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Brexit Beyond the Market: Towards a Treaty of London

For the moment, attention is focussed on the future trade relationship between the UK and the EU writes Andrew Duff. 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.

Both parties will be anxious to have their inevitably close interdependence recognised in terms of international law. It will be in Britain’s national interest to see that it is not perpetually isolated and excluded from having any influence in mainland European affairs. Equally the EU 27, in the drafting of the treaty, will seek to ensure that Great Britain is prevented from returning to its historical continental policy of divide and rule.

In its revised Global Strategy, adopted in June, the European Council singled out the USA as a ‘core partner’. Traditionally, the Americans have been much stronger supporters for European integration from outside the EU than the British have been from the inside. Yet the EU 27, without sour grapes, should accord the UK that same privileged partnership after Brexit.

Strengthening the Atlantic alliance

The need to reinforce the transatlantic alliance provides the inescapable strategic context for the Treaty of London. After Brexit, much greater attention will need to be paid to the EU’s relationship with NATO. As the EU’s only surviving nuclear power, France has a special responsibility to show a capacity for leadership in European affairs that has eluded it in recent years. How the UK manages its relationship with France in the UN Security Council may prove to be its key to exercising influence at the European core.

A basic decision for the new UK government will be whether to compensate for its loss of political clout in the EU by working harder to strengthen the European pillar of NATO. This would need London to drop the false argument, much beloved by the Brexiteers, that the growth of an EU defence dimension jeopardises NATO. The future security of the West, not least against the recidivism of Russia, is likely only to be ensured by the growing together of EU and NATO.

Only if the British accept that logic will they be in a position to continue to contribute to UN-led efforts in nuclear non-proliferation, or in combating maritime or cyber insecurity. Fighting terrorism, illegal trafficking, piracy and other manifestations of international organised crime cannot be effective if undertaken by Britain alone resting on its laurels having ‘taken back control’ of its own affairs from the EU.

There are several ways in which the UK could contribute to and profit from the EU’s increasing security efforts. It could ask to engage with the European Defence Agency, which has the potential to bring both industrial and security benefit. It should establish liaison with any new operational HQ that emerges from the EU’s development of permanent, structured cooperation in military matters (fondly known in Britain’s tabloid newspapers as the European army). The UK could opt to participate in certain of the EU’s common security and defence policy missions. It should continue to offer its military resources to support collective maritime security and Frontex.

Throughout the security nexus, both internal and external, the UK must not be allowed to escape from the reality that intelligence sharing, joint analysis and common response planning with core partners, European and American, are indispensable preconditions for capacity building. If the UK government seeks to participate on a selective basis in EU security policies, it will have to learn to accept post-Brexit what it could not pre-Brexit – namely, that the EU’s supranational authority has a legitimate even indispensable role to play in the field of police and justice policy.

Theresa May knows very well that Britain’s police force and judiciary wish to remain part of Europol and Eurojust. Brexit will allow the UK to evade the EU’s Charter of Fundamental Rights but not the older European Convention on Human Rights, to which it must adhere as a member of the Council of Europe.

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.

The closer the relationship, the less will be the need for the UK to replicate the EU’s regulatory framework: a more detached relationship, however, will require the UK to re-establish its own domestic regulation authorities de novo to replace those at the EU level from which it has just secured liberation.

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.

Formal consultative meetings, held perhaps twice yearly, between British ministers and the Commission and Council may be anticipated. There will be wide and taxing agendas, including the preparation of positions for international negotiations, for example over global warming and energy cooperation, as befits core partners. A joint parliamentary committee will be established for regular discussions between British parliamentarians and Members of the European Parliament.

No Titanic II

Much to the frustration of cartoonists, the UK after Brexit is not to disappear like the Titanic in mid-Atlantic. It remains a member of the G7 and G20 wealthier states. Nearer to home Britain is tied not only to NATO but also to the OSCE and the Council of Europe. If it wishes to cling to its post-War status as a Permanent Member of the UN Security Council, the UK needs to aggrandise its contribution to meet world health and humanitarian needs, which include climate change.

The global culture of the English-speaking peoples requires of the UK a distinctive effort in the arts, education and science research. Continued, even partial British participation in the EU’s research and education programmes is very much in the British national interest and should feature prominently in that part of the Article 50 agreement that lays down the parameters of the new UK-EU relationship.

On 23 June 2016 the British people voted to become less powerful in Europe. So the new British government, supported by its chastened parliament, must now spell out how they see Britain’s future as a European country. Can Britain face its strategic challenges if it gets wholly cut off from the European mainland? Conversely, the EU 27 must wonder whether it can continue to aspire to be a world player without the engagement of its closest neighbour and erstwhile partner.

There are two parties to Brexit, and both sides are about to discover how close their long, if rocky marriage has brought them together – and how costly it would really be to effect a complete divorce, decree absolute.

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

Andrew Duff is a Visiting Fellow at the European Policy Centre and was a Liberal MEP 1999-2014; This article was first posted on his blog in September 2016. `The original article can be found at . twitter @andrewduffeu

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