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This may be the last editorial in the Review while the United Kingdom is still a member of the European Union. Then again, it may not be. We do not yet know what the membership of the EU will be when the next issue is published. Given the long and painful/frustrating/stressful/difficult/desperate/miserable/interesting/exhausting/(un)predictable last three years (readers may delete or add adjectives as they see fit), silence may be tempting. After all, a Brexit-free editorial may be the most appropriate way to mark what may be the end of the UK’s membership of the EU.
The temptation to write about the B-word is, alas, too strong to resist. Let us, however, take a different tack. In the wake of an intense political and constitutional crisis internally, and with the Brexit deadline of 31 October 2019 looming, the British Government announced its proposal for amending the Withdrawal Agreement of 14 November 2018 and, in particular, the Irish backstop. On 2 October 2019, it handed a 4-page letter to the President of the European Commission, Jean-Claude Juncker. At the time of writing, the fate of this proposal is uncertain. For the purposes of this editorial, what is interesting is the refusal of the British Government to publish the legal analysis (according to newspaper reports, a 40-page document) which would flesh out the proposal. Viewed against the wider context of the British negotiating approach, this position is by no means surprising. After all, it is the British Parliament itself that has regularly criticised the Government’s lack of transparency not only regarding its negotiating objectives, but also its domestic post-Brexit preparations. Similar concerns have been expressed about the on-going negotiations to secure roll-over trade agreements with third countries: the lack of transparency about the direction and progress of the process, as well as the content and scope of consultations with the devolved administrations, industry and other stakeholders has been staggering.
The contrast, however, with the EU’s negotiating approach could not be any starker: since the beginning of the Brexit negotiations, the objectives of the Union, and the documents setting them out, promptly became public. At first sight, this may come across as surprising, as the EU has often been criticised for its lack of transparency in decision-making in general and its treaty-making in particular. As a matter of course, the EU’s negotiating directives, aiming to guide the Commission’s negotiations of international agreements with third countries, were not published and, when those adopted by the Council in relation to the Transatlantic Trade and Investment Partnership (TTIP) were leaked in 2013, there was public uproar about the perceived scope of the Agreement and its negotiation in secret. This is not the case any longer, as negotiating directives are now published and the negotiating process itself has been opened up.
The above is all the more noteworthy given the charge frequently levelled against the Union for decision-making through unelected bureaucrats which allegedly deprives democratically elected bodies of their right to exercise effective oversight. In fact, the quest for transparency in the EU is not confined to treaty-making but has also had an impact on the functioning of the Union’s institutions. Having elected the new President of the European Commission, Ursula von der Leyen, in accordance with art.17(7) TEU, the European Parliament has held oral hearings for the members of the Commission nominated by the Council. These hearings are carried out before the committee(s) for which each candidate would be responsible. Each hearing is scheduled for three hours, is live-streamed and is preceded by an examination of the declaration of financial interests by the Parliament’s Legal Affairs Committee. The Parliament does not have power over individuals nominated by the Council, but the Commission as a body is subject to the Parliament’s consent pursuant to art.17(7) subpara.3 TEU. At the time of writing, the process has not been completed. It has become clear, however, that it is by no means a mere formality. The Hungarian and Romanian nominees have been rejected by the Legal Affairs Committee, whereas the French and Polish candidates have been asked to appear for a second hearing, as their first performances were considered less than stellar.
Whilst transparency raises different challenges in different contexts, the above examples capture the delicious irony that characterises the ways in which it is manipulated by decisionmakers. The call to take back power from an allegedly shadowy and remote transnational structure deliberately ignored the steps that had been taken within the latter to bring in some light. The ensuing quest to endow domestic bodies with authority has shown little regard for transparency and seems to be accompanied by a disconcerting distrust of accountability. Viewed from this angle, whatever the outcome of this sad story, Brexit has shown us that the move from the transnational to the national does not necessarily entail more transparent decision-making.
