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In less than ten months, the UK will become a third country. The question of where we are with the Brexit negotiations today has more urgency than ever.
Technical negotiations are taking place. However, even if there is progress at technical meetings level, the lack of progress regarding governance of the withdrawal agreement and the Irish border issue means we can’t see a politically meaningful outcome.
The priority should be the remaining separation issues. We should have aimed at reaching, before the June European Council, what we used to call ‘sufficient progress’. Clearly this will not happen. Among the unfinished business issues the most difficult ones remain. I think here first of all about the governance of the withdrawal agreement, geographical indications, data protection, police and judicial cooperation on criminal matters and the Union’s administrative and judicial procedures. The European Parliament is in particular concerned by the lack of progress on governance where, as well as the joint committee that has already agreed, the issues of dispute settlement, the role of the ECJ regarding the European law interpretation and the issue of direct effect (so far agreed only for citizens provisions) matter strongly.
The good news is that the sense of urgency has reached the British side. Many new documents have been published by the British government. The proposed temporary customs arrangement seems to reflect the intention of the British side to address the Irish border issue. This proposal looks like the British version of backstop and at the same time like the extension of transition.
Unfortunately, it is also a proof of a lack of mandate to finalise the negotiation of the Irish issue. In general, I would say that the documents which exist in the public space do not solve the regulatory alignment issue.
We remember also that in the Joint December Report there are pledges on both sides regarding the Irish border. The current British proposal does not respect the pledge. It does not eliminate the risk of a land border coming back. Regulatory alignment that would cover issues beyond customs and taxation, as we have in the Commission backstop, is not addressed there either.
In the EU backstop, Northern Ireland becomes part of the EU customs area. This is possible because Northern Ireland is a small territory. And the EU would have surveillance and enforcement responsibility. Unlike in the EU backstop, the UK proposes either the UK becoming part of the EU custom area or establishing a new customs area that would include the EU and UK. Whatever the choice might be, the EU common trade policy would not be binding for the UK except where needed for the new custom mechanism.
So I would say that there is definitely nothing yet from the British side that could replace the EU proposed back stop. Any back stop mechanism must be permanent, otherwise it does not meet the backstop logic. What is on the table is rather confusing and ignores regulatory issues. A lot of effort would be needed to make it operational. But it also lacks responses to many issues. And then, of course as seems to be the intention, extending a backstop to the entire territory is for the Union unacceptable, due to the threat to the integrity of single market. Maybe the British objective has been just the extending of the transition period.
The grand, untouched issue is of course the framework for the future relationship. There is no mandate yet on the British side for this, the publication of the white paper has been postponed until July. My judgment is that the moment the Brits have finally a mandate to move forward we are going to be ready. We have the negotiating mandate. But we definitely need a detailed proposal on the future. For the time being what we hear is either too general or not realistic. Both the British Parliament and on the EU side both the Council and the European Parliament will ask for details.
Even if so many difficult issues are still on the table or not yet even on the table, the sense of urgency seems to have reached those responsible for the process. However, while determined to leave, the UK seems eager to keep all the benefits of membership. But Brexit comes at a cost in terms of benefits. Red lines are red lines. Blaming the EU for not accepting the logic of ‘cake and eat it’ is not fair. The UK will have to accept the consequences of becoming a third country.
Not only technical but also political talks have to be intensified. Knowing the European tradition of negotiations, I am convinced we are ready to get locked in a room for as long as it takes to do it on time. But we would have to be in this room together.
Prof Danuta Hübner MEP is Chair of the European Parliament’s Committee on Constitutional Affairs and former European Commissioner for Regional Policy. She is Advisory Board member of the Scottish Centre on European Relations.