The good old ‘scaffolding’ metaphor…

Now we’re back into the normal flow of things, I’ve been giving more talks about Brexit, and writing pieces for other sites. As I decried in my previous posts here (and here), a major challenge for pursuing Brexit is that there is no clarity on either side about what the objective might be.

That in turn makes it almost impossible to know how to get to a conclusion of any kind, let alone one that meets the needs of the various negotiating parties.

At the same time, I find myself increasingly bored with having to say that there’s no real plan on the table and that nobody is trying: it’s easy to take an ‘academic’ perspective and point out problems without offering any solutions. In that spirit, I’m going to offer a solution to you, right now.

In essence, what is proposed is a mechanism that could lead to a new UK-EU relationship. Recall that Article 50 only deals with immediate arrangements for a member state’s exit, running alongside another negotiation for the future. Practically speaking, the points below represent the second half of that Article 50 agreed text.

The first half would deal with the immediate practicalities of leaving – employment of UK nations in the institutions, re-location of agencies, etc – Andrew Duff and David Allen Green are good on these elements (here and here). Think of this as the partner moving out of the family home and the immediate changes that happen (‘I’m taking my toothbrush and a suitcase of clothes’): what follows is more like the divorce procedings proper.

The proposal is predicated three core assumptions. Firstly, that the UK must leave the EU, as per the referendum result. Secondly, that the EU27 are willing to tolerate  some ambiguity and flux, if it maintains a working relationship with the UK. Thirdly, that since the UK is a member state now, it is easier to work from that starting point than one of no relationship at all.

I accept now that all three assumptions can be (and are) challenged, but in the absence of a solid and agreed alternative agenda, there is still a good chance that this approach might be acceptable.

In particular, the model doesn’t make any assumption about what the final relationship will look like. Rather than just tell you what my ‘red lines’ are – which is of little interest to anyone but me – it is aimed at encouraging a rolling debate in the UK (and the EU27) about where issues specifically lie and ways in which to address them.

The Proposal

Enough set-up, now for the detail. The text would cover the following core elements (comments in italics):

• Agreement would close Article 50: UK would cease to be an EU member state upon its entry into force (which would need unanimity, given the following content);
• UK would commit to continued respect of all current EU acquis, plus all further such, subject to revision as below. This address the issue of transitional states between the UK and EU;
• EU would commit to respecting UK’s transitional status when agreeing new decisions, with institutionalised dispute resolution mechanism (including sanctions). It would also grandfather UK’s participation into existing third-party agreements until revised terms could be agreed by UK. This addresses UK-third party relations in transition;
• Creation of a standing EU-UK committee at ministerial level until conclusion of final agreement;
• The UK will notify EU of intention to dis-apply areas of acquis. EU will provide binding and reasoned opinion on any knock-on effects within 3 month timeframe. UK would then confirm dis-application, at which point would come into effect, with detailed annex appended to this agreement. Reversal is also allowed, with Commission confirmation of compliance with then-current acquis. Budgetary adjustments would also be made, drawing on existing principles for allocation of income and expenditure. This is the main mechanism, with the EU being able to minimise challenges to the integrity of the four freedoms, while the UK is able identify specific de-applications of EU law/acquis. The reversal option is there to recognise that this will be a fluid arrangement that might need to adapt to changing circumstances;
• Requirement that UK leaves no longer than 6 months between notifications, otherwise EU will assume fixed UK position and will treat then-status quo as the legal text for the new relationship. UK can also notify EU that it has now reached final position, with same consequence. This aims at both ensuring a high level of interaction between the parties and avoidance of kicking matters into the long grass; it also short-circuits ratification issues long the line;
• Subsequent amendment of agreement would require amendment under agreed mechanism, but one that is more ponderous than the rolling mechanism outlined above. Again, in the spirit of a need for dynamic adaptation, this is simply the conventional amendment mechanism found in all third-party agreements;
• Optionally, agreement that should UK wish to re-join EU, an abbreviated re-accession procedure could be followed, with broad principle of a priori compliance with acquis (except in excepted areas), but continued Article 49 requirement to accept full requirements of membership (i.e. no a priori renewal of current British exemptions). The particular status of the UK as an ex-member state does matter, as for the foreseeable future it will continue to apply very substantial amounts of the acquis: however, this clause would sit within the current treaty provisions and would be a marker of intended on-going close relations.

Some final comments

This is a sketch of an idea, but one that I want to come back to. I appreciate that many readers will have problems with it, and I’d like to read those. Recall however that the intention is to establish a framework, not a particular objective. For this to work, it needs a British government that is sufficiently engaged with the matter both to support public debate within the UK and to discuss matters with the EU27. It also needs an EU27 that feel that UK will be a reliable negotiating partner: if not, then it is unlikely to support this kind of approach.