June to October we spent wondering whether we would leave the single market. October to January we knew Brexit meant Brexit but not what Brexit meant. January to March we occupied ourselves preparing sectoral deals we knew could never happen. March we triggered Article 50, and were supposed at last to start negotiating, but Theresa May called the General Election instead.
And now, when we’re back in June again, and the General Election is done, we will have yet another delay.
The summer, David Davis has said, will be taken up not with negotiations but with negotiations over the order in which we negotiate. Article 50 mandates, he says, negotiations of the future relationship between the UK and EU at the same time as negotiations about our exit agreement. This would smooth his political path to a trade deal. But the EU disagrees. It says we must first resolve the question of our exit bill and the rights of EU citizens.
And, perhaps because David Davis has said it, we’re now all obsessing about it. The media is in a flap about it. I’ve been asked whether the point might be litigated. But does it have any value?
Reader, it does not.
Here’s what Article 50(2) (relevantly) says:
the Union shall negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.
And here’s why the point lacks value.
(1) On any view the future relationship takes a backseat to the withdrawal agreement. The Treaty mandates that the withdrawal “agreement” be negotiated. By contrast there is no Treaty requirement for an agreement governing the future relationship. All the Treaty seems to envisage is that there be a “framework” – something less than an agreement – for a future relationship.
(2) The requirement to take account of the framework is parasitic on the agreement. If there is no agreement then there is no need to take account of the framework. What this seems to me to mean is this: unless and until you have a degree of confidence that there will be an agreement it is pointless to take account of anything in that agreement. And this thinking is perfectly reflected in the EU’s negotiation position. They want a degree of confidence that the stumbling blocks to an agreement – citizens’ rights and settling the tab – will fall away before they move on to discuss the rest of the agreement or the framework.
Those points are points of construction. And they are tolerably clear. But there are also powerful arguments to why, even if the position were less clear, Davis’ argument would still be futile.
(3) Judges only do what judges can do better than those they oversee. One of the things they can do better is read the words of the legislation. But they are not negotiators and will not tell those who are how negotiations should be conducted. This isn’t a philosophical point. It is a principle of law – called justiciability. But what it means is that judges aren’t going to tell the politicians how to handle the Article 50 discussions.
(4) But even if all of this is wrong, and Davis is right, where does it get him? Will he take up six months or more asking the Court of Justice to rule on the order in which the negotiations have to be conducted? Leave aside the irony of Davis seeking to persuade the CJEU that We’ll then be in March 2018 and we still won’t actually have begun to negotiate about either the withdrawal agreement or the framework for our future relationship.
None of this is rocket science. It’s not difficult. So the interesting question is not whether Davis is right. It’s why on earth Davis would be taking up time arguing a point he can’t win?
Why a further delay? Taking us well beyond a year after the vote to leave without even commencing negotiations?
And here we move into the realm of speculation. And we can’t know what the answer is. We can’t know whether it’s because they don’t want to get found out. We can’t know whether they are trying to delay the economic reckoning. Or whether they see time as their ally in embedding a sense of the inevitability of Brexit.
But what we can know is this. This isn’t how you behave if you’re trying to strike an enormously complex deal in a very limited time frame.
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Waiting for Godot 
I entirely agree. It seems to me HMG is going to rely on that old Perfidious Albion trick of blaming someone else for the failure of the negotiations
The Tory tactic is simple. Davis is setting the scene for a mighty showdown –
David v Goliath. It is so they can walk out of talks while blaming the EU for the breakdown.
The press release will read something like this: “We have irreconcilable disagreements on the structure of negotiations. The EU has been inflexible and broken its own rules. How can we trust them. This is a sad day but unavoidable unless the EU negotiates in good faith.”
(That’s the simple version – Mayhem will dress it up with glib references to our red, white and blue history – our glorious past and our sunlit future – a nation together united behind Mother etc, etc, etc.)
M Barnier’s ‘two-phase’ approach, in accordance with the treaty, requires that agreements on trade and other issues, some of which may already have been covered by the withdrawal agreement such as citizens’ rights, are made with a ‘third country’. The UK becomes a third country only when it has left the EU.
This is a good piece.
Much of the framework for our future relationship with the EU has already been established – there is an intention to construct a close co-operation in matters where there is a mutual interest in doing so. And, particularly for trade, both sides have stated their wish that an FTA be negotiated, while we have stipulated that we will not be members of either the customs union or the single market.
Additionally and overarchingly, we have stated that will we will not subject ourselves in future to the rulings of the CJEU and nor will we pay substantial sums to the EU. Yet, as the EU have made clear, the question of governance must be one requiring resolution as a matter of priority.
See here:
http://europa.eu/rapid/press-release_SPEECH-17-1205_en.htm
–
In connection with this, EU council guidelines also include this:
“6. To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.”
http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines/
In other words, the EU has made clear that an FTA (amongst other matters of relevance to the future relationship) cannot be concluded, in any case, prior to our leaving date. But, we may be able to park the problem of our future trading relationship post March 2019 for a time, continuing to operate functionally within the single market until a wide ranging agreement can be negotiated, (over a period, perhaps, of five years or more) though the terms even of a mere transition would themselves appear to be of sufficient complexity to require considerable time and negotiation resources. And they would require our continued submission to the CJEU together, no doubt, with the payment of an on-going fee.
The metaphors are colourful. Our choices are limited to a rock or a hard place. “There will be no cake – only salt and vinegar”, as Tusk said.
If we do leave the EU in March 2019, we will certainly crash out without an FTA. The only question is how much padding we will be able quickly to wrap around ourselves when we drive off the motorway, down the steep hill and into the ravine.
We decided to trigger Article 50. At the end of March 2019, we will leave the EU unless it is established we have a right to remain and exercise that right, or, if we agree with EU27 that our exit be delayed or even cancelled. We knew this before we triggered. Equally, we knew that in a negotiation, there is no principle that dictates an agreement with counter parties must be reached, the order in which matters are addressed or what the terms of such an agreement must be.
The flaw in the process is the two year timetable. In normal negotiations, critical time frames are either not present or not close at hand. With Brexit, the structure dictates the opposite.
“the Union SHALL (my emphasis) negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal,..”
And if they fail successfully to conclude that agreement? What happens then?
Regarding the UK, the ‘framework for its future relationship with the Union’ is clear: it will be a 3rd country. If the UK wanted to stay in the single market, the framework would be the EEA treaty and EFTA. The EU already has rules for how it deals with 3rd counties and that’s what it will follow. There’s nothing in Article 50 that obliges the EU to invent a new category of framework in order to deal with a member state that withdraws from the EU.
As Article 50 states, this is a *negotiation*. IE – this isn’t about rights and obligations. It’s horsetrading, megaphone (lack of) diplomacy, extravagant claims, extravagant counter claims, a race to capture the moral high ground, and ultimately, it’s about the negotiating parties’ goals, strategy, and relative power.
It’s not judicable. The applicable law is the law of the jungle.
If the UK government refused to negotiate until agreement to backfill the channel tunnel was reached, there would be nothing unlawful about it.