Happy New Year! If the Brexit rollercoaster that was 2017 gave you cold sweats and made your stomach turn over, I have some unfortunate news.
You see, 2018 is going to be more of the same, but much louder and at higher speed. You might not notice the acceleration at first – the EU won’t formally agree its position for the next round of talks until March – but that’s just the ascent before the plunge. It will be fast, short and will probably involve some shouting. The nine months between now and when the European Commission expects to start the ratification process for the UK’s divorce deal will mostly be spent talking about a post-Brexit transition, since there isn’t enough time to hammer out a trade deal with the EU before the March 2019 deadline.
But those talks will be all about maneuvering for what comes next. With Theresa May putting the pressure on for a full trade agreement in what is a ridiculously tight timeframe, negotiations are either going to be intense, or an intense disappointment if the UK is forced to ask for an extension to the Article 50 process, as some now suggest is inevitable.
Either way, the UK will be attempting to do something it hasn’t done in nearly 50 years and faster than anyone thinks is possible. Controversy over chlorine-washed chicken from the US is just the start: the British public is also about to learn just how political trade deals can be. Buckle up.
So where does this leave Scotland? Despite demands from the devolved administrations, the UK Government has refused to give them a seat at the table in Brussels, but the process they are engaged in is, indirectly, all about trade.
Outside the EU and its regulations, the UK needs to ensure a common regulatory regime to give potential trading partners, including the EU itself, confidence that terms will be respected throughout the land. So while talks between the UK Government and devolved administrations look like just another constitutional wrangle over powers, they’re actually all about trade and have international significance.
Those talks seemed to take a step backwards before Christmas, with Cardiff and Edinburgh protesting that the guarantees offered on the Irish border added another layer of complexity to working out who gets control of powers returning from Brussels. If agriculture rules in Northern Ireland are in ‘full alignment’ with those in the Republic, and the (still suspended) Stormont Assembly has the authority to put that into practice, how does that sit with a planned UK-wide framework on agriculture?
More fundamentally, there is a gulf between the two sides on a basic principle. The Scottish Government is willing to negotiate joint control in certain areas, but will not accept those powers being retained at Westminster in the first instance. Beyond the Scotland Office and the Scottish Tory group in the Commons, this still doesn’t seem to have sunk in.
Before his ministerial demise, Damian Green talked up agreement on joint frameworks in individual policy areas, but failed to recognise that a joint framework on pesticide control won’t happen if the SNP can argue devolution is being undermined. Senior nationalist figures have laid blame for the lack of progress at the door of the Cabinet Office and 10 Downing Street, while praising a more pragmatic approach taken by the Brexit department. If David Davis takes on a bigger role in talks at the Joint Ministerial Committee (JMC) in the new year, perhaps the atmosphere might change.
Downing Street must hope that it does because a bigger headache may be on the horizon. Davis has said he wants a “Canada Plus Plus Plus” trade deal between the UK and EU, in a reference to the CETA agreement ratified by Brussels and Ottawa in 2016. This is a stretch – at least one of those plusses refers to trade access for financial services, which EU chief negotiator Michel Barnier insists cannot be part of any agreement. CETA also took seven years to negotiate and nearly foundered at ratification stage. But if Davis is asking for Canada Plus, then Nicola Sturgeon should be aware of the precedent he is setting.
Canada’s written constitution gives the federal government the power to negotiate international treaties, and WTO rules generally require governments to respect deals that they’ve signed regardless of domestic difficulty. Nonetheless, the CETA negotiations saw Canadian provinces given a direct role in the talks.
This wasn’t magnanimity from Ottawa. The EU insisted that provinces be given a direct role in talks because they had competence in areas that could impact any deal, including the most contentious aspect of any trade agreement, agriculture. Previous attempts at strengthening trade links between Canada and the EU failed precisely because the provinces weren’t on board.
In fact, it was the then-EU trade commissioner Peter Mandelson, who is reported to have told Quebec Premier Jean Charest in 2007 to round up his fellow provincial leaders if he wanted better trade with Europe. As a result, Canadian provinces were given unprecedented influence over CETA, and took part in at least six of the 12 working groups. Provinces were part of the ratification process because they had to amend provincial laws to allow CETA to take effect. Holyrood is unlikely to be involved in a UK-EU trade deal, but future agreements with third countries could impact on devolved regulations beyond the 111 areas of EU legislation currently being discussed by Edinburgh and London. The 1998 Scotland Act reserves power over trade to Westminster, but it’s already been established the devolution was drawn up without considering the possibility of Brexit.
The JMC talks, seen as something of a sideshow by the British commentariat, already have the potential to spark a constitutional crisis. If Sturgeon really wants to shake things up, she’ll demand her own Canada Plus – trade talks plus Scotland.