The recent visit of Prince William and Princess Kate, the Duke and Duchess of Cambridge, to Europe was evidently a charm offensive to underline the deep links that exist between Great Britain and different countries of the European Union (EU), particularly those in Western Europe. Coincidentally, the EU's Brexit negotiator Michel Barnier urged Britain to provide more clarifications on key issues after the second round of talks wrapped up in Brussels with "fundamental" differences still clearly present.
Media reports have suggested that Michel Barnier, a former French Foreign Minister, after his talks with his British counterpart David Davis, a long-time Eurosceptic, had reflected that the two sides were still at odds over Britain's divorce bill and over the rights of European citizens living in Britain. Apparently, clarifications are still awaited on issues like "financial settlement, citizen's rights and on Ireland" and whether Britain would acknowledge jurisdiction of EU's top Court with regard to the rights of the three million European citizens living in Britain.
Davis has, however, remarked that the talks were "robust but constructive" and that there was "a lot left to talk about".
The next meeting, scheduled for August 28, will focus specifically on removing existing differences and that "a solution" might be found on the basis of "flexibility from both sides".
The EU is stressing on quick removal of differences by October 2018 so that the European and British Parliaments can approve the deal in time for Brexit day, which is scheduled for March 29, 2019.
Analysts have tried to explain the nuances that are being taken into consideration. The salient points are as follows:
(a) Citizens: References in this regard need to be understood within the context of Article 50 and is now in the hands of the lawyers. The EU appears to be aware of the apparent contradiction between, on the one hand, wanting to treat the UK like a third country and, on the other, insisting on permanent, continued direct jurisdiction of the European Court of Justice (ECJ). They are realising that extra-territorial jurisdiction of the ECJ cannot simply be presumed. The British Home Office, for its part, also knows that if its acclaimed goal of reciprocity of treatment is to be achieved, British citizens resident in the EU cannot lay claim to more rights under EU law than EU citizens who stay on in Britain enjoy under British law. Accordingly, accommodation is being sought between the two sides, over outstanding questions related to interpretation and applicability of EU law in the UK.
(b) Ireland: This question has arisen within Phase I of the sequence of the Article 50 negotiations concerning the EU's new frontier with Northern Ireland. The ultimate solution with regard to this intractable question will require a political solution. It is generally agreed that the situation on the ground will be eased if the UK chooses to stay in the EU customs union. A flexible interpretation of Article 50 could then enable the emergence of a provisional solution.
(c) Finance: This issue has difficult connotations. On May 24 the European Commission published its proposals for the criteria to determine what it calls a 'single financial settlement'. However, there has been no official response from London as yet. Without a bankable promise from the UK on the budget, the European Council will have difficulty in judging whether "sufficient progress" is being made on Phase I to allow it to trigger Phase II. And unless Phase II starts there will be no political discussions on defining the framework for the future relationship between the UK and the EU. Consequently, without agreement on Britain's final landing zone, clearly defined and mapped out, it will be impossible to proceed towards a negotiation of the transitional arrangements. Therein lies the rub because the transition period can only be designed once it has been decided how long the UK will continue to honour its current budgetary obligations under the EU's multi-annual financial framework. The UK will also have to choose in which EU agencies and spending programmes it wants to have continued participation. Full agreement on the matter of money, therefore, is unlikely to be achieved in Phase I and suitable progress can only be made in this Phase if the UK can make up its own mind about its long-term financial engagement with the EU. Commentators have observed that for the moment, divisions within the present UK government are hindering its Treasury's efforts to respond substantively to the Commission's negotiating position and creating a conundrum. This raises the possibility that the European Council might not be able to take the required decision at its October meeting to move to the second, less technical and more political phase of the Article 50 exercise. The importance of this exercise arises from the fact that Brexit is likely to create a Euro 10-billion hole in the EU's annual revenue.
(d) Transition: Lack of a concrete decision on the transition arrangements is likely to seriously impact on business in Britain, whose opportunities for investment are already declining. In any case, the longer it takes to put the transitional apparatus in place the less valuable the transition period will become. Economists have indicated that investors will not hang around the City of London waiting for clarity and purpose to emerge from Whitehall. British manufacturing industry, it must be remembered, still badly needs to secure its supply chains over the medium term by retaining membership of the customs union on a provisional basis, at least until a new free trade agreement is ready to enter into force. Unless these matters of the budget and the transition period are quickly resolved, the Brexit escapade will likely inflict vast damage to the British economy.
A British response will also be required with regard to the proposal of the European Commission made on June 28 that a Joint Committee be set up to manage the actual Brexit process. This envisages a joint transition authority that will ensure suitable execution of various facets of the Article 50 secession treaty; adjust the secession treaty to reflect the evolution of EU law; ensure an agreed process aiming to find a settlement to political and technical disputes before they get to litigation and also "perform any other task conferred on it by the Withdrawal Agreement". Those other tasks will include the need to synchronise the withdrawal of the EU regime from the UK with the passage of the UK's own Repeal Bill, which will transpose the European acquis into domestic law and put in place a home-grown British regulatory regime with new enforcement powers. Only close coordination between London and Brussels will avoid any possible legal vacuum in this respect.
(e) The Court: British Prime Minister Theresa May in all likelihood will need to prepare herself and her coalition to agree to make a major concession on the future role of the European Court of Justice (ECJ). This will be insisted upon because as long as any transitional period lasts, the ECJ will retain its current powers to ensure that relevant EU law is applied appropriately in the UK. As a result, the UK will have to accept the legal obligations that flow from those rights. This temporary extension should not be difficult to comply with as British courts have been faithful adherents to the EU legal order for over forty years. It may be mentioned in this regard that the European Commission has already confirmed that the UK throughout the transition will retain its rights of access to the Court in Luxembourg for seeking redress. Jurists have noted that a new type of joint UK-EU juridical tribunal could possibly be envisaged later on that might replace the direct jurisdiction of the ECJ.
At this time, the British government and Parliament appear to be recovering slowly from the double hangover of the 2016 referendum and the 2017 general election. This is affecting their ability in being able to agree on strategic decisions.
Nevertheless, the EU 27 needs to have patience with regard to potential joint initiatives. They need to reflect on the future not just of the smaller European Union but of the wider Europe.
To conclude with some observations made by Dr. Fabian Zuleeg, the Chief Executive of the European Policy Centre, an independent think tank. He has pointed out that "back in Britain, the turmoil is obvious, with different members of government taking diverging views, suggesting, at times, that a soft Brexit or a transition arrangement might be possible, even if it means concessions on the role of the European Court of Justice (ECJ), the exit payment, the rights of EU citizens and even (temporarily) continued freedom of movement of EU citizens. Adding to this is a chorus of voices outside government demanding that the UK reconsider its position, following the indecisive general election". As a former Permanent Representative of Bangladesh to the European Union, I feel that he has also correctly warned that "the assumption that the EU27 are willing to accept any deal to avoid Brexit is misguided. Not only are there red lines that they will not cross, but the clock is ticking as well. The time left to strike a deal is limited. It is for the UK to come up with workable solutions as otherwise the UK will end up with no deal at all. The reason that the EU27 are willing to accept this negative outcome is that greater goods are at stake: the unity of the EU27, the integrity of the Single Market and the future of European integration".
The writer, a former Ambassador and Chief Information Commissioner of the Information Commission, is an analyst specialised in foreign affairs, right to information and good governance.
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