Time to appoint an independent Brexit chair

Mar 05, 2018
Sunday Business Post, 4 March 2018

Is the EU bringing a gun to a knife fight?

Senior British cabinet members have been offering vague aspirational utterances about avoiding a dystopian Mad Max environment post Brexit, or likening an Irish border crossing to the divisions between the boroughs of old London town.  This almost casual and contradictory approach, where ministers appear to be talking across each other, has been met with 110 close typed pages of draft European legislation.  It formally lists the involvement of the 27 remaining EU countries in setting out the terms and conditions for the UK availing of access to the Customs Union and Single Market until December 2020. 

These are fundamentally different responses to the same Brexit problems of transition and the creation of a trade border that isn’t a traditional border with Northern Ireland.  The reaction in Great Britain and Northern Ireland to the Barnier law offering has been predictable – so predictable that you have to wonder what the Europeans are really up to.  Did anyone in Brussels seriously expect that the “European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” (presumably ECDWAWUKGBNIxEU&EAEC for short) could possibly be acceptable?  Has something been lost in translation?

Lost in Translation

I don't think though that the difficulty is now merely one of political aspiration on the part of both sides.  We are also seeing a clash between two quite different legal approaches to resolving the relationships between individuals and countries.  The UK views law as through the perspective of a common law lens.  Common law is all about precedent and interpretation and it places the judge at the centre of the legal system.

Contrast that to the civil law approach which is prevalent in the vast majority of the EU member states and which, it seems to me, is informing the Brussels approach to Brexit.  Civil law does not look to precedent.  Rather it asks what does the law actually say (the law in this instance being the EU treaties) and then seeks evidence to fit the situation to the legal code.  The background against which the law was written and the approach of those who wrote it are essential to understanding how civil law is to be applied.  The Draft Withdrawal Agreement is an inevitable result of the civil law approach. 

Both the common law and civil law approaches are valid.  The overtures of the UK government in the context of Brexit are more understandable to those who expect that treaties are there to be interpreted.  The draft law of Barnier and his colleagues becomes more understandable if we accept their overarching reliance on codified law, and the need to discern the facts so that the code can be applied. 

Civil Service Culture

We may also need to recognise that there is a clash of cultures in the civil service organisations advising the main protagonists.  Most people who have had to deal with either Brussels or Whitehall on a regular basis – my own experience has been dealing with them on tax issues - are struck by the industry of both civil services.  There are bright people wandering in the corridors of the British and European mandarins but they don’t address issues in the same way. 

While these are generalisations, it seems to me that the EU Commission ethos reflects a “just in case” approach.  They analyse every problem from all possible angles so that all bases are covered.  The UK civil service approach is different.  Whitehall operates on the basis of “just in time”.  They wait to see how the situation evolves, and then they formulate an evidence-based approach almost at the last possible moment, having garnered as much evidence as they possibly can. 

As a consequence Europe is increasingly frustrated because it does not know what the UK wants from Brexit.  The UK is increasingly frustrated with the EU approach because it has not really completed the process of deciding what it really needs from a transition. 

These clashes of legal and civil service cultures could ultimately lead to a total breakdown in the negotiating relationship, if the posturing we saw this week is carried out to its inevitable conclusion.  We may be approaching a stage where some form of independent arbitration will be required to make Brexit happen in a way that does not destroy the rights and livelihoods of either UK or European citizens and the businesses in which they work.  A credible and acceptable chairman, who can understand and reconcile the competing approaches, is now needed to moderate the Davis/Barnier discussions and the culture and attitudes of those who advise them.  Someone of the calibre of the late Peter Sutherland comes to mind. 

If an unacceptable Draft Withdrawal Agreement is as far as the Brexit process has got to in just under a year, different negotiating methods have to be considered.  Otherwise there will be a real fight where there will only be losers. 

Brian Keegan is Director of Public Policy and Taxation at Chartered Accountants Ireland