UK Transport and Brexit News & Views No. 69

Mark’s EU Week for Transport

Brexit talks are due to recommence in Brussels with UK and EU officials discussing the White Paper and Withdrawal Agreement.  It will be an interesting meeting. The contrast in the reaction to the Chequers agreement and the White Paper on either side of the Channel has been stark. Almost no official comments from the EU, but meltdown in Westminster. Eight MPs in nine days have quit some role or other after Brexit policy was announced, including most notably David Davis and Boris Johnson.  But behind the scenes here in Brussels, there is a sense that they have secured a huge concession from the PM, above all a commitment to introduce a ‘common rule book’.  Of course, it is being portrayed as applying to only goods, not services. But when you read the small print you can see it will in fact ensure the application of EU law for vast swathes of economic activity. In principle, it should be welcomed by transport because, as a largely international industry with a high degree of integration, we need regulatory consistency on both sides of the Channel.

But I have a major concern with that, namely it is not accompanied by the necessary levels of transparency, accountability and influence commensurate with the proposed degree to which the EU will continue to regulate our sector. The Common Rule book is intended to apply to goods and agri-food to facilitate ‘frictionless access’ but the White Paper spells out it will also cover other areas that would be relevant to transport through ‘non-regression’ clauses, including state aid, employment law, environment policy, climate change policy and consumer protection. It will also commit the UK to adopt all future EU law in those fields. For industries like transport, we will become a rule taker not a rule maker. Of course there are safeguards. A Joint Committee of EU & UK Civil servants will meet on an almost daily basis to consider all notified new EU laws. It will consult the UK Parliament and the devolved administrations, where appropriate. It’s not clear if matters falling outside the scope of the future relationship will be subject to Parliamentary referral. Parliament, where consulted, could decide not to pass a new law.

However, in practice this rarely ever happens and in future no doubt Parliament will heed the dire warning in the White Paper that this would have ‘profound consequences’, including breaching our ‘international obligations.’  In the case of the Joint Committee not agreeing to a new EU law, it can refer such a dispute to an independent arbitration panel, but ultimately the European Court of Justice will decide. The White Paper is totally silent on how industry will be involved in this process at an EU level, in the work of the Joint Committee or when matters are referred to Parliament or the devolved administrations.

I’m sure this lack of transparency and accountability will be a key theme of our House of Lord’s Parliamentary Roundtable on Wednesday. If UK transport is to be largely regulated by the EU how can we have a say? We need some answers. As Dominic Raab embarks on his new role as Secretary of State for Exiting the European Union, there are plenty of critical questions floating around that absolutely need answering.

This week’s song of the week is White Paper by Marillion. Enjoy!

1. UKTiE Parliamentary Roundtable on Brexit and transport 
A reminder that on Wednesday this week UKTiE members, Lords and MPs will discuss the Government’s recent publication on the Framework for the UK-EU partnership for transport as well as the Cabinet Chequers Agreement and the White Paper in the House of Lords at a Parliamentary roundtable. In light of recent developments concerning the Government’s overarching Brexit position, this is an opportune moment for business to make the case for what we would like to see and how business and government can find a route to get there in a way that keeps business thriving, and passengers and goods moving. The roundtable will be hosted by Lord Berkeley. Speakers include from Labour: Baroness Hayter, from the LibDems: Baroness Randerson,  from the European Parliament: Lucy Anderson MEP, a legal perspective from Emma Giddings,  and the view from Berlin from Stefan Borst. Dominic Raab MP has been invited. Please let us know if you would like to attend the event.

2. Brexit White Paper: What is the ‘common rulebook’?
In light of the frantic discussion surrounding what the Brexit White Paper, released last Friday by the UK, really means, the Institute for Government has published a useful explainer on the Government’s Brexit White Paper. One of the main elements of the White Paper contends with a proposed ‘common rulebook’ whereby “the UK and the EU would maintain a common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules, covering only those necessary to provide for frictionless trade at the border“. The more controversial aspect, however, regards the UK suggestion that the UK Parliament consent to any new rules, even if the joint committee has updated the agreement to reflect any new rules. This will represent an issue for the EU as the Single Market is designed in a way that national parliaments do not have a veto over the incorporation of new EU rules into their domestic legal orders. The White Paper itself says that “if an agreement had been updated to reflect a rule change, this would become a binding obligation on both parties in international law… this means that the UK Parliament could decide not to give effect to the change in domestic law, but this would be in the knowledge that it would breach the UK’s international obligations, and the EU could raise a dispute and ultimately impose non-compliance measures.” It will be worth noting the reaction of the UK Parliament to be both given more power in the process but also backed into a legal conundrum at the same time.

3. European Parliament Brexit Steering Group reacts to Chequers agreement and White Paper
Meeting to discuss the Chequers Agreement and the White Paper. the European Parliament’s Brexit Steering Group “welcomed that the UK is proposing that the future EU-UK relationship take the form of an Association Agreement. Given this has been the Parliament’s position from the very beginning the BSG agrees with this approach which would place the future EU-UK relationship in all its dimensions – economic, sectoral, security, foreign policy – on a firm footing within a coherent governance structure.” Despite the positive overtones, the Brexit Steering Group did stress that “negotiating a new relationship with the UK post-Brexit is conditional on an orderly withdrawal of the UK from the EU on the basis of a Withdrawal Agreement (WA). It reconfirmed the Parliament’s position expressed in its resolutions that it will not consent to a WA, including a transition period, without a credible “back stop” provision for the Northern Ireland/Ireland border to prevent a hard border and safeguard the integrity of the single market, faithfully reflecting the commitments entered into in the Joint Report of 8 December 2017.” A positive reaction from the Brexit Steering Group but one tempered by fresh warnings over its conditions for an orderly withdrawal, one which would form the necessary foundation for a new UK-EU relationship to be negotiated.

4. UKTiE has also put together the latest timetable for Brexit. We will keep this up to date as the process develops:

  • 29 March 2017 – A50 triggered.
  • 5 April 2017 – European Parliament adopted Brexit guidelines.
  • 22 May 2017 – Brexit negotiating directives approved by Council.
  • 19 June 2017 –  Negotiations formally began.
  • 23 March 2018– European Council agreed guidelines on the future trading relationship.
  • 28-29 June 2018- European Council summit.
  • 18 July 2018- UKTiE House of Lords Event ‘The Framework for the UK-EU partnership for transport’.
  • 30 September 2018 – Date by which EU’s chief Brexit negotiator, Michel Barnier, wants to conclude the terms of Britain’s exit from the Union.
  • 18-19 October 2018 – European Council summit.
  • 6th November 2018 – UKTiE Forum, European Parliament, Brussels
  • 30 March 2019 – Britain formally exits the EU, following ratification of Brexit by all other member states and the European Parliament.
  • May 2019 – European Parliament election.
  • 31 December 2020 – End of transition period. (TBC)
Mark Watts
UK transport in Europe (UKTiE)
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