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14 September 2016

Andrew Duff: Brexit beyond the market: Towards a Treaty of London

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Beneath the immediate drama of Article 50 there needs to be a calm and systematic discussion between the UK and the EU about how they can together re-shape the European neighbourhood. And then write it down in a treaty.

For the moment, attention is focussed on the future trade relationship between the UK and the EU. Given that Brexit means Brexit, as Theresa May lucidly puts it, British negotiating options boil down to three: (1) to try for access to the single market via the European Economic Area, like Norway; (2) to fall back on a customs union agreement, like Turkey; (3) to negotiate a free trade agreement, as deep and comprehensive as possible, under WTO rules.

The British government has to choose between the three, and then it must trigger Article 50 promptly. Further delay or prevarication will provoke the Brexiteers to harden their line, extinguish the last remnants of investor confidence, and risk the spread of the nationalist plague across the continent.

The need for strategic thinking

Article 50 concerns the mainly technical questions of secession, and can be completed quite quickly if both sides have the will to do so. Beyond dealing with what has to be dealt with in order to extricate the UK from membership, Article 50 also prescribes laying down the ‘framework for [Britain’s] future relationship with the Union’. So while the initial priority given to trade policy is apt, neither the UK nor the EU 27 can ignore for long the other strategic issues that need to be settled before stability is restored to Europe.

The more precise the Article 50 agreement is about the long-term prospectus, the easier it will be to agree some interim solution which will tide the UK over on a temporary basis until such time as a new comprehensive and durable settlement can be put in place.

That later settlement will take the form of a political treaty between the UK and EU 27 for which, at least since the War of the Spanish Succession, there is no precedent. Once such a treaty is concluded with the British, the EU will then undertake a general revision of the EU treaties in order to expunge references to the UK as a member state and do other things, notably on fiscal union. An option for the EU at that stage will be to invent (possibly as Article 49 bis TEU) a new category of affiliate membership of the EU into which the UK (and others) might neatly fit. 

The point of a new UK EU treaty

The new treaty between the UK and EU – let’s call it the Treaty of London for easy reference – will have two main purposes: the first is to protect, so far as is possible, the best of the political legacy from 45 years of British EU membership; the second will be to allow for the UK-EU relationship to evolve on a mutually agreed basis in order to meet changing circumstances as they arise, and to do so without requiring another vast and disruptive constitutional upheaval. [...]

Institutional innovation

Article 50 will do the unpicking of current commitments, but the creation of a fresh alliance between the UK and the EU will be the stuff of our later London treaty. The exact nature of the new institutional interface between the EU 27 and the UK will not be known until the relative degree of British access to the single market is agreed. [...]

In any case, as much of British commerce in goods and services will have to respect the EU’s complex rules of origin, there will be a need to establish trustworthy ways and means in which mutual recognition of standards can be monitored and, in cases of dissonance, corrected. A clutter of working groups at technical level will certainly be necessary at least for a transitional period to identify and resolve common problems, including those concerning the acquired rights of EU citizens living in Britain and of Brits living in the EU. [...]

Full piece on Andrew Duff's blog at EurActiv


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