Our EU divorce: Checking in from across the Channel

By Flora Hutchings,
Best for Britain's Head of External Affairs

Parliament has hobbled into its summer recess, a break of 40 days and 40 nights which you may view as a godsend or an outrage, given everything that’s going on.

Either way, it’s an appropriate time to take stock of where we are in terms of the progress being (or not being) made in terms of Britain’s divorce from Europe.

Of course, countless column inches and broadcast hours have been expended on the British perspective but the European view inevitably receives somewhat less coverage in the UK.

MEP David McAllister – he’s a German politician who holds both German and British citizenship, if you don’t know about him – shed welcome light on the situation this week, in a webinar with the Institute of International and European Affairs.

Here are some key thoughts from that event, to provide a little insight into how our European neighbours view the state of the post-Brexit process.

What’s the deal with No Deal?

Come January 1st, it’s all-change for Britain, whether a deal with the EU is struck or not.

There will be new border restrictions, new trading rules and new frictions introduced to business transactions between the UK and Europe.

McAllister says the consequences for both citizens and businesses will be ‘broad and far-reaching’, something which should not be a surprise to anyone who has been following the Great European Divorce, and yet the implications of which are still only dripping out to many in this country.

More talking while there’s still tick-tocking

The clock is running down on negotiations, and we don’t have until December to get our paperwork in order, because there are procedural hoops to jump through to get any agreements signed off, and they will take time.

The EU’s chief negotiator, Michel Barnier, has said both sides need to have a ready text negotiated by October 31st.

As McAllister notes, this ramps up the already enormous time pressures and, of course, we cannot say whether there will actually be an agreement or not.

The EU accepts, but remains frustrated with, the time-frame. The view is that the UK has set an ‘unfair timeline’ for leaving, and there is great frustration not only at this self-imposed cut-off point, but also at Britain’s apparent unwillingness to engage constructively, all while the UK is planning to set up as an independent shop on the doorstep of the world’s largest single market.

That view has been echoed by Barnier who, after the latest talks, says a trade agreement at this point is ‘unlikely’.

His UK counterpart, David Frost, says ‘considerable gaps remain in the most difficult areas’ following this week’s talks in London.

Whether we like it or not, the European Parliament will have the final word on any agreement between the UK and the EU. If we leave without a deal means the European Parliament will be involved in agreeing emergency legislation and contingency measures for citizens and businesses.

Give and take: Progress and prevarication in negotiations

There is a real danger that negotiations will remain stalled unless the UK makes ‘real and concrete openings’, according to McAllister. 

It is broadly accepted that political leadership is utterly essential when it comes to making progress on the substance of a deal, and that means an awful lot is riding on whether Boris Johnson wants to get a deal done.

For its part, the EU wants a Free Trade Agreement (FTA) at the ‘core and base’ of a deal, believing that the way forward is for Britain to stand by the commitments made in the Political Declaration.

On the subject of an FTA, the EU Parliament is ready to agree an ‘ambitious, modern and wide-reaching’ FTA with the UK but with key conditions.

These conditions include, inevitably, ‘comprehensive, binding and enforceable’ level playing field’ (LPF) provisions, a ‘complete, sustainable and balanced’ agreement on fisheries, and a ‘robust, single and coherent’ governance system, with the European Court of Justice (ECJ) as sole interpreter of EU law provisions.

This week, Barnier reiterated that considerable gaps remain between the UK and EU on the LPF arrangements, adding: ‘Again, the UK did not show a willingness to break the deadlock.’

While Britain’s negotiating problems with these issues are well known, McAllister is at pains to point out why the conditions exist, saying: ‘To be very clear, our (EU) rules are not dogmatic – they are simply a guarantee to protect our businesses and our citizens against unfair competition.’

The law is not negotiable

The proposed role of the ECJ is, of course, a huge sticking point but the EU view is as clear as Alpine glacial water.

Europe stands strong in its desire for a single, overarching governance framework which ‘fully preserves the autonomy of the EU’s decision-making and legal order’, with the ECJ in Luxembourg as the sole interpreter of the law and single market. 

McAllister emphasises that this is ‘not a negotiating position or a bargaining chip but a constitutional requirement’.

When it comes to compromise, there is ‘no appetite in Brussels for individual agreements’ with a multi-governance framework.

Of course, Johnson has ruled out allowing the ECJ any say in the lives of British citizens and businesses but a ‘innovative solution’ is needed so both sides can agree on a dispute settlement mechanism.

And there is a warning not to forget about how significant the fisheries sector is in all this – McAllister says an agreement on fisheries has to be a ‘fully integrated part’ of any overall trade deal, and is hugely important for the Netherlands, Denmark and France. 

Following this week’s EU-UK London talks, Barnier maintains that the UK’s position on fisheries is ‘simply unacceptable’, adding: ‘On fisheries, the UK is effectively seeking near-total exclusion of fishing vessels from UK waters.’

WA, NI, oh no

The EU believes a new partnership is possible only with an ‘effective and faithful’ implementation of the Withdrawal Agreement (WA), which would be the yardstick’ of any agreement. 

McAllister describes implementation of the WA as being the ‘first button’ on a shirt, with the second button being an agreement on the future relationship. But many more buttons will need to be added.

He adds a German proverb: ‘You have to get the first button right because, if you don’t get the first button right, you can continue buttoning the shirt, but [the result] will never be positive – whether you use rocket science or not.’

Aside from whether rocket science is an appropriate aid to buttoning shirts, it is clear the issue is of critical importance.

Some progress on technical issues has been made in the specialised committee on the Northern Ireland protocol but McAllister says further movement is needed if negotiators are to move from ‘aspiration to operation’.

Europe will continue to demand a detailed timeline from the British Government, which ‘needs to be more forthcoming’.

The NI protocol must be fully operational on January 1st, says McAllister, adding that it is of ‘paramount importance’ that the UK engages in technical discussions covering the full array of issues under the protocol.

Although the UK Government has shown commitment to resolve issues, the EU view is that more needs to be done.

It is hoped that institutional requirements such as an EU Commission ‘back office’ in Belfast can be introduced quickly – and McAllister emphasises that this would be ‘merely a technical back office to oversee technical issues, and not a diplomatic presence’.

There is also a clear warning about Europe’s view on how important a solution to the NI problems is: the European Parliament is ‘very vigilant of protection of citizens’ rights in the WA’.

If I was a betting woman

There is still cautious optimism on the European side. McAllister is hopeful that a deal will be reached ‘in the interests of companies and citizens’ on both sides of the Channel and Irish Sea.

The sixth round of talks will be, of course, crucial, and the European Parliament is ‘fully behind’ Barnier and the EU Council’s negotiating mandate. 

From a European perspective, there is nothing positive about Brexit but the EU must ‘accept political reality’ and make the best of the situation. 

McAllister is confident the UK will remain an important trade partner and an important NATO ally.

He considers it unfortunate that security was not included in the framework for a deal – that was the UK's decision – and hopes it can be bolted on after January 1st.

And there you have it – no great surprises, some clear red lines and a genuine desire to get a deal agreed that works both ways.

Parliament may be in recess but the behind-the-scenes work continues, as those winter deadlines loom ever larger.

We need to agree a deal with Europe – it’s easy to contact your MP and gently encourage them on this front, just pop over to our Hey MP! online tool.

There is, as they say, much work to be done.

Flora Hutchings
Head of External Affairs, Best for Britain

Follow us on Twitter at @BestforBritain