
It is a set of complex contingent possibilities which boil down to a central proposition: the “closer and deeper the partnership, the stronger will be the accompanying obligations”.
So the more the UK aligns itself with EU rules and regulations, accepts the jurisdiction of the Court of Justice in certain matters, cedes rights of access to UK fishing areas “within the context of the overall economic partnership”, accepts EU agreement on “relevant tax matters”, follows the EU on climate change, maintains acceptance of the European Convention on Human Rights, maintains competition and state aid regimes to ensure a “level playing field”, among many other areas, the greater the chances of a so-called “soft Brexit”.
Some of the declaration is welcome: reassurance for UK citizens living in the EU27 is long overdue; cooperation on sharing intelligence information, catching criminals and counterterrorism is good for all parties. Mutually sensible arrangements for aviation, road and rail passengers, and road freight are equally welcome.
None of these non-economic matters have anything to do with the integrity of the “single market”. They simply represent “statecraft”.
If the UK can be criticised for poor preparation, it is also worth pointing out that all of this could have been announced by the European Commission long ago and would have served to build up trust. But they did not.
This is, of course, the result of the commission’s cod-legalism but it illustrates a striking feature in the whole affair and that is the near total absence of trust everywhere. It is the commission which should command trust. Yet, by its obduracy and refusal to offer comfort to UK citizens elsewhere in the EU, obviously to compound the pressures facing the UK, or for example its refusal to match the UK’s unilateral actions on permissions in the City, building up trust is not a commission imperative.
Throughout, the process has been one of EU opportunism to reap some benefit from the UK exit and plainly to send an appropriate message, much as the Berlin Wall advertised the charms of East Germany.
And the commission expects the UK to trust that obligations of “best endeavours” in Article 184 of the Withdrawal Agreement and “good faith” in Article 138 will be sufficient to conclude a durable agreement by the end of 2020. They are not.
Indeed, if they were to go to the arbitration process to deal with disputes, there would doubtless be opportunities for the matters to be judged to be EU law and thus be the exclusive and final prerogative of the Court of Justice.
In a commercial situation, heads of agreement are commonplace and any dispute would be settled by neutral arbitrators or the courts, not the court of one of the parties. Given that the May plan is to pay £39billion up front, the UK is taking a lot on trust.
As it stands, the interim arrangements carry on until the EU is satisfied they should be replaced by the declaration. But the declaration is a series of choices and it is doubtful if the EU would readily accede to arrangements less favourable than those in the Withdrawal Agreement.
If the EU refuses to provide an exit mechanism to the agreement, assuming it is incorporated into UK law, Parliament can add a “sunset clause” repealing it if no satisfactory trade agreement is in place by a given date and so reinstate the “no-deal” provisions in the Withdrawal Act.
This might focus minds and fill the gap caused by the absence of trust.
Thomas Sharpe QC is a specialist in all aspects of EU, competition law, WTO trade disputes, UK regulatory proceedings and investigations and commercial judicial review.
Sir Rocco Forte has accused Theresa May of bungling Britain’s exit from the European Union, describing her as an ‘arch-Remainer’