The Commission’s mandate for Brexit negotiations: firm but fair?

22 May 2017 will rightly be remembered by people for the terrible events in Manchester. But it was also the day that the EU finalised its position on the Article 50 negotiations, agreeing on the detailed negotiation mandate for the Commission, which will lead the talks.

The mandate essentially confirms the broader guidelines previously agreed by the European Council on 29 April, setting out the detail of how to proceed. Importantly, this means that the EU has sought to solidify its overall approach to the negotiations, particularly in relation to sequencing.

The EU argues that there are three distinct phases in the Brexit process. Firstly, it is necessary to provide as much clarity and certainty on the immediate impact of the UK’s withdrawal, including the resolution of outstanding rights and obligations. Only then would it be possible to move to a second phase where a framework for the future relationship to be discussed and agreed. Both these would happen within Article 50, laying the groundwork for the final phase, namely the negotiation of that future relationship. Put briefly, tidy up before starting anything new.

While the UK has resisted this – largely out of fear that it leaves them hostage to a demand for a big financial settlement before anything else is discussed – the EU has taken a determined line on this. Hence the Commission’s mandate only provides guidance on the first phase, albeit with some wriggle room, whereby the European Council can decide ‘sufficient progress’ has been made to allow phase two to start.

At the same time, the mandate clearly puts the onus on the Commission and the UK to find common ground on a number of big issues before movement to any future relationship is likely. Each of these is worth comment.

The mandate places citizen’s rights centre and front. Withdrawal has implications for the residence, employment, welfare and free movement rights of UK citizens in the EU27 and EU27 citizens in the UK. The mandate provides some definition on all these areas and affected rights that it will seek to protect, together with the intention that such protection is directly and easily available to those affected.

The centrality of this is not simply a function of the volume of people involved, but also a mark of the extent to which the EU has affected individuals’ lives. While both sides have repeatedly expressed a desire to reach a quick resolution of this area, and the European Parliament has stated that its approval of any final deal will be subject to this being agreed, the mandate does not set out any specific enforcement mechanism nor any margin of manoeuvre.

The second key issue is that of financial liabilities. The Commission is required to produce a single settlement of commitments made by the UK throughout the current financial framework (2014-2020), including to the ancillary bodies of the EU such as the European Investment Bank (EIB). However, rather than attach any figures to this, the mandate asks for a ‘calculation method’ to be developed, alongside a payment schedule.

This approach is very much in line with previous EU statements on the matter, as both the institutions and other member states know that the money question is potentially lethal to British approval. Thus the efforts to provide justification of, and some dispersal of payment of, this settlement is aimed at trying to keep the British onside while also addressing the substantial financial impact the UK’s departure will bring.

The Irish border is the third key topic of negotiation. Its centrality arises from the immediate and profound difficulties that will ensue with Brexit, given the mutual incompatibility of EU freedom of movement, the UK-Irish Common Travel Area and the UK government’s desire to stop freedom of movement with the EU. Additionally, the Good Friday Agreements are grounded in the assumption that both Ireland and the UK are in the EU.

The scale and consequence of such points are thus not solely an Irish-specific concern – although a very important driver – but also ones that go the heart of the EU’s shared values on cooperation, stability and peace. The concern will be that once again no solution to this matter is offered, even as all sides state they are looking for one.

Finally, the mandate addresses the matter of what to do with cliff-edge issues, including the sale of UK goods in the EU27 and procedures relying on EU law at the point of exit. This includes directions to provide decisions about what happens to areas as varied as court cases, location of EU agencies and the status of nuclear fissile materials on 1 April 2019.

The range and scope of elements has become clearer over the time since last June, and has invited action at this stage. Given the degree of integration of supply chains and markets, it will also serve to remind all involved early on of the consequences of Brexit on a more practical level.

A final word should be given to the matter of transparency. The EU adapted a protocol alongside the mandate, committing it to conduct as much as possible of the talks in public. Comment in the UK has tended to see this as a riposte to the government’s seeming desire to negotiate behind closed doors, with all the scope this contains for giving more flexibility (if one’s being generous) or fudging (if not).

However, the protocol makes more sense when considering that the EU side is structurally very leaky, with the involvement of the institutions and member state governments. Added to this has been the recent unhappy experience of negotiating the Transatlantic Trade and Investment Partnership – where secretive discussions contributed to an ever more negative public perception.

All of which has pushed the EU to make a virtue of circumstance, with the added effect of exposing the costs of exit to the British public, which might have the effect of encouraging them to push their government towards securing a deal.

Seen in the round, however, what is clear from the mandate is that Article 50 is confirmed as a process that is controlled by the EU. It holds the reins on the process, the structure and the content of the negotiations, leaving the UK will little scope to control any of these.

As much as this puts the EU in the driving seat, it also means that it will be easy to paint them as the villains of the piece – certainly in the UK – hence the focus in these documents on both matters of most urgency and fine-sounding ideals. Whether that will last long into the substantive discussions that begin on 19 June 2017 remains to be seen.

By Dr Simon Usherwood, reader in politics at Surrey University and Research Investigator for ‘UK in a Changing Europe’.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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  • The Irish border is the third key topic of negotiation
    HMG has ruled out the EEA option for the UK, but not explicitly for Northern Ireland.If this is a possibility then the border ‘controls’ might be as light touch as between Norway (EEA) and Sweden (EU). To try and overcome objections from the Irish Republic it could be pointed out that Norwegian companies set-up establishments in Sweden to mitigate the EU Rules of Origin difficulties so the same could happen in Ireland.

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