As I expected, Theresa May and Whitehall wisely took no notice of my thoughts on how best to write the momentous Article 50 letter to EU HQ triggering Brexit.
Here is what she sent instead. Some points of interest.
She addresses the letter to ‘President’ Tusk. Mr Tusk is president of the European Council – she gives him his title up-front. ‘Mr’ Tusk would have been taken in Brussels as a cheap insult.
As I have said before, that decision was no rejection of the values we share as fellow Europeans. Nor was it an attempt to do harm to the European Union or any of the remaining member states. On the contrary, the United Kingdom wants the European Union to succeed and prosper. Instead, the referendum was a vote to restore, as we see it, our national self-determination.
Our ‘national self-determination’ is a curious way to put it, echoing the language of post-WW2 decolonisation. But how better to sum it all up? The tone of this opening paragraph and much of the letter is very ‘pro-European’:
We are leaving the European Union, but we are not leaving Europe – and we want to remain committed partners and allies to our friends across the continent.
Mrs May rehearses the legal and parliamentary manoeuvres that have brought the UK to this point, and conveys the formal Article 50 (2) notification:
I hereby notify the European Council in accordance with Article 50(2) of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union.
We voted for Brexit? We now get it.
She then sets out in big bold terms the UK’s official aim: a ‘deep and special partnership with the European Union once we leave’, and a ‘fair and orderly’ process that minimises disruption for everyone. In a bizarre drafting #fail (when in doubt, don’t bang on), the phrase ‘deep and special partnership’ appears seven times in the letter. Is ‘fair’ here a codeword for ‘the UK will listen with good faith interest to EU proposals on what the EU expects the UK to pay into the EU pot under existing arrangements’? And, perhaps, offer something by way of money? Yes. See below.
Key policy point: she explains that the UK expects to see the negotiations on the UK leaving the EU to run in parallel with negotiations on the terms of the future UK/EU relationship. No ‘First you leave – then (and ONLY then) we’ll talk about Next Steps‘.
She also sends a reassuring message to EU and UK citizens:
[give] citizens and businesses in the United Kingdom and the European Union – and indeed from third countries around the world – as much certainty as possible, as early as possible.
Again, a gracious tone pointing to flexible if not magnanimous treatment of EU citizens now in the UK? Also wise. What’s the credible alternative?
The PM then explains how the UK government will be tackling the hugely complex task of disentangling itself (or not) from EU law and process, namely by incorporating vast piles of it into UK law. This indeed gives ‘certainty’ but not the certainty wanted by Brexiteers hankering after tossing much EU law into the sea as the main point of Brexit.
This next sentence is interesting:
We will of course continue to fulfil our responsibilities as a member state while we remain a member of the European Union, and the legislation we propose will not come into effect until we leave.
That of course also means that we keep all our rights under EU treaties until we formally leave the EU. So don’t try to pull any fast ones on us, as that could well cause you more trouble than it’s worth.
The letter then offers ‘principles for our discussions’, starting with cooperative constructive respect. She gives examples of how the UK has been listening to core EU positions:
That is why the United Kingdom does not seek membership of the single market: we understand and respect your position that the four freedoms of the single market are indivisible and there can be no “cherry picking”. We also understand that there will be consequences for the UK of leaving the EU: we know that we will lose influence over the rules that affect the European economy. We also know that UK companies will, as they trade within the EU, have to align with rules agreed by institutions of which we are no longer a part – just as UK companies do in other overseas markets.
So no Single Market membership for UK. That’s the price we pay for not accepting the principle of indefinite unlimited freedom of all citizens of all EU member states to live and work (and vote under some circumstances) in the UK. On the other hand:
… at the heart of our talks are the interests of all our citizens. There are, for example, many citizens of the remaining member states living in the United Kingdom, and UK citizens living elsewhere in the European Union, and we should aim to strike an early agreement about their rights.
So as noted above, something generous is needed here. Let’s talk.
We should work towards securing a comprehensive agreement … We will need to discuss how we determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of the United Kingdom’s continuing partnership with the EU.
Ah. So she concedes the principle. Let the haggling over the price begin!
The issue here is at root simple. Under the rolling funding arrangements for the EU Budget, the current Budget framework period was agreed by all member states before Brexit. So should the UK pay in its full whack of some €80 billion over seven years even if it leaves the EU before the current framework period ends in 2020? Or some proportion? This issue will tend to wither as the negotiations unfold and the money gets spent anyway under the current EU Budget cycle while we stay as members.
A jolly sub-plot here: much of the money spent on EU Structural Funds in eg Poland gets spent towards the end of the Budget cycle as detailed spending plans get turned into action. Should the UK be expected to pay the full UK contribution for that Budget cycle, or just a pro rata slice of what has actually been spent by the date we formally leave?
In order (Ugh – Ed.) to avoid any cliff-edge as we move from our current relationship to our future partnership, people and businesses in both the UK and the EU would benefit from implementation periods to adjust in a smooth and orderly way to new arrangements. It would help both sides to minimise unnecessary disruption if we agree this principle early in the process
Well, yes. But easier said than done? The more so once special lobbying interests everywhere start buzzing round the process like wasps to try to use the negotiations to get favours they could not otherwise have hoped for.
We should begin technical talks on detailed policy areas as soon as possible, but we should prioritise the biggest challenges. Agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority.
Big point! Get the shape/essence of the UK/EU deal done quickly, then the rest is detail. Admittedly a pile of details higher than the Himalayas, but still essentially detail. Thus the PM’s core idea:
But we also propose a bold and ambitious Free Trade Agreement between the United Kingdom and the European Union. This should be of greater scope and ambition than any such agreement before it so that it covers sectors crucial to our linked economies such as financial services and network industries. This will require detailed technical talks, but as the UK is an existing EU member state, both sides have regulatory frameworks and standards that already match.
In other words, something that looks pretty much like a new Single Market Plus, but wearing different legal trousers? Not unattractive if it can be pulled off – a model for future EU relations with eg Russia and Turkey too? Why, that might turn into something like Europe 2.0 haha.
We should therefore prioritise how we manage the evolution of our regulatory frameworks to maintain a fair and open trading environment, and how we resolve disputes.
In other words, not supreme European Court of Justice jurisdiction as per the Single Market. But, maybe, a way can be found to have the ECJ and UK judges closely cooperating on such things? Maybe not so different from what we have now in terms of likely outcomes and process, but done on a very different philosophical basis?
We start from a unique position in these discussions – close regulatory alignment, trust in one another’s institutions, and a spirit of cooperation stretching back decades. It is for these reasons, and because the future partnership between the UK and the EU is of such importance to both sides, that I am sure it can be agreed in the time period set out by the Treaty
… I know we are capable of reaching an agreement about the UK’s rights and obligations as a departing member state, while establishing a deep and special partnership that contributes towards the prosperity, security and global power of our continent.
Again, that concluding tone of principled optimism.
What to make of all this? See my next posting.