Brexit: Lisbon calling

27/05/2018

The XXVIIIth Congress of the International Federation for European Law must be a very grand place to be. Certainly, Michel Barnier thought so, enough for him to go to Lisbon on a Saturday to tell it about current Brexit developments.

Structured quite well, his speech started with the classic tour de horizon, rehearsing the "progress" made to date: the rights of citizens; the financial regulation; and the agreement on a 21-month transition period.

We have agreement, said Barnier, on about 75 percent of the Withdrawal Agreement text but, he said, to remove the uncertainty created by the UK's decision to leave the EU, we are not at the end of the road. "We need to agree in particular on the governance of this withdrawal agreement", he said.

Then there was the eternal question of "a specific solution for the unique situation of Ireland and Northern Ireland". The UK had accepted the principle of a backstop to avoid the return of a physical border and to respect the Good Friday Agreement in all its dimensions. We need, said the EU's chief negotiator, "to operationalise this backstop in the withdrawal agreement".

Finally, he said, "alongside the Treaty itself, we must agree on the framework of our future relationship - other treaties, on other legal bases, probably mixed treaties".

Yet time is short and if we are to achieve this, says Barnier, "we must accelerate". His side is ready, ready to intensify negotiations at the technical, legal and political levels. "We are open!", he says: "There is no ideology or dogmatism on our part - we simply ask for clarity".

This leads to the gospel according to Barnier: "to negotiate effectively, you must know what the other party wants", he says, leading to the line which most of the UK zombie media chooses to reproduce: "A negotiation cannot be a part of hide and seek", he says.

The BBC for instance runs: "UK is playing hide and seek in talks, says EU negotiator". The Independent personalises it with: "May playing 'hide and seek' in Brexit talks, Barnier says", while the Financial Times goes for: "Barnier warns Britain to stop playing hide and seek".

It's funny how great minds think alike, or perhaps it's our old friend coprophagia – a single idea shared amongst the many, by the traditional media route.

The FT is so often the brand leader on these things. No one ever got fired for specifying IBM, they used to say. And no hack every got fired plagiarising the Financial Times. The loathsome Johnson – the unthinking Tory's plagiariser – even made a virtue of it.

A lengthy and thoughtful speech, therefore, gets distilled down to a few soundbites for the delectation of the English press. One wonders whether Barnier writes his soundbites first and then fills in the gaps in order to make a speech, like most UK politicians seem to do. I guess not.

But, according to the FT in Barnier's soundbite land, he is calling on Britain (never the UK, even though Northern Ireland is such an important part of the equation) to stop playing "hide and seek". It must, we are told, "decide on a realistic exit policy" – all this occurring while "the two sides traded barbs over the blame for stalled talks".

Actually, even though the media waste acres of space on crap of all kinds, when it comes to the really important stuff, they always seem to insist on brevity. But here – as so often – the full quote, in its proper context, is far more interesting.

"There is urgency", says Barnier. He repeats that we have "probably" made a lot of progress on the substance of the withdrawal agreement, but his main theme is one of "effective governance". That's what he talks about at Lisbon – an issue the media barely mention.

Without effective governance, Barnier says, "these gains will be of limited value". Without agreement on it, "and without an agreement on Ireland and Northern Ireland, there will be no withdrawal agreement, and therefore no transition period".

This seems to be upping the ante. We've had for some time the mantra about no Irish agreement, but now he's throwing "governance" in the pot. "The United Kingdom is well aware that our citizens and businesses, on both sides of the Channel, need legal certainty", he says.

While "we also want an ambitious partnership with the United Kingdom in the long term", he adds, "to achieve this, we need realistic proposals from the UK". These must be proposals "that respect the institutional architecture and the integrity of the European Union".

And at this precise point, the rapier comes out: "I can see the temptation of the blame game to bring the negative consequences of Brexit on the European Union", he says. "But we will not be impressed. I will not be impressed". Twisting the blade and extracting it, to leave the blood to flow freely on the floor, he concludes: "It is the United Kingdom which is leaving the European Union. It cannot, on leaving, ask us to change who we are and how we operate".

No wonder the FT refers to "blunt remarks", but it only the expends the effort to tell us the whole purpose of the speech – that it was "focused on dispute settlement arrangements for the exit treaty". This, we are allowed to know – as if we didn't already – is "a highly sensitive issue for Brexiters since it relates to the future influence of the European Court of Justice in Britain".

One might better describe it as a huge unexploded bomb – big enough to bring the traffic to a stop within a mile radius (that's 1.60934 kill-o-meters for the hard of thinking and foreigners).

What Barnier tells us at some length is well worth repeating. Governance, he says, must "include a jurisdictional system for the settlement of disputes". Replacing the jurisdictional review of the rules of law with a simple political settlement, which the UK side is arguing for, "is unacceptable". He goes on, in point one of three:

By creating or joining the European Union, member states have agreed to pool certain aspects of their sovereignty to create a body of law applicable to themselves and their nationals . It is this community of law based on mutual trust that the UK is about to leave.

And the agreement we are negotiating aims to organize this withdrawal in an orderly manner, which involves "unravelling" relationships established for decades between member states, but also between private actors.

Therefore, in contrast to a conventional international agreement, the withdrawal agreement will not be limited to creating rights and obligations between two Sovereign Parties . It will create rights directly invokable by litigants.

In the event of political disagreement in the Joint Committee, and this can never be ruled out, questions will remain unanswered, with very concrete consequences for citizens and businesses on both sides of the Channel. We cannot and do not want to move from a community of law built on the control of the Court of Justice to a simple political dialogue.

For us, on the side of the Union, it is imperative to settle disputes in a jurisdictional or arbitration framework. It is a matter of efficiency and legal certainty.

To put it bluntly – and there really isn't any other way of doing it – that well and truly stuffs Mrs May, and puts two very large fingers up to Mogg, the "plastic patriot" (I do like that phrase. It really fits him). Both and all their allies are going to be seriously put out by this. Barnier is putting the ECJ back in the frame, trampling on the red lines, grinding them into the dust to leave little more than the hint of a pink smear. You wouldn't even recover any DNA out of this one.

The subtext is made clear in the second point. "The autonomy of Union law must be preserved", Barnier says. Thirdly, he eschews the rapier and puts the boot in, effectively telling us that disputes over the withdrawal agreement will have to come under the jurisdiction of the ECJ.

This, of course, should have been the headline across the board, except that the zombie media don't do information any more. All you get is "biff-bam" personality politics. It is enough that Barnier is making "blunt remarks". What they're about is far less important.

Nevertheless, Barnier gives an example of how the general regulation on data protection would work. The UK wants its supervisor to remain on the European Data Protection Council set up by the GDPR, believing that to be "in the interest of EU companies".

Out comes the rapier again – this time plunged into the recumbent body: "Let's be clear", Barnier says, borrowing from the May book of handy phrases (only one page long): "Brexit is not and will never be in the interest of EU companies".

It "would be contrary to the interests of our companies to give up our autonomy of decision . This autonomy allows us to set standards for the whole of the EU but also often to see these standards taken over the world". This, he adds, twisting the rapier blade vigorously, "is the normative power of the Union or what is often called 'the Brussels effect.". Ouch!

We cannot, says Barnier, and will not "be able to share this decisional autonomy with a third country, undoubtedly a former Member State but which no longer wants to be in the same legal ecosystem as us".

There is a limit to how deep the blade can go, but it must now be in all the way to the hilt. "The UK has decided to leave our harmonised system of decision making and enforcement", he says. It must respect the fact that the European Union will continue to operate on the basis of this system , which has enabled us to build a single market, and which will enable us to deepen this unique market in response to new challenges".

In sort, he says, "with regard to personal data, he must understand that the only possibility for the Union, as indicated in the guidelines of the European Council, will be to ensure their protection through adequacy decisions". And, for the killer line, he says: "It's one thing to be inside the Union, it's another thing to be outside".

That must be the politest "get stuffed" message on the books – and done charmingly in French – to a Portuguese audience. Mr Barnier is not going to accept the weakening of "this community of law and destiny" just because "one of our member states has decided to leave it".

This, he concludes, "must be well understood". Only then will it be possible "to build a new ambitious and long-term partnership with the United Kingdom".

Unfortunately, there is no way of telling whether London is listening. It used to be "London calling", but now the shoe is on the other foot. But it's a long way from Lisbon to London. I'm not sure sound carries that far.