David Hannay is a member of the House of Lords and former UK ambassador to the EU and UN.
It might seem a trifle churlish for someone such as the present writer, who has spent the last year, in print and in Parliament, urging the prime minister to come forward with a unilateral offer on the status of EU citizens in post-Brexit Britain to damn that offer with faint praise now it has finally been made. The trouble is that not only is the offer distinctly on the late side, coming as it does after rather than before the EU27 set out their own approach; but also that it risks in the detail being too little.
Why does being late matter? The reason is that the statement Theresa May made to the European Council on June 22 could have been made within a few weeks of the referendum outcome, as both Remainers and Leavers were urging should be done.
If it had been made then, it would have influenced in a positive way the atmosphere in which the EU27 set about constructing their own negotiating position, an atmosphere which, during the long months of aggressive rhetoric typified by the Lancaster House speech in January, has soured considerably. And it could also have stemmed the haemorrhage of EU citizens already leaving the UK, leaving jobs which benefit our economy and society. Above all it would have lifted some of that cloud of anxiety which has been hanging over 4 million citizens right across Europe.
Is the proposal too little? It will be easier to judge that when the promised detailed paper emerges on Monday. But it very well could be. This is a complex set of issues where the devil certainly will be in the detail.
What can be said is that the final outcome is pretty well certain to be somewhere between the proposal the British government has now tabled and the EU 27’s negotiating position; that is to say the parameters within which that outcome will be found have been sharply narrowed. But reaching agreement will not be easy and it will not, in all probability, be quick, so a lot of damaging uncertainty will persist.
Are the faults for this unsatisfactory state of affairs all on one side? Not entirely. The EU27’s maximalist position on the jurisdiction of the European Court of Justice over these status issues looks like an unnecessary and unjustified complication.
After all the agreement on the status of EU citizens is to be enshrined in a treaty between the UK and the EU; that treaty will need to be ratified by our own parliament; and to do that, Parliament will need to ensure that our domestic legislation and our courts are capable of giving effect to the commitments in the treaty.
Will there need to be some dispute settlement procedures to resolve any disagreements that could arise? Almost certainly. Which is why it is lamentable that the government is being so dilatory about grasping the need to define such a procedure which will be needed also to manage disputes in other parts of any overall deal that is going to be struck.
Yet again it is striking just how slow, hesitant and unsure the government is showing itself to be as it gets into these time-limited negotiations. No doubt the divisions within its own ranks is the main reason, but that is an explanation, not a justification.
It is no good thinking that everything can be resolved by some magically emerging transitional arrangement. There are cliff-edge risks lurking on this issue of the status of EU citizens, the most obvious ones arising if no deal is struck at all. Those risks really need to be avoided.
Want more InFacts?
Click here to get the newsletter
Edited by Bill Emmott
Even after serving as home secretary, and now prime minister, TM hasn’t a clue about anything she is attempting to do.
She does not live in the real world, listens to very bad advice and accepts it, now she is, since the election she called, swimming in treacle, with no bargaining power whatsoever.
If she had any sense she would either resign, or call a new GE in the near future.
Leaving the EU is political suicide anyway. There is no possible ‘deal’ that politicians can do, even with the support of knowledgeable civil servants, that will give us what we have now, as full, influential, strong members of the EU, for any less cost.
We just give up all influence on the future direction of the EU and become fringe observers.