8 September 2020

The UK has every reason not to rely on Brussels’ good faith

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The EU is to rules what a mouse is to an old pantry door. So no one should be surprised that Downing Street has reportedly been looking at making British law underpinning future UK-EU arrangements airtight. The European Commission and some MEPs might not like that, but they only have themselves and their own twitching whiskers to blame.

The Withdrawal Agreement, notwithstanding some subsequent improvements, still contains some pretty major flaws. As well as the political pitfalls, a critical legal ambiguity lies in the overspill between EU rules as they affect Northern Ireland and the second order implications within Great Britain, since Ulster is to be in the heart of the Venn diagram of two customs and two regulatory unions. 

We are yet to see how the UK’s delegation to any arbitration panel will shape up. The listed qualifications required of panellists anticipated the UK side would unthinkingly pack their team with people who’ve worked on the EU payroll. I doubt any of the UK’s own nominees, had they been appointed under May, would even know any Brexit supporters, let alone have voted to leave themselves.

But even with a dispute settlement system operating in a more balanced way, there is a strong likelihood of interpretations between the EU and UK sides seriously diverging over what the text allows. We can anticipate early requests for clarification on points of EU law to the Luxembourg Court, which itself may be unwilling to accept the supremacy of the panel on key points. 

The prospect of a fundamental dispute arising is widely recognised, and while views differ on how it will play out and on what scale, the fact remains that it is a recognised risk. It would be folly in such circumstances for the UK to trust purely to the disinterested impartiality of an alien court, the neutrality of an institution openly aspiring to increase its own power, and the good faith of a bureaucracy that hounds its own whistleblowers.

The nature of the EU itself is a critical factor. It is not a simple trade system with a few dozen assigned desk officers. It is a vehicle comprising political institutions, driven by a law-making engine, whose gears are formed by a complex judicial structure. Future UK-EU arrangements, if they are governed by a complex text, need to factor in that these mechanisms are designed for forward motion and ensure the driver also has a brake. Anyone harbouring doubts need only recall the legal activism of the last five years, and the role UK judges have had to play when summonsed by aggrieved Arch-Remainers. Any possible ambiguities over the supremacy of Parliament consequently need to be addressed in advance.

For its part, for all the Commission’s professions about running a system operating under the rule of law, the EU has proven at times to be suspiciously elastic. When it suits its purposes, the EU institutions have a track record of bending the rules. Fixed points become moveable once an issue becomes a political matter, such as whether or not to sign off on a €1.4bn fine for Italian dairy farmers. Or whether to treat Algeria as a backdoor member of the EEC after independence: it only stopped when the Italians picked up that they were losing out over olives and wine, at which point a new arrangement was formalised.

Or take the illegal funding identified by Finnish MEP Heidi Hautela. She spotted spending on projects that had no legal basis in treaty law (at that time at least: the authority came in later treaties to legitimise the ambition). The Commission by the ‘90s had developed a technique of pursuing de facto power grabs through putting a relatively small amount of EU funds in an innocuous area and then expanding outwards into shaping the policy around it, expecting no one would notice.

Then came the example of the ‘rubber clauses’ (old Articles 94, 95 and 308) which allowed the EC to legislate in areas that weren’t permitted under the treaties but might subsequently be thought useful to get the Single Market done. The abuse was obvious by the time of the Convention on the Future of Europe, so (under pressure) the primary mechanism was shifted into the new “passerelle” clause.

The French term refers to a connecting bridge between buildings, like the one at the European Parliament, or more appropriately the Bridge of Sighs. The French also means a “gang plank”, which is a better translation for its policy consequences; the evident risks in turn pushed the Cameron government into introducing a unilateral referendum trigger for the UK in case it were ever used. 

For all the protestations we may hear in the coming weeks from MEPs, the European Parliament itself has been guilty of ignoring Treaty text. Most brazenly, it officially and grandiosely called itself a Parliament for years despite only being accorded the title of Assembly.

So there are plenty of warning signs to alert us not to rely on blind trust. I cite the above merely from experience and memory. But the real warning sits in how rules have been blatantly broken to maliciously target the UK. It was odd in particular to see Sir John Major as such a partisan of remaining in the EU, after enduring the gross abuse of Health and Safety clauses being miscited to get around his Social Chapter opt outs. The same trick was still being used two decades later to allow the Commission a legislative foothold in North Sea production, after a range of attempts through other treaty clauses had failed. 

The most celebrated abuse has been relatively recent, with the ‘Disaster Clause’ being twisted during the Eurozone crisis to provide a legal basis for intervention, while forcing the opt-out countries to stump up billions. But even before the UK had joined, and as the 1972 accession talks were about to resolve territorial waters, the Founding Six set the precedent by twisting the existing acquis to reinterpret the supposedly fixed treaties, expanding from Brussels regulating over trade in fish products into having management of the fisheries themselves. 

But as we are looking at the good faith of the EU as it is today, let’s not forget that under the terms of the Political Declaration, under Paragraph 74 the EU was meant to use its “best endeavours” to conclude and ratify a new fisheries agreement by 1 July 2020. The requirement was also included in Withdrawal Agreement clause 184 – “best endeavours, in good faith” to “negotiate expeditiously the agreements”. Barnier has signally failed to do so, seeking to tie fisheries back in with other areas of negotiation. As such he quite clearly has not been negotiating honestly; so why should the UK trust him and his Commission peers now?

Any Safeguards Clauses that ends up before Parliament will have been included for a good reason. They are both an insurance, and a deterrent. And you can forget the bluster from Brussels or its apologists – the Commission knows full well why. 

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Dr Lee Rotherham is Director of The Red Cell, a Brexit think tank.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.