The bureaucratic battle to make the Brexit deal work – POLITICO



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LONDON — Brexit means bureaucracy — at least when it comes to making the deal stick.

After the U.K.-EU trade deal scraped over the line on Christmas Eve, attention shifted to how exactly it will work in practice. Some businesses argue the disruption and costs triggered by the deal’s non-tariff barriers have already laid bare the shortcomings.

Yet Whitehall’s corridors echo with whispers of a more existential threat. A scramble is underway to try and implement the deal’s “institutional framework” — or, in the words of one official familiar with this effort, the “batshit ‘House of Cards’ bureaucracy” it demands. 

“These committees are crucial to iron out some of the many problems that are going to arise under this agreement,” said Catherine Barnard, a professor of EU and employment law at the University of Cambridge, and a fellow of the U.K. in a Changing Europe think tank.

Rather than just an obscure structure for administration, the network of committees, working groups and forums outlined in the trade deal will be crucial to its survival, as it faces challenges from regulators, businesses and lawyers. Yet details from either Brussels or London remain scarce.

A deal like no other

Until April last year, Anton Spisak was a member of the British negotiating team, trying to piece together the deal’s governance structures. He’d looked elsewhere for inspiration, but this was no ordinary free-trade agreement. 

“A lot of international agreements have annual meetings and some institutions which are similar, but rarely such in-depth operations,” said Spisak, in his current role as policy lead in trade and economics at the Tony Blair Institute. “It’s very different for this agreement because it’s a much more integrated partnership.”

According to Spisak, anyone trying to get their head around how the deal will be managed needs to realize the U.K. and EU have signed three co-dependent deals rather than just one. “This is a multilayered relationship with three different layers of governance,” he said. 

These three bureaucratic buckets include the international structures laid out in the Withdrawal Agreement, which set out the terms of Britain’s EU departure and was finalized in 2019. Then there are the bodies needed to operate the Northern Irish Protocol, designed to protect the Good Friday peace agreement. And then there’s the Christmas Eve deal itself, the Trade and Cooperation Agreement (TCA) — which has its own complex governance needs.

Drilling down into the TCA reveals no fewer than 19 specialized committees and four working groups, each with complex reporting lines into one another. At the top of the committee tree in the TCA is the Joint Partnership Council, in charge of the political oversight of the deal.

It’s not yet clear who will represent the U.K. on this council, but people familiar with the Whitehall machinery tip Cabinet Office Minister Michael Gove, who already serves a similar role for the U.K. on the Withdrawal Agreement joint committee.

The power of that committee has already been made plain. In December last year, it unveiled major decisions on issues ranging from social security to the Northern Ireland Protocol’s application. 

But the power does not stop there, with significant chunks of decision-making fed down to technical committees. The fact the Joint Partnership Council is only due to meet once a year means these committees “become much more important,” said Barnard. “Any committee that has the power to amend or at least recommend the treaty be amended is already quite important.” 

There’s another important question, Barnard noted: whether these committees can issue decisions, or just recommendations. If it’s the former, they will be legally binding on the U.K. and EU.

The scrutiny gap

But while these yet-to-be-formed groups have a great deal of power, there are few mechanisms for overseeing how they wield it, and in whose interests their decisions are made.

Once formed, scrutiny of these of the technical trade specialized committees (TSCs) will have to follow, not least because they will face heavy lobbying. Businesses’ number one question right now, according to Institute for Government associate director Maddy Thimont Jack, is: “How do you lobby this structure?”

The most obvious watchdog in the U.K. parliament would be a select committee of MPs. But the long-running committee on the future relationship with the European Union was disbanded earlier this month, and it’s not clear what kind of replacement there might be, while the separate international trade committee already has a lot on its plate.

There’s devil in the detail of the Christmas Eve deal for lawmakers on both sides of the Channel. The TCA outlines a “Parliamentary Partnership Assembly” made up of MEPs and British MPs “as a forum to exchange views on the partnership.”

One politically sensitive issue is whether civil society groups, including trade unions, will be able to have their say on how the deal works. POLITICO’s recent study of those shaping the U.K.’s non-EU trade policy shows just how hard it can be to get the balance right. There’s also the question of whether such groups will demand a greater say in all trade deals if they appear to get special treatment with the TCA, an official said.

Fights are inevitable

Rows are likely to erupt whether or not Whitehall is prepared for them.

“I think the first fights under the agreement will be with respect to the level playing field,” said Barnard. Membership of the TSC overseeing this thorny area — a key flashpoint in negotiations — is still to be determined, but the EU and U.K. get five members each and then must find five others who are neither EU or U.K. citizens to serve as chairpeople. 

Most rows will likely have to be passed up the chain, Spisak said. “Free-trade agreements would normally delegate specialized issues to technical committees, but there was just no way of preventing sensitive issues being escalated to the Joint Partnership Council in this instance. The risk is that ultimately they become political issues.”

The question of how Whitehall can try and handle all this is already weighing on the U.K. government, according to officials. One early point is whether or not handling the EU-U.K. relationship should sit with a dedicated EU minister in the Foreign, Commonwealth and Development Office (FCDO), said Thimont Jack, while there’s speculation the Cabinet Office, which traditionally coordinates work right across the U.K. government, could take charge. Yet giving the EU special treatment in this way could worry backbench MPs eager to move on from Brexit.

A tangle with no end 

Whatever guise it takes, the U.K. government can’t duck the question of how it will manage multiple Brexit-related agreements for long. Lawyers warn that the committees must be formed to comply with the TCA, which is an international treaty.

Unanswered questions abound, with Spisak saying it is still uncertain “just how embedded Northern Ireland will be” in the EU’s single market, an entity with “about 2-300 legal acts, regulatory changes or amendments each year” that London will be obligated to keep track of. “You probably need a centralized government function with links to the EU,” he added.

One British official familiar with efforts to create the committees said the deal had created a “mini-EU.” Another former U.K. official who worked in Brussels until last year said it would be like the European Free Trade Association (EFTA) council, the intergovernmental organization of Iceland, Liechtenstein, Norway and Switzerland — only far less transparent. 

Minutes of some TCA groups will be so thorny, an EU official said, it will make their notes from the bloc’s notoriously opaque comitology procedures “read like [steamy thrillers] Mills & Boon” by comparison.



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