Brexit: the mandate has landed

26/02/2020

Sometimes, the smallest clue can give a quite disproportionate insight into the game of an opposing player – like the "tell" skilled poker players might rely on to guide them in their bidding.

So here we have, at last, the EU's mandate for the forthcoming negotiations, a document which does more than simply set out the Union's position. It also gives an insight into the thinking of the "opposing team" – if that's the way you want to think of them, and some idea of capabilities and skills.

For some time now, I've been coming to the conclusion that the intellectual capacity of the EU – as a collective – is declining. We're past the stage where the founding fathers and their immediate successors had a close grip on issues, and a real understanding of the nature, the aims and the objectives of the Union.

We've now got to the stage where we're dealing with apparatchiks, little more than jobsworths, who are in it for the power and prestige (and the money), but who do not have that deep-rooted understanding of their roles which can only come with conviction and emotional empathy.

This has become apparent in the recent past, where even the Commission has confused in its own rhetoric the difference between its Customs Union and the Single Market, and when we have a body which has lost sight of the definition of its own functions, we have an institution which has lost its soul.

And so to the "clue" that is going to give us an insight into the thinking of the EU's negotiating team, to be found in paragraph 30 of the mandate, which deals in depth with the sanitary and phytosanitary (SPS) provisions which will form a crucial part of our trading partnership with the EU.

In the area of SPS, the mandate says, "the envisaged partnership should build on and go beyond the WTO Agreement on SPS measures, with the objective of facilitating access to each Party's market while protecting human and animal health, as well as plant health", then going into some detail as to the scope of the agreement.

All this is fair enough, especially as it asks that the SPS provisions "should respect Union rules and take into account the respective international standards, guidelines and recommendations of the International Plant Protection Convention (IPPC), the World Organisation for Animal Health (OIE) and Codex Alimentarius".

If we were looking for something that approximated CETA, that's almost what we've got. In that agreement, the EU is looking for compliance with an amalgam of Union and international standards, and since most EU standards are in any case based on those international standards - to which the UK also subscribes - there should be no great hardship in agreeing to the thrust of the proposals.

But there is one crucial difference between what CETA sets out, and what this mandate is angling for. This we see towards the end of paragraph 30, where it states that: "The envisaged partnership should uphold the application of the precautionary principle in the Union as set out in the Treaty on the Functioning of the European Union".

Now speaking personally, as something of an expert in the field of food safety, I have no great hang-ups when it comes to the application of the precautionary principle, as long as it is applied properly by people who know what they're doing.

And, in the context of food safety, the Commission's views are a model of its kind – despite now being published twenty years ago – predicated towards guiding legislators and those responsible for framing standards in the dark arts of risk management, especially where there are elements of uncertainty.

But the perspicacious reader will note that the reference offered is to a communication from the Commission, which falls far short of being a treaty provision. And yet, the mandate, in this case dealing with SPS provisions, refers to the precautionary principle "as set out in the Treaty on the Functioning of the European Union".

In fact, in the TFEU, there is only one reference to the precautionary principle, and that is in Article 191, where it deals with the environment. For the mandate then to apply this to SPS provisions is to extend the Treaty into areas that it doesn't venture.

At best, this is an error. At worst – and we are probably in that territory – there is an underlying political agenda. The precautionary principle has been used in the EU to justify the prohibition of genetically modified crops (GMOs), so the inclusion of this reference is probably a coded indication that the EU will be looking for a similar prohibition in the EU-UK agreement.

Either way, this is an indication that we are not dealing with the "top team". The inclusion of a non-existent treaty reference is shoddy, and suggests that we are dealing with people who are not entirely on top of their brief. And that is useful information to know, even if "Team UK" is similarly lacking.

The thrust of the mandate also suggests that it is going to be details, such as agreement on GMOs and fishing, that will be be the battleground. There is no rigid demand for regulatory alignment, and nothing that could be construed as requiring "dynamic alignment". In these areas, the mandate is eminently reasonable, following largely along the lines of existing "new generation" treaties.

For sure, the envisaged partnership "should include an ambitious, wide-ranging and balanced economic partnership", but this is conditional on there being "sufficient guarantees for a level playing field so as to uphold corresponding high levels of protection over time".

However, according to Part 15 of the mandate, commitments should be "commensurate with the scope and depth of the overall envisaged partnership and the economic connectedness of the Parties". Essentially, the more you give, the more you get.

Nevertheless, within hours, No.10 Press Office was on the case, protesting that the UK was determined to protect "its own legal autonomy". The EU, it said, had respected the autonomy of other major economies around the world such as Canada and Japan when signing trade deals with them, adding: "We just want the same".

By way of comparison, it asserted that the EU had been willing to offer the US zero tariffs without the kind of level playing field commitments or the legal oversight they had put in the mandate, quoting Paragraph 36 on trade and competition from the TTIP mandate of 2013.

In general terms, this merely stated that the agreement "should aim at including provisions on competition policy, including provisions on antitrust, mergers and state aids", and "address state monopolies, state owned enterprises and enterprises entrusted with special or exclusive rights".

Game, set and match, you might think, except that the selective quoting leaves out Paragraph 36 on "trade and sustainable development". This declares:

The Agreement will include commitments by both Parties in terms of the labour and environmental aspects of trade and sustainable development. Consideration will be given to measures to facilitate and promote trade in environmentally friendly and low carbon goods, energy and resource-efficient goods, services and technologies, including through green public procurement and to support informed purchasing choices by consumers. The Agreement will also include provisions to promote adherence to and effective implementation of internationally agreed standards and agreements in the labour and environmental domain as a necessary condition for sustainable development.

If one compares and contrasts this with the Political Declaration, we see that Johnson has already agreed that the future relationship "must ensure open and fair competition, encompassing robust commitments to ensure a level playing field", while the adherence to international standards is a feature common to TTIP, the Political Declaration and this newly published mandate.

Essentially, there isn't a fag paper's difference between the phrasing of the EU-UK and the TTIP mandates. As to the Declaration, it goes on to say that "the precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties", a phrasing that is almost identical with the mandate phrasing. This states that commitments should be "commensurate with the scope and depth of the overall envisaged partnership and the economic connectedness of the Parties".

Thus, if the UK is looking for ways to sabotage a deal, blaming the EU for its "intransigence" as the excuse for failure, it will have to go beyond the ritual protests about the level playing field, so volubly rehearsed by the fanboy gazette.

The EU, basically, is playing it straight when it comes to level playing field conditions. These follow closely the lines set in the Political Declaration and are part of every treaty negotiation it has entertained since it embarked on its "new generation" programme.

The UK is being treated no differently than Canada, Japan nor any other country in this series. Furthermore, there is no quantum difference between these provisions and the sort of conditions that apply between the US and Canada in CUSMA.

If there are to be sticking points, these are going to be found elsewhere in the mandate, which has enough traps to keep negotiators busy for more time than there is available to settle the deal. These we will have to address in another post.

In the meantime, à propos yesterday's post, we are seeing a serious escalation in the coronavirus crisis, with cases having been reported from across Europe. Italy, Spain, Austria, Switzerland and Croatia are in the firing line.

There is a real possibility now that the hitherto separate issues of the putative pandemic and Brexit begin to collide. In the uncertainty created by current developments, no plans for the immediate future can be taken as read.