During the latest session of the Exiting The European Union Committee, I questioned how Parliament could end up voting on contradictory things on withdrawal agreement and the EU/UK future framework.

Stephen Kinnock: Distinctions are being drawn between the withdrawal agreement and the political declaration. I wonder whether there is, to some extent, a false dichotomy being drawn here, because we know that the resolution of the issue around the Irish border is one of the withdrawal agreement issues, but the shape and nature of that resolution will dictate the shape and nature of the political declaration. There is an umbilical cord going from the Northern Ireland issue, which is a withdrawal agreement issue, because you cannot have a political declaration that in any way contradicts what has been agreed in that withdrawal agreement segment. Is that interpretation correct, and would you therefore agree that this whole debate is based, to some extent, on a false dichotomy?

Jill Barrett: Is that not the point of the backstop provision in the withdrawal agreement: that the political declaration could envisage a different solution for the future, which, if it is then negotiated and appears in a future relations agreement, could supersede the backstop? If it is not agreed, the backstop would have to be relied upon.

Sir Jonathan Faull: That is the default option. One has to go back to the structure of Article 50 and the way the negotiations have proceeded so far. The European Union insisted that there were three preliminary threshold issues that had to be addressed before getting into the details of the withdrawal agreement. The United Kingdom went along with that sequence. That is where we are today. Those three threshold issues are: the land border between Northern Ireland and Ireland; the fate of their respective citizens stranded on either side of the new border, when it is created, between the UK and the EU; and money. While everything is still to be agreed, and nothing is until everything is, that is the basis on which the British negotiators have agreed so far to conduct the negotiations. The “everything is agreed” bit applies to the withdrawal agreement. It obviously does not apply to the unknown future long-term agreement between the United Kingdom, having become a foreign country, and the European Union. Those negotiations will be conducted in a different legal framework and are likely to take quite some time.

The link is expressed in this notion of taking account of the framework, which of course therefore has to exist. There is an argument and negotiations to be had about how detailed the framework can possibly be. It is true, given the various red lines and the structure of this very country, that what happens on the border between Northern Ireland and Ireland will have some impact—I am not going to say how much; I simply do not know and I do not think any does at the moment—given Northern Ireland is an integral part of the United Kingdom and nobody in Brussels is suggesting it is not, on the relations between Great Britain, as the other bit of the UK, to simplify it, and the rest of the European Union. Yes, of course, there are links between each of these issues, but there is a sequence partly laid down in the treaty’s Article 50, partly agreed, however reluctantly, between the negotiators as a matter of sequencing the various steps, and we are somewhere along that journey. I am not quite sure how far.

Stephen Kinnock: Lord Lisvane, would you identify this as having the potential for a major constitutional issue for Parliament? If MPs are being asked to vote on two motions, the withdrawal agreement and the political declaration, and there is potentially a fundamental contradiction between the two where, for example, you have the Northern Ireland issue resolved in one way but a political declaration pointing in an opposite direction, how do parliamentarians resolve that potentially fundamental constitutional issue?

Lord Lisvane: There are a lot of moving parts in this. One would be whether you have separate motions on the withdrawal agreement and the political declaration, or whether they are brigaded into one. If there is a contradiction between those two elements, I would expect that to be reflected in proposed amendments to the terms of the House of Commons approval of both or each one separately.

Stephen Kinnock: Turning to a different subject for Ms Gostynska-Jakubowska, there is potential for Parliament to ask the Government to go back and negotiate a different or better deal as a result of the voting in October. The knock-on effect of that could be that an extension of Article 50 is required. That would in turn probably impact on timing of the European parliamentary elections and the multi-annual financial framework, with possibly some connection to the new Commission coming in. There is obviously no precedent for a member state not participating in European parliamentary elections. Can you say a bit about how you think that might work in practice? Let us say, for example, a time-bound extension of Article 50 is agreed by unanimity in the European Council. What arrangements would be put in place? How formal would the legal agreement between the UK and the EU need to be in order to secure an extension of Article 50 in the context of the European parliamentary elections?

Agata Gostynska-Jakubowska: Thank you for this question. It is a very speculative one. I am happy to engage in this exercise, but it will be my very personal opinion on how the EU might respond. There are several questions in the one you have just asked. First of all, the EU 27 is negotiating with the British Government, not the British Parliament. If the British Parliament rejected the withdrawal agreement, then instructed the Government to, as if you have just said, extend the negotiations, the British Government would first have to come to the EU and ask for it.

The timing will be important, as you mentioned. Frankly speaking, it is quite unlikely that the EU would be willing to extend the Article 50 talks if the withdrawal agreement was already agreed between the EU 27 and the British Government. Of course, the rationale behind such an extension would matter in those negotiations. Even though the EU 27 are sad to see the UK go, there is this impression of Brexit fatigue, if I may assert this.

Stephen Kinnock: They are not the only ones.

Agata Gostynska-Jakubowska: They are sad to see the UK go, but they also respect this choice; they have turned the page; they want to move on. In some capitals, there might already be impressions that Brexit negotiations are unpleasant distractions from Europe’s other pressing challenges. If the British Government—and this is very speculative on my behalf—came to the EU 27 in December 2018 and asked for an extension, that would be unlikely, particularly because it requires unanimity, but also because of the political agenda that you just mentioned. There are elections to the European Parliament between 23 and 26 May; the date has been agreed already, and there is an entirely new political cycle. At least political leaders in the European Parliament would like to have Brexit out of the way when they gear up for the European Parliament elections.

Let us assume the extension was agreed, as you said, which is very unlikely. There would be a problem: what happens? If the extension was agreed, the UK would still be a member state. What would happen then? Would the UK participate in the EU Parliament’s elections? Again, the European Parliament would be reluctant to agree to this. What is the point in agreeing which committee British MEPs should participate in, which functions they should have in the new European Parliament, when they will be leaving perhaps several months later? I understand there is a school of thought that, in theory, it is possible to send national parliamentarians to the European Parliament for this specific period of time. That was the case with new acceding countries. For example, Romania sent national parliamentarians to the European Parliament from January 2007 until November, when it held its direct elections to the European Parliament. As I have written in some of my analysis to date, it is extremely unlikely, in my personal view, that the EU 27 would allow for such an extension if there was already a withdrawal agreement on the table. Discussions about the political declaration are probably something different.

Q1551 Stephen Kinnock: Sir Jonathan, it seems clear, to most people anyway, that a lot of the negotiation about the future relationship would need to take place during the transition period. How do you see the institutional framework for that working? Presumably there will no longer be a role such as the one Monsieur Barnier has, and it will be the United Kingdom negotiating as a foreign country, just like Canada or any other non EU country. It would go into DG TRADE and it would be conducted by the senior officials in DG TRADE as usual.

Sir Jonathan Faull: Unless special arrangements were put in place administratively, yes, indeed, that would be the case. It would be a trade negotiation with an important foreign country.

Agata Gostynska-Jakubowska: I want to supplement what Sir Jonathan just said, because I have been thinking about this question as well. It seems to me that the European Commission will probably request that the typical international-negotiations-mode mechanism is applied, but, knowing the EU institutions a bit, I would expect some wrangling in between the EU institutions. I cannot totally exclude the situation where the European Parliament comes and says, “We have had such a good framework with the Article 50 negotiations that we would like to be similarly engaged”. As you know, the European Parliament has had quite a big role in those negotiations. You will perhaps have member states saying, “We want to have a greater say as well”.

Because it is not clear whether this will be one set of negotiations or whether we will have different negotiations, we have to keep in mind that, for example, in the area of common foreign and security policy, it does not have to be the European Commission negotiating. Actually, it should be a high representative. Correct me if I am wrong on this one. Those arrangements will still have to be made, but I do not think we are that far yet.

There is another question. The UK will be dealing with a totally different European Parliament and European Commission. I could argue that it is plausible that the next European Parliament might be less economically liberal without the 73 British MEPs, who across the line were pushing for this economically liberal agenda. The European Parliament might be less willing to push this forward, particularly because some of the seats of the current MEPs will go to countries like France, Spain and Italy, which you could argue, as VoteWatch has suggested in its analysis, might be slightly more protectionist in their approach. That would have an impact on the negotiations between the UK and the EU when it comes to the future relationship. Sorry, I think that was a long answer.

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