|
|
EXTENDING THE TRANSITION
In view of the pervading general mistrust, it is a relief that it has been agreed, at least in principle, that the transition period should be extendable beyond its initial deadline of 31 December 2020. While this decision also enrages fanatic Brexiteers, any British politician left with a jot of reason has listened to business interests for whom the threat of constant changes to the commercial regime is clearly damaging. And every precedent suggests that, no matter what the claims of Conservative ministers, the chances of wrapping up a whole new free trade agreement in the eighteen months after Brexit are nil.
The precise mechanism for taking the decision to extend the transition, which must include budgetary matters, has yet to be written into the draft Withdrawal Agreement. It would be sensible for the UK to ensure that the EU side would not have to decide this by unanimity: the risk of a veto among 27 national leaders is never absent. A good procedure would be for the request for an extension to come from the UK, for the Commission to make a formal proposal to that end, for the European Parliament to be asked to give its assent, and for the Council to act by qualified majority.
It would also be intelligent not to impose another artificial deadline to the transition period which would serve only to postpone but not eliminate the cliff edge. The transition period will have to be well used to negotiate both the temporary customs arrangement and the final Association Agreement. If those negotiations are successful the transition period will end when the new arrangements enter into force; if unsuccessful, we will be back at the cliff edge of no deal.
THE IRISH BACKSTOP
[...]Not everyone at Westminster appears to appreciate the extent to which the Belfast Agreement is an instance of European integration – difficult to arrive at and precious to conserve. Some Tories are still in denial about the joint British-Irish nature of the regime in Belfast, and object to Northern Ireland being picked off by the EU as a special case, whose future governance is being made subject to an effective veto from Dublin.
Theresa May had hoped that her proposed temporary customs arrangement would annul the need for the Irish backstop if it succeeded in keeping open the Ulster border and ensuring the smooth flow of goods from Great Britain across the Irish Sea. Extending the transition period could also, in her view, obviate the need for the backstop. However, the EU side has made it plain that, as far as it is concerned, extending the transition period is not a substitute for but a supplement to the Irish backstop. A longer transition period will be needed to negotiate the temporary customs arrangement requested by Britain. [...]
The Political Declaration on the framework for the future relationship between Britain and Europe will be delivered in two stages. The first presentation, which was due to have been delivered at the European Council on 17-18 October, will set out the heads of agreement over the whole spectrum of policy and institutions. The plan was to let the British media and Westminster recover from the shock of discovering the scope and depth of the sought-after Association Agreement before moving on to stage two. Publication of the Declaration will certainly draw a lot of political flak in Britain.
The two-stage delivery, however, is also needed by the EU 27. Some member states have not played a particularly active role in the Article 50 process, but no state can afford to sit idly by while such an important document on the future of the Union is being prepared for delivery to London. All the leaders need a chance to elaborate their own thoughts on the first draft before the full and final version is released.
Despite the delay in presenting the Political Declaration to public gaze, Theresa May told the Commons on 22 October that there is already “broad agreement on the structure and scope of the future relationship”. But she knows that the EU will not present the Political Declaration unless and until the UK agrees the inclusion of the Irish backstop in the Withdrawal Agreement. Because the timetable has slipped so badly, all eyes are now set on the completion of whole deal, Withdrawal Agreement plus Political Declaration, at the scheduled European Council meeting on 13-14 December.
I have argued before, contrary to most Brexit commentators, that to do its job of steering Europe in one direction, the Political Declaration has to be politically binding on the UK and the EU 27, with the effective force of soft law.7 A decision on its precise legal status, and how it should be referred to in the accompanying Withdrawal Agreement, has still to be taken. If the Declaration is deemed a success, it will serve as the first draft of the mandate that will be given by the EU Council to the Commission to negotiate the Association Agreement. [...]
It is hoped that once the Political Declaration is published the context of Article 50 changes and a more trustful climate can be restored. The quarrel over Ireland will be put in relative context. The Union will be able to clarify how it intends to maintain its level playing field against British attempts to undercut European business. The apparatus of joint governance, including the role of the European Court of Justice, can be fleshed out. The more substance in the Declaration, and the more legal weight accorded it, the greater the certainty for citizens, investors and business and for the UK’s erstwhile partners that, notwithstanding the current chaotic condition of British politics, the British state will deliver its promise to execute an orderly withdrawal.
THE DEAL
Despite panic attacks at Westminster, the two negotiating teams of Michel Barnier and Olly Robbins continue to move closer to each other. Agreement on the customs union and on transition extension seems secure. There has been completion on Cyprus and Gibraltar and other outstanding issues too. Irish backstop aside, the Withdrawal Agreement is ready to be signed. Logic impels one to assume there will soon be a deal. Nobody will find it a perfect deal, but it will succeed in extricating the UK from EU membership while minimising collateral damage to the rest of the EU, and it will orientate everyone towards a final Association Agreement via a flexible transition period. Ultimately, a deal is better than no deal. [...]
Once the current stalemate over the Irish backstop is overcome, things should be able to move rapidly to a conclusion. Any politician at Westminster then seeking to defeat the deal will have to explain how they would prevent a cliff edge, no deal Brexit from happening as scheduled on 29 March. The European Council will not extend the Article 50 talks themselves unless confronted with reasons of force majeure – and then not beyond the date of the European Parliament elections on 23-26 May 2019. Brexit, I think, still means Brexit next year.