Bill Jamieson: Time and patience are running out as clock ticks on Brexit

Progress - or lack of it - in UK-EU talks has been depressing and could have serious consequences says Bill Jamieson

Big Ben may be silenced but the clock itself is still running  just like the one in Brussels over the UKs Brexit negotiations.
Big Ben may be silenced but the clock itself is still running  just like the one in Brussels over the UKs Brexit negotiations.

Scene: a windowless meeting room, dominated by a large table. On one side, First Minister Nicola Sturgeon (NS) is flanked by Mike Russell (MR) and top officials from the Scottish Government, surrounded by a voluminous pile of papers. On the other side are UK ministers and officials, with David Davis (DD), Secretary for Scottish exit negotiations, sitting centre - with a pocket notebook.

On the wall, a loudly ticking clock. Time: Post second independence referendum, in the future.

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DD: Good morning, First Minister! I see you’ve brought copious files. We just need a small notepad, ha-ha! But my congratulations again on your second referendum, er, result.

NS: Very belated, Mr Davis. It was 18 months ago. Can we get on to trade and tariff arrangements on Scottish independence?

DD: Of course. However, there are certain matters to settle first. There’s the question of UK nationals resident in Scotland. We insist they must continue to enjoy full rights under English law and UK judicial protection…

NS: There can only be one law in an independent Scotland. That’s Scots law…

DD: If I may say so, Ms Sturgeon, your eleven so-called, ahem, position papers are too vague and ambiguous. We’re not persuaded by them. And the clock is ticking.

NS: That’s why we want to talk about post-independence trade and tariff arrangements now…

DD: We can’t possibly discuss these because we need to settle financial arrangements first – that’s the repayment of Scotland’s share of UK debt. And that, based on our calculations of population share would be over £100 billion. Payable up front…

NS: Er, erm, but –

DD: The clock’s ticking, First Minister…

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How piquant it might have been – and could yet be – if Scotland found itself in Brexit-style independence negotiations with the rest of the UK. Might not the boot, so to speak, be on the other foot?

UK-EU talks on Brexit have now entered the third round, with no apparent agreement even on the order of topics for discussion. EU chief negotiator Michel Barnier has also dismissed the UK’s 11 position papers as evasive and ambiguous.

We were warned these negotiations would be complex, far reaching and requiring baffling detail. And outline agreement looks far beyond the horizon, even before a final draft goes before the EU parliament and the 27 other member states for ratification.

The UK, with a long unhappy history of Euro fudge summits, now faces the negotiating nightmare chillingly described by the former Greek finance minister Yanis Varoufakis in his book Adults in the Room: My Battle with Europe’s Deep Establishment: an endless run-around between the Byzantine constructs of the European Commission, the Council of Ministers, the EU parliament and individual heads of state with Germany’s Angela Merkel to the fore.

Progress – or the lack of it – has been depressing. Media attention has focused on the growing chill between Barnier and David Davis, with the latter threatening to boycott the next scheduled press conference unless there is a change in the “stubborn and unreasonable” attitude taken by the EU. So where amongst the morass of disputed detail might agreement be found?

On Citizens’ Rights, the UK has proposed that EU citizens living in the UK should have equivalent rights to British citizens, in contrast to the current system where EU citizens actually enjoy greater rights in areas such as export of benefits and immigration rights for non-EU spouses. However, the UK has already softened its stance, proposing that EU citizens keep more of their ‘super-rights’.

The EU insists that its citizens living in the UK should keep the same rights as now. According to Hugh Bennett of Brexit Central who has waded admirably through the documents thus far, a joint technical note identified 44 negotiating areas, on 22 of which the UK and EU had already reached agreement, along with 8 which required further discussion, and 14 on which there was “divergence”. “Most of the outstanding disagreements”, says Bennett, “should be possible to iron out with a few more concentrated negotiating sessions.”

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The big snag is how all the rights set out in the agreement should be legally enforced, with the EU insisting the European Court of Justice maintains a direct ability to enforce EU citizens’ rights in the UK after Brexit. The UK is adamant the direct jurisdiction of the ECJ should end. Agreement could be reached on an independent arbitration process.

On the Northern Ireland-Ireland border, the UK has committed to an open and invisible border with no new physical infrastructure on the UK side, preserving the Common Travel Area between the UK and the Republic of Ireland.

The EU has not yet published a position paper on this, despite identifying it as one of three key areas it wants to resolve at an early stage. Earlier directives indicate caveats about “respecting the integrity of the Union legal order” and being “in conformity with EU law.” The problem, says Bennett, is that preserving a fully open border will inevitably be slightly “leaky” – something the UK says it is prepared to accept to preserve the Good Friday Agreement. But a deal needs to be reached on what customs arrangements for moving goods will be - and the EU has yet to engage on technical customs issues.

On future customs arrangements, the UK paper outlines a streamlined, ‘high tech’ customs arrangement requiring a minimum of physical infrastructure and checks at borders. The EU says discussion at this stage is incompatible with its preferred running order of negotiations. But a technologically streamlined model would bring benefits, regardless of whether tariffs of some degree are imposed after Brexit – an easy win-win, says Bennett, for both sides.

The explosive division is the Brexit financial settlement. The UK wants to pay as little as possible, as late as possible. British officials are concerned about being “salami-sliced” by the EU over the ‘bill’.

But the EU has an all too predictable problem: facing a net €12 billion (£11.1 billion) hole in its annual budget on Brexit. Failure to secure a significant sum from the UK, says Bennett, would force it either having to go round the remaining wealthy member states with a begging bowl or having to cancel future projects funded via the EU budget. “Money cannot be other than a key priority for the EU”.

Figures have varied wildly, but a deal of around €40 billion (£36.9 billion) looks possible. One option to make this pill easier to swallow for the UK would be phasing the payments over a transitional period, with Britain continuing with a similar level of annual budgetary contributions for a couple of extra years.

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Fanciful? All this is open to the cynic’s objection: when all else fails, clutch at straws. There is a real danger that patience may run out, with no agreement reached by the deadline. Little wonder some fear ‘transitional arrangements’ may prove a permanent state. Enter that well-known Brussels device of the ‘stopped clock’ – adding a touch of Salvador Dali’s melting time-piece to an already surreal negotiating marathon. Hang on in – if you can.