Internet companies as copyright enforcers? It's been tried before. Read it in The Closing of the Net - only £15.99!

European Parliament Brexit Resolution Roll call vote on 13 December 2017

The European Parliament is not at the negotiating table, yet it does have ways of leveraging influence over  the Brexit negotiations. Why does its position matter? Especially now that the British  Parliament has narrowly won the right to vote on the final  Brexit deal.

On 13 December, the European Parliament  passed a Resolution on the State of play of negotiations with the United Kingdom.  The Resolution  expresses the European Parliament's  support for  the Commission and the Council to take the Brexit negotiations to a second phase, and  sets out how it thinks the talks should move forward. It was adopted with a huge majority of 556 to 62, and 68 abstentions.

This Resolution is non-legisative and non-binding. However, it would be foolish to discount the European Parliament, while awaiting  the outcome of the official negotiations led by the European Commission.  It would be equally foolish to overlook  the European Parliament whilst hanging on the words of the French and German governments.

There are three big EU institutions  - the Council of Ministers (the governments of the 28 Member States), the Commission (the civil sevice) and the Parliament (the elected representatives of European citizens). Currently the positions of the three are aligned on Brexit. However, the European Parliament is in no way the Commission’s or the Council’s poodle.

The EU's Chief Negotiator himself, Michel Barnier, has underscored this. He  said at a press conference  on 31 August  2017 that  no-one should under-estimate the European Parliament. Its  backing is not  automatic. It is the only one of the three big EU institutions that is  democratically accountable.  Sometimes, it likes to flex its muscles and put the other two back in their place.  We have especially seen this effect  in the context of the battles over Internet copyright enforcement,  net neutrality and data privacy over the past 10 or so years.  Most notably, this happened with the Anti-counterfeiting Trade Agreement (ACTA), rejected by the European Parlliament in 2012.

Indeed, the European Parliament's muscles are already beginning to twitch. This article uncovers how the European Parliament is getting to work on Brexit.  

1. Brexit Co-ordinator  

The European Parliament’s position is established by  Guy Verhofstadt, who is  the Brexit co-ordinator. Mr Verhofstadt chairs the Brexit Steering Group,   which was established in order to co-ordinate  deliberations on Brexit across the whole parliament.

The Brexit Steering Group is a sub-committee under the  Conference of the Presidents – this is the committee of the presidents of the Party Groups,  which decides on organisation of the Parliament’s work such as the processing  of directives.

Mr Verhofstadt’s role is to  follow the talks between the European Union and the British government. He is  briefed on the issues and he  ensures that the Parliament is kept informed of progress.  He  liaises with the Chief Negotiator, Michel Barnier and with the Council of Ministers. His  aim is  to establish a consensus position. Consensus is the European Parliament norm, and in that regard  he will  aim  to adress any conflicts of opinion among MEPs, if they arise,  and he will seek to establish a common position.

This consensus-building is already being carried out, even though a vote on the Brexit deal will not happen for over a year. It begins with precisely the kind of Resolution that has just been adopted. Such a  Resolution is one of the ways in which the European Parliament establishes a position on an issue. It becomes  a tool for politicians who seek to gain support for a policy or a political decision. A Resolution can be used to underpin existing positions, or occasionally to change the prevailing viewpoint. Importantly, it will usually be drafted by a rapporteur working with a number of ‘shadows’ and their assistants, and the most successful Resolutions are agreed across the Party Groups.

The 13 December 2017 Resolution was not the first one on Brexit – it was the third one. On 3 October 2017,  the European Parliament passed a Resolution setting out its red lines for Brexit,  emphasising that  the British government’s lack of progress on Brexit was unsatisfactory. It underlined the same three areas as the Commission and the Council  - protect the Good Friday agreement  for Northern Ireland; to give EU citizens in the UK the same rights post-Brexit that they currently enjoy; and that the UK must meet its financial committments. And on 5 April 2017, the European Parliament adopted a Resolution stating that "full involvement of the European Parliament is a necessary precondition for it to give its consent to any agreement".

2. Committees

In establishing his position, the Brexit Co-ordinator will draw on the expertise of the Committees in the European Parliament. This will become increasingly important as the negotiations get stuck into the detail and expand into other areas, such as a future trade framework.

Most of the work of the European Parliament is done in committees. They work differently from committees in the Westminster Parliament.  When legislation is brought before the European Parliament, it is the Committees who take it on first. They scrutinise it in detail and only when it has been voted in committee does it go to the plenary.  Debates in plenary are therefore quite short, and typically they will consist of statements from MEPs regarding specific provisions or amendments.

Usually the committees try to get agreement, so that only the most controversial amendments will remain outstanding for the  plenary. New amendments can be tabled in plenary. It has happened that plenary amendments overturn decisions made in the committees if the Parliament as a whole feels that the original committee decision was wrong (A dramatic example of this occured in the 2009 Telecoms Package Second Reading - see  European Parliament rejects Telecoms Package  ).

The committees also play an important role in informing  the Parliament about current issues that may or may not yet be the subject of legislation.  In that regard, they are looking into Brexit and  each of committees will take an interest in any issues arising that affect their remit. Hence, the Transport committee (TRANS) is looking into aviation post-Brexit. The Civil Liberties (LIBE) committee is interested in how Brexit affects the fundamental rights of European citizens.

The committee scrutiny is published in the form of rapporteur’s Reports from the lead committee, and Opinions from other committees that have an interest in the legislation. Eventually, all of the commitees with an interest in Brexit – likely to be almost all of the 22 Standing Committees – will potentially want to have an Opinion on the Brexit agreement. This could affect  the time needed for the overal scruntiny of the Brexit agreement, especially given its importance for the EU as a whole. The committees will not have the power to amend the Brexit agreement, but they will discuss any points that they are not happy with, and this could affect the final outcome of the plenary vote.

3.Time to process  

As we know very well, timing is of the essence.  There are only 15 months to go (from the time of writing this article) before the Article 50 deadline of 29 March 2019 and as I write this in December 2017, the negotiations are not progressing at any speed, despite an agreement to take things forward to a second phase. This  agreement, of 8 December 2017,  permits the EU to set its processes in train, but importantyly it does not include any final or decisive content. Media coverage certainly suggests that it has  divided opinion as to its binding nature.  

With that in mind, how much time does the European Parliament need?  It has been suggested that the European Parliament will need 6 months to process Brexit, and, based on that assumption,  a final divorce  agreement on Brexit would have to be concluded by 1 October 2018. That means, it  has to be finalised in less than a year from now.

However, there is a slight hiccup in this proposition.  Firstly, it assumes that the  the agreement, on its conclusion, will go immediately  to the European Parliament.

In fact, once  EU agreements are  formally concluded, they do not pass straight to  the European Parliament. There is normally what’s called a ‘legal scrub’. This basically means that lawyers crawl over the text of the agreement and do all the ‘i’ and cross all ‘t’s from a legal perspective. It doesn’t change anything in terms of the meaning, but just ensures the legal language is correct. With ACTA this took about a month and ACTA was a fairly small agreement compared with what the Brexit agreement is likely to be.  

After the legal scrub, the agreement will have to be formally initialled by the European Commission and the British government, before it can be  transmitted to the Parliament, which will then begin its work.

Six months is the miniumum amount of time needed by the European Parliament. Again, harking back to ACTA, this did indeed take around 6 months. But for an agreement of the scope and political significance of Brexit, I would fully expect that it could take longer.

It is clear that the need to strike a deal by next October, in order to get it through the  European Parliament, means that the pressure will step up from January, and it unlikely to have much let up until October.

4. Report  

What does the European Parliament do when it gets the Brexit agreement? The Parliament’s internal processes and procedures are once again different from Westminster.  The European Parliament does not actually vote on the agreement itself, but votes on a report drafted by the Brexit co-ordinator,  in which he will address any issues of concern to the European Parliament and make a recommendation to accept or reject. He will have  to gather together opinions from  MEPs of all Party Groups and from all of the interested committees. This is where it could begin to break down, if there is unhappiness with the negotiated outcome from certain interests. Those views will be passed via the Committees to the Co-ordinator who will have to broker a position.  At this point, any failing or weakness in the negotiated agreement could be highlighted. We saw this with ACTA – it was precisely at this point where the Parliament’s position turned against the Commission’s negotiated agreement.(See  EU Parliament: we will not be pushed, Mr DeGucht! )

The Committees will be subject to lobbying, as will be individual MEPs and the Brexit Steering Group itself.  It will be a process that the British government will have no ability to influence. What it does suggest is that the negotiators should take heed of the European Parliament’s position and of any possible objections - and of that 'necessary precondition' -  if they want the final agreement to be processed efficiently.

5 Consent

The European Parliament is not under any obligation to give the thumbs up to the Brexit agreement.  The Parliament is the only one of the three major EU institutions that has a direct democratic mandate and it is very conscious of its responsabilities  to the European citizens – which until 29 March 2019 also includes British citizens. Over the last 10-15 years,  it has been flexing its muscles, and it does exercise real power.  

The European Parliament  will process the agreement under the Consent procedure, which is not the same as giving consent. It means the Parliament has a simple yes or no decision to make, but it can say ‘no’.  Indeed, consent is not automatic. We saw this with the Anti-counterfeiting Trade Agreement (ACTA) where the European Parliament rejected an agreement negotiated by the European Commission with (among others) the United States and Japan (See Wow what a scorcher! ACTA slaughtered 478 to 39 ). In other words, the European Parliament could reject a Brexit agreement if it felt that there were issues in the agreement that it was not happy with.

On the balance of probability, the European Parliament would only use its veto if it was in a profound disagreement with the deal agreed by the Commission (as was the case with ACTA see  EU Parliament Trade committee says no to ACTA) and if it felt it had not been fully informed throughout the talks (which was the case with ACTA, see ACTA Transparency: EU Commission draws the curtains )  but is quite different with Brexit where the Commission is offering public transparency on the negotiation process).   So, the way things look at present, a refusal of consent to an agreement brokered by the Commission, is  unlikely.

On the other hand, the European Parliament will be able to influence the talks as they go  along. It can do this  simply by utilising its existing  procedures in place to feed in its views. The committees and all MEPs will be well briefed and will have multiple opportunities to communicate  their position before the negotiations come to an end. This has already been noted by  Sir Ivan Rogers, former British Ambassador to the EU,  who told the Commons Treasury Select Committee that  the European Parliament will have more  leverage  during the negotiations than it will have at the end.

Why this matters

The right of the British Parliament to have a meaningful vote on the final Brexit agreement was very much hard won. The vote on Amendment 7 to the EU withdrawal Bill, tabled by the former Attorney General, Dominic Grieve, was 309 in favour to 305 against. It was a defeat for the government.  

Amendment 7:  

subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”

Explanatory statement : To require the final deal with the EU to be approved by statute passed by Parliament.”

The statute, or Act of Parliament,  must go through all stages just like any other piece of  legislation.

There are some questions that come to mind about this process. Would the outcome of a vote in Westminster influence the European Parliament and vice versa?  Does it matter if the British Parliament rejects the deal or accepts it before the European Parliament votes?  What are the legal ramifications of such  a rejection?

As highlighted by academics at the    UCL European Institute,  the vote at the end of the negotiation process will only be a binary choice to accept or reject a done deal.  Rejecting it would mean that Britain crashes out of the EU without a deal – the ‘cliff edge’ would become real. According to  Jonathan Portes, of UK in a Changing Europe,  this is too late.  

If the British Parliament is to have a meaningful say in shaping Brexit, then it needs to  address the fundamental questions about our future  relationship with the European Union and to  begin tackling them  in the next couple of months. It needs a deeper  engagement with the issues,  and a chance to have a real say – with a vote -  on the multiple critical choices that are looming about our country’s future. 

--

I 've spent the past 10 years studying how legislation is processed in the European Union, in the context of  specific policy agendas and legislative proposals that have enabled me to dig deep into the EU procedures and norms. This article is based on my own experience and previous research. To see more of my work, check out the postings on this site and see my books, as listed in the 'My Books" section.  To contact me, check my email and phone number on the  'Contact us' page.

---

To cite this article or its contents, please attribute Iptegrity.com and Monica Horten as the author.

Check out  my book The Closing of the Net which  discusses European Internet governance policy. 



panel.at.cdt.content.responsibilities.september2016.crop2.jpg

 

States v the 'Net? 

Read The Closing of the Net, by me, Monica Horten.

"original and valuable"  Times higher Education

" essential read for anyone interested in understanding the forces at play behind the web." ITSecurity.co.uk

Find out more about the book here  The Closing of the Net

PAPERBACK /KINDLE

FROM £15.99

Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

Don't miss Iptegrity! Iptegrity.com  RSS/ Bookmark      

Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

Iptegrity.com is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

Contact  me to use  iptegrity content for commercial purposes