This EU Won't Work

On Wednesday 12 July Michel Barnier, chief negotiator for the EU, gave a press briefing. We highlight in this post a few points where he wishes us to believe that the EU’s fixed position is based on law or logic in order to cover decisions that are in fact more or less arbitrary choices.

As the old saying goes: “Oh! What a tangled web we weave when we practise to deceive.” To judge from the number of people, not just Remainers, who believe them, the EU has mastered the art of deception.

“We need to know what we can do, and [then] we can negotiate in earnest.”

As we’ve pointed out in earlier posts, “…we can negotiate in earnest” is simply untrue (see Storm Before the Calm?). The EU’s own directives are mandatory for the Barnier team; they know what they have to achieve as this is clearly mandated and is not negotiable. They cannot and will not move until the UK complies, point-by-point. 

“It is essential for the United Kingdom to recognise the existence of financial obligations which simply stem from the period during which it is a member of the EU, and in particular from our current multiannual financial framework“.

Only once the EU gets this formal recognition can we “begin work on the methodology and agree in this first phase of negotiations on this methodology“.

This is another two-phased mandate, in which agreement to the first part – the general principle that the UK owes the EU compensation – is “essential” before the EU is willing to discuss the details. Early signs are that the UK team will indeed agree that there is a financial price to pay for Brexit. This demand is, of course, arbitrary and is just a softening tactic. Discussions could start without first agreeing that there is a debt. Once a specific item is agreed the general principle would be established implicitly. Then discussions could proceed, no doubt by arbitrary stages set in stone by the EU. They won’t buy this of course, as their demand is a mandate, however illogical or unnecessary.

What neither Barnier nor Davis make clear (Barnier because he doesn’t want to and Davis perhaps because he hasn’t thought of it) is that promises to contribute to the costs of future projects made sense while Britain was a member of the EU but make no sense after Brexit. Should a club member continue to pay into future projects after resigning membership?

From the draft Guidelines for negotiations onwards the EU has pretended that its decisions are grounded in logic or law and therefore inescapable. This may be an appropriately deceptive negotiating tactic in circumstances where the outcome is to be based on the result of the negotiations, but not when the outcomes are mandated in advance, as in this case.

From the press release outlining speaking points we have the following:

“We need to know on which points we agree, and on which points we disagree, so that we can negotiate in earnest.”

Barnier then moves into French. (In the next selections we will give our edited version of Google’s translations; the originals are in the sources cited above).

“On each of the subjects of the first phase, our objective is to ensure that we work on the same basis, with common objectives. This is a prerequisite for convergence towards common solutions.”

He says that it was good that the first round started off on the right foot. He’s right: he got convergence to the common objective of discussing the three issues that the EU selected for the first phase. We note that the underlying ideology of the EU is to “converge towards common solutions”, otherwise known as ever closer union. He does not say why common objectives should be a “prerequisite” for discussions with a de-converging party. But until failure looms (narrowly for Brexit and more widely for the future of the EU) they will stick to their unremitting ideology. And probably beyond. We shouldn’t blame Barnier; this is the brief he has been given.

“We want citizens’ rights to be directly invoked by citizens on the basis of the withdrawal agreement. The United Kingdom wants to put the rights of European citizens in the UK into British law, which will evolve over time, and so cannot guarantee them in the long term.”

He assumes (see the next quotation) that the withdrawal agreement will enshrine these and other rights in EU law, subject to the jurisdiction of the ECJ (see The Withdrawal Method). 

“We want the EU Court of Justice to be the ultimate guarantor of these rights – If the United Kingdom objects, this will create uncertainty about the effective and coherent application of these rights.”

This will surely remain a sticking point. The ECJ makes its judgements on the basis of EU law; residents in the UK are expected to be judged under British law. Residents of third countries are subject to, and protected by, the laws of those countries. While the UK is a member of the EU British law is subject to EU law; this makes no sense after Brexit. To remain subject to EU law would be a form of ‘associate membership’ with no say in those laws.

“I want to be clear again on these issues: these three priority subjects for the first phase of the negotiations are inseparable. In other words, progress on one or two of these three topics will not be sufficient to move on to discuss our future relationship with the United Kingdom.”

First, the UK must agree to deal with the three issues before discussing any future agreements, to which the UK has indeed agreed, then the three issues are “inseparable” so, unless agreement (which means compliance) is achieved on all three, there is no agreement. Who says the three priority subjects are inseparable?  The EU does. This too is arbitrary, based neither in law nor on logic.

We have already seen the EU’s response to the UK’s proposal on EU citizen’s rights when they are resident in the UK; the response is not to modify their demands but to expect the UK to modify its proposal until, we can reasonably assume, it conforms to the EU’s mandate.

“We also proposed a mechanism for the implementation of the withdrawal agreement, based on: the Court of Justice of the EU on all matters relating to EU law and citizens;and also a joint committee to decide issues related to the interpretation and implementation of this withdrawal agreement outside EU law. This committee could refer, in case of disagreement, to the Court of Justice of the EU.”

They are determined that the UK will not get out from under the jurisdiction of the ECJ. If they stick to this then Brexit will not mean Brexit. From his bitter experience with the EU Yanis Varoufakis offers this advice: It’s “just like the Eagles song Hotel California – you can check out any time you like, but you can never leave.” That seems to be the EU’s point, trapping the UK in purgatory in perpetuity.

Back to Barnier: “The sooner we actually make progress on all these issues in phase 1 of the negotiations, the sooner we can start talking about our future relationship.”

Sticks mostly but here’s an apparently tasty carrot. But the pressure is a sour sauce that should not be swallowed. They will only feed us the carrot when we have swallowed the bitter pill of their mandate, in its entirety. 

“A final point: I have always made it clear that we want to listen to the different points of view in the British debate. It is only natural.”

He intends to meet with representatives of the Lords, the opposition, the devolved governments and others. The EU does not allow the UK’s negotiators to listen to, let alone talk to, representatives of the 27 remaining member states, for fear of disturbing the ‘unity’ it claims to have achieved on Brexit. It might be natural if it worked both ways.

“Of course, I will only negotiate with the UK government.” Of course, of course! ‘Negotiations’ are with the UK government; however, to listen (does anyone believe he won’t speak?) to other points of view is to seek to disrupt the negotiations. He is searching for weaknesses in the UK’s position and he will surely find them, as we would if allowed to “listen to” the other 27 members.

The EU doesn’t know how to make its project loveable; it has to resort to deceit to get enough people to believe in it, or at least to lie down under it.