Richard Parry reviews a fast-evolving situation as the march of time and need to reconcile rhetoric and practicality constrain policy-makers.
The UK government’s White Paper of 12 July marked the culmination of the government’s negotiation with itself as it picked cherries even more precisely, like a skilled fruit-picker from the EU on a seasonal contract, on a cloud of rhetoric even more inflated than previously. A special, ambitious, robust, flexible, imaginative deal – yes, that it indeed what we want. As Boris Johnson pointed out in his resignation speech in the Commons on 18 July, the White Paper marks a change from the Lancaster House approach of 2017 when a complete break from any off-the-shelf EU structures was traded for a lengthy transition period generous to the EU before ‘freedom’ was secured on 1 January 2021.
The clue to where we are at comes at the very end of White Paper (p96): ‘the UK and the EU have been clear that the Withdrawal Agreement and the Future Framework form a package. Article 50 sets out that the terms of the UK’s withdrawal from the EU must be agreed taking account of the framework for the future relationship, and the EU’s guidelines of March 2018 confirmed that, in line with article 50, this political declaration will accompany and be referred to in the Withdrawal Agreement. The UK and the EU have also been clear that ‘nothing is agreed until everything is agreed’ meaning that neither document can be considered final until this is true of both’.
This act of capitalising ‘Future Framework’ is a tiny but devastating expression of the UK’s negotiating problems. For there is no equivalence between it and the Withdrawal Agreement, as if they were two legal documents. Article 50 states that ‘the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’. ‘Taking account of’ is as legally vacuous as ‘normally’ in the Sewel Convention. If it means anything, it is a political signal to make the act of withdrawal consistent with a stable relationship in the future.
The EU’s approach gets the UK out on 29 March 2019 and makes it a non-member state in the negotiating the final detail of the future relationship. The future framework can indeed be a political declaration of maximum possible free trade compatible with EU structures; it can be ‘final’ in that sense while setting up the UK as a victim of any derogation from an open market that the EU wishes to impose. Having used EU frameworks on the movements of goods, services and people for 40 years, it is doubtful whether the UK has the capacity to set up its own systems quickly enough, making a customs union irresistibly attractive to sensible opinion and leading to absurd semantics around something that talks and walks like a customs union but it not supposed to be one.
In the EU concept of crystallisation, the alternatives become non-voting quasi-membership and an outsider status with customs barriers and compromised free trade. In this perspective, the hard brexiteers can make common cause with the Commission and the rump pro-remainers. Both can agree that the former alternative is not worth having. If you really want to remain, just remain. If you really want to leave, just leave. Curiously it is the SNP, with their affinity with Norway and antipathy to the Common Fisheries Policy, who now look like the most sincere exponents of the first approach.
The UK accepted the EU’s placing of money, people and Ireland as essential components of the Withdrawal Agreement requiring legal precision. Money and people have been nearly sorted by the UK concession to maintain present arrangements until the end of 2020 and the EU concession to very largely end them at that point. Northern Ireland – as Johnson pointed out – was meant to allow special, anomalous solutions contained to that specific situation. The UK’s refusal to respect that containment – politically to support extreme unionism and economically to create openings for aligned, frictionless arrangements for the UK as a whole – makes this the most pressing negotiating task, one scarcely addressed in the White Paper and not helped by Theresa May’s uncompromising speech in Belfast on 20 July (when she mentioned in order to reject the suggestion that the UK might simply refuse to put in Irish border controls and dare the EU not to follow).
At least we have an EU text on Ireland, and a UK one that merely extends the customs territory concept to the whole of the UK, something that might tempt the Irish government to diverge from the purity of the EU position on the integrity of the single market. UK suggestions that the Withdrawal Agreement text is merely a backstop and will not happen are fanciful. If the frontstop existed, it would have been thought of. At the moment it is not easy to see a way forward because unlike the other future framework elements Ireland has got to figure in any text agreed and sent for ratification.
Until 29 March, the UK’s potent bargaining chip is its offer to keep paying contributions until 31 December 2020. Withdrawing it would not stop Brexit, which in terms of article 50 happens whether or not a Withdrawal Agreement is concluded unless all EU28 agree an extension of the notice period. Rhetoric from both sides this week on preparing for withdrawal without agreement is being accompanied by some practical planning. A 1914 scenario of stumbling into conflict by accident looms. Not leaving on the due date would be devastating to Theresa May. Her final Brexit challenge may be to sell to her party an uncapitalised, not fully formed future framework and get out of the EU door with withdrawal then irreversible and bargaining chips on a ‘good deal’ much attenuated. The timescale around this is related to the need for ratification in multiple venues of the Withdrawal Agreement; clock-stopping on 29 March is not available. We will know this year whether May feels able to declare victory, and whether anybody will believe her.