There is lit­tle trust on all sides now. A sun­set clause might be use­ful

The Sunday Telegraph - - Brexit Turmoil - By Thomas Sharpe QC

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’

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