Bill Jamieson: The UK is being out-played by Brussels over Brexit

There is little sign of progress towards achieving the purported benefits of Brexit, writes Bill Jamieson.

An end to huge annual contributions to the EU budget; control of our borders and immigration; an end to European Court of Justice intrusion in UK affairs; and the primacy of parliament as our guardian of rights.

But after 18 months of tortuous negotiations, disputed timetables and stupefying gridlock, how stands the UK’s departure from the EU today?

Remainers have good cause to crow ‘I told you so’. And those who voted for withdrawal must feel utter bewilderment this week as they read the runes of our potential exit agreement.

On each of the key fronts that exercised 17 million pro-Brexit voters, little has been secured.

The UK government has offered a far larger potential EU divorce settlement bill than the 20 billion euros initially indicated by Theresa May – one that could be worth up to £44 billion - with payments stretching for decades ahead.

Similarly, many thought that when we left the EU we would automatically regain control of our laws and our courts. No foreign court would have the right to overrule British courts, or insist what laws they must enforce within the UK.

But now it seems the government may be contemplating a so-called “compromise” proposal under which UK courts would first make references to rulings by the European Court of Justice (ECJ) in Luxembourg on questions to do with EU citizens’ rights.

Millions voted for Brexit in the expectation that immigration would be sharply reduced. But latest projections from official bodies indicate continued substantial immigration swelling population growth for decades ahead.

As for a return to “parliamentary sovereignty”, a battle is now raging over the government’s decision not to reveal the full information in an economic impact study, while the final cost of the EU exit bill may never be known.

It’s hard not to conclude that the sum total of the UK’s negotiation efforts thus far has yielded little that meets the concerns of those who voted for exit: a classic example of “plus ca change, plus c’est la meme chose”.

Now all of this, of course, comes with the government mantra – ‘nothing is agreed until everything is agreed’. But the EU would not get to a position of agreeing anything until the UK had offered a settlement fee that is a multiple of its starting position.

So much for the Foreign Secretary’s famous retort to the EU that it could “go whistle”. There will be whistling now – from erstwhile Leave supporters stunned by the government’s offer of £40bn plus.

“Britain has bowed to EU demands,” trumpeted the lead story in the Financial Times yesterday, “and agreed to fully honour its financial commitments as identified by Brussels.” (my italics).

The UK, it reported citing “several diplomats familiar with the talks”, would assume EU liabilities worth up to €100bn euros (£88.3bn), following intense negotiations by Olly Robbins, Theresa May’s lead official on Brexit.

Both sides are still “working on how to present the settlement as a net estimate” with the UK pressing for an implied figure of between €40bn and €45bn (£35bn to £39.7bn) once UK receipts and other deductions are taken into account, thus making the net cost much smaller.

“We don’t care what they say their estimate is,” said one senior EU diplomat, “we’re happy to help them present it”. That’s for sure.

Under a system of regular annual payments to avoid a crushing up-front lump sum, “pensions of EU officials for instance,” the FT explained, “could be paid on the basis of annual costs, meaning there will be no final figure for the Brexit bill until the final eligible EU pensioner is dead, many decades from today”.

For a country constantly reminded by the government of its debt and deficit burdens and continuing constraints on central and local government spending, this is an extraordinary state of affairs.

The EU says the UK needs to settle its accounts before it leaves, as part of an overall withdrawal agreement. But some set of accounts is surely due to the UK for the huge sums it has paid towards EU buildings, equipment and staffing. How much of this huge payment is legally due? And how is the proposed settlement figure reconciled with the House of Lords report that nil (as in zero) was legally due by the UK?

What of the writ of the ECJ after Brexit? On the UK’s departure, it would become a wholly foreign court with no British membership. We would cease to belong to the EU treaties. Instead we would enter into a bilateral treaty with the EU, guaranteeing certain rights to EU citizens in the UK and to UK citizens in the EU.

Writes constitutional lawyer Martin Howe QC: “It is unheard of in international relations for a state to accept as binding the rulings of the courts of the other treaty party. It is also unheard of in the many treaties which the EU has made with non-member states for any of those states to agree to be bound by rulings of the ECJ.

“So, if the UK were to agree that its courts would make preliminary references to the ECJ after we had left, we would uniquely abase ourselves in international relations and place ourselves lower than any other state with whom the EU has treaty relations.”

As for immigration and the restitution of border controls, concerns are set to persist long into the future. An estimated 248,000 citizens from other EU countries moved to the UK in the year to March. Office for National Statistics predictions last month suggested that the UK population would reach 70.1 million in 2029. Taking into account babies born to foreign parents in Britain, immigration is indirectly expected to account for 77 per cent of the growth.

Now a new estimate has emerged on the basis that immigration remains at its current level. The 70.1 million figure would be reached by 2026, and would hit 72.9 million by mid-2041. And there may be no way of enforcing new rules on EU nationals once the government’s post-Brexit immigration strategy is eventually reached.

Finally, there is the government’s reluctance to reveal details of an 850-page Treasury study on how the UK’s exit will affect 59 sectors of the economy. Certain sections will not be released.

Ministers say some sensitive details that risk “undermining the UK’s negotiating hand” will be kept private. While these are understandable concerns, it raises questions on two counts: first, that the Commons and Lords Brexit committees are not being dealt a full hand upon which to arrive at their conclusions; and second that it gives power to future governments to withhold or redact information from parliamentary scrutiny – not at all a healthy precedent to set, especially in the wake of claims that the authority of the UK parliament would be enhanced in the wake of Brexit.

Little wonder many will be wondering this morning what exactly has been achieved in the Brexit negotiations thus far. The UK government looks to have been out-guessed, out-played and out-manoeuvred by Brussels. Plus ca change, indeed.