The Regulatory Policy Institute Research Group

Article 129(1) of the draft Withdrawal Agreement: a modest suggestion

When first posted this blog referred to Article 124(1) of the draft Withdrawal Agreement of March 2018. It has been adjusted to reflect the Article numbering in the November 2018 version. End comments have also been added in the light of the current (19/11/18) situation.

In current circumstances, the EU Brexit negotiators must necessarily consider the likely effects of their own conduct on the state of affairs in British parliamentary politics. This is not a question of interfering in British politics, it is simply a recognition of realities. Any new offer made by the EU affects the political balance in Britain, which in turn affects the prospects for a satisfactory outcome for the EU itself. The balance is simply part of a causal chain linking EU actions to EU consequences.

With this in mind, let me run a suggestion up the flagpole to see if it catches any wind. It is directed chiefly at EU negotiators, since things in the NW archipelago seem a bit stuck in a groove at the moment. It could possibly transform the state of play in Westminster in a way that would open up a path to a Brexit outcome that would be judged satisfactory on both sides. By the ‘British side’ here is meant majority public opinion, not the opinions to be found in the ideological factions of a fractured politics. The suggestion concerns Article 129(1) of the draft Withdrawal Bill.

Article 129(1), which appears under the heading Specific arrangements relating to the Union’s external action, reads as follows:

Without prejudice to Article 127(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, by Member States acting on its behalf, or by the Union and its Member States acting jointly, as referred to in point (a)(iv) of Article 2.* (The end asterisk points to a footnote.)

These international agreements include the much discussed Free Trade Agreements with third countries, egs Canada and Korea. Amongst them is the sui generis European Economic Area Agreement.

Article 129(1)’s confirmation of the EU’s support for the continued applicability of the EEA Agreement without recourse to any need for international dispute resolution has been of comfort to many in the UK, but there is one snag. The footnote to Article 129(1) says that:

The Union will notify the other parties to these agreements that during the transition period, the United Kingdom is to be treated as a Member State for the purposes of these agreements.

In relation to the EEA Agreement, it is the footnote that gives rise to the ‘vassal’ or ‘colonial’ status that has created and is creating significant opposition to the proposed Withdrawal Agreement. It obviously fans the flames of the nationalistic sentiments that can cause ruptures in the fabric of international cooperation, but that is not its only effect. It entails the following of market rules without any ability to shape or influence those rules. Its repudiation would therefore likely be supported by at least some Parliamentarians with strongly democratic, but not particularly nationalistic, sentiments.

My suggestion is therefore this. Provide for the sui generis EEA Agreement to be an exception to the general rule established in the footnote (that the UK is to be treated as an EU Member State). Specifically, introduce an option that the UK can instead choose to be treated as an EFTA State, subject of course to the consent of Iceland, Liechtenstein and Norway.

In respect of trading arrangements at least, that would make ‘vassal’ status optional and, when in a tight spot, additional options are nearly always good to have. Although the option would be exercisable by the UK, the amendment would have benefits for the EU too. The European Commission has a big agenda and is heavily stretched in terms of technical resources. Particularly if the transition period is to be extended, the retention of UK experts in the ‘engine rooms’ of regulation could be of significant value, just as Norwegian officials have added significant value in a number of important, regulatory areas over the past years.

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