Britain and Europe

Not savaged but salvaged

24 October 2017
Andrew Duff

The big news is that, after a few febrile weeks, the latest European Council (19-20 October) agreed to salvage Theresa May. President Donald Tusk and his colleagues took the point — made for example in my article for the European Policy Centre (3 October) — that to savage the British prime minister in Brussels would further undermine her already weak position in London and risk the ascendancy of Boris Johnson.

Going further than she did in her 22 September Florence speech, May was emphatic in her demand for a transitional period. In response, the heads of government instructed Michel Barnier to prepare the ground for talks about transition.

May made the point to the European Council that there can be no more progress on the Irish question until trade and customs arrangements are addressed as part of Phase II. The European Council asked her to “present and commit to flexible and imaginative solutions” to the problem of managing the EU’s porous external border in Ireland. Likewise, the heads of government asked for simpler administrative procedures for EU citizens in the UK and for clarity about the role of the European Court of Justice in protecting their rights.

The prime minister was also told that she must make a “firm and concrete commitment … to settle all of [Britain’s] financial obligations undertaken during its membership”. In particular, this means accepting that the UK’s share is about 13% of the reste à liquider — legal commitments for future payments under the EU budget staggered over several years — whose total sum is about €240bn.

But as the clock ticks towards Brexit on 29 March 2019, May’s task does not get any easier. At the next meeting of the European Council on 14-15 December, she still has to keep her job, maintain the semblance of unity in her party and, above all, persuade her fellow heads of government that the UK has made “sufficient progress” in leaving the Union to allow them to agree to move to the next phase of the Article 50 process.

The next phase

To recap, the European Council’s Brexit guidelines (29 April) say that the purpose of the second phase of the Brexit talks will be to reach “an overall understanding on the framework for the future relationship” between the UK and the EU 27 (note, not exactly what the UK press keeps on describing as ‘trade talks’).

The problem is that Theresa May has still to launch a proper debate in Britain about precisely what the future relationship will be. On 9 October she told MPs that she wanted a new partnership “unprecedented in its breadth and depth, taking in co-operation on diplomacy, defence and security, and development”. On the length of the transition period, she added:

“How long the period is should be determined simply by how long it will take to prepare and implement the new systems we need. As of today, these considerations point to an implementation period of around two years.”

However, building consensus around the fact that a transition period is needed, and how long it should be, does not advance matters very much. The EU 27 can agree the technicalities of transition but only the British government can define the parameters of the country’s future landing zone in Europe. The prime minister must show leadership on this, and do so in the next few weeks. Or the Brexit game is lost – and she with it.

Ominously, The Sun reported (23 October) a Tory cabinet minister as saying:

“We haven’t grasped the nettle on the trade deal yet, and we really have to soon. Theresa’s fear is the moment we do, half of us will walk out. We just don’t know which half.”

As we have argued before on many occasions, the options are limited. An orderly Brexit under Article 50 means pitching towards an association agreement with the EU under Article 217 TFEU to be negotiated under the terms of Article 218. This involves getting the best possible access to the single market and a practicable customs arrangement. It will include collaboration on internal and external security matters. It will be governed by a set of bespoke joint political, technical and juridical institutions, and be secured by a financial settlement.

All this must be spelled out in the Article 50 secession treaty. Indeed, if such a package deal cannot be prefigured clearly in the Article 50 treaty – the “framework for future relationship” – there will not be an Article 50 treaty and a disorderly withdrawal will ensue. If such a package is included in the Article 50 treaty, the arch Brexiteers on both sides of the House, as well as UKIP outside, will be bound to try to scupper the deal. An Article 50 type withdrawal agreement will be sure to further divide the Conservative party.

Labour wants to take over, but not quite yet

The Labour party, however, struggles to maintain its own cohesion. Keir Starmer’s line – that the UK should stay in the customs union and the single market for the transition period – seems to be holding. But he is no less ambiguous about the final landing zone than is David Davis. Several Labour MPs, including the vocal Chuka Umunna, have still not got the message that the EU will not allow transition to be a laissez-faire, indefinite state of grace.

The European Council guidelines asserted two things which are worth repeating for the benefit of Remainers. First, because the UK will not accept the four principles of freedom of movement, the EU is insisting that it cannot remain a full member of the single market. Second, the European Council guidelines determine that the transition period must be “clearly defined, limited in time, and subject to effective enforcement mechanisms”.

Shadow foreign secretary Emily Thornberry has come closest to defining what Labour’s strategy really is. She told Sky (8 October):

“What we want is the Article 50 to go ahead for them to do as little damage as possible and then for the Tories to have an interim period, if there is no general election, where there is no change to the status quo — so that for a couple of years we can then do the negotiations properly. And we hope that during that period there will then be a general election.”

To BBC Sunday Politics she added:

“Let’s take these things step by step … Our position, at the moment, is that we do not have a second referendum, we leave the European Union.”

Thornberry’s deputy, Jenny Chapman MP, elaborated:

“It’s in no one’s interest for the UK to crash out without a deal. We very much want a deal, I think the EU wants a deal.”

To be sure, there will be party games organised around the passage of the EU Withdrawal Bill. Starmer has adumbrated six principles whose respect will secure Labour’s support for the bill. Ex-Tory attorney general Dominic Grieve has tabled many amendments. But for May’s working majority of 13 to be overthrown not only does Labour’s position have to coincide with that of the small band of Tory europhile rebels, but the number of the latter has also to be significantly larger than that of Labour’s own rebel europhobes.

The one item where the government might face defeat is on Grieve’s amendment that calls for an act of parliament, and not just a ‘meaningful vote’, in order to pass the Article 50 secession treaty into UK law. But even such a Bill is likely to pass. One recalls that a very large majority of MPs from all parties promoted the referendum, pledged to respect the result, confirmed in the light of the negative result that they did so, and then went on to support the triggering of Article 50.

Opposition MPs will eventually get to realise that no Article 50 agreement means the hardest possible Brexit. No Article 50 treaty means no deal. There is certainly no Commons majority for no deal. The EU 27 will not concede that rejection of an Article 50 treaty means an automatic return to the status quo ante referendum, as if nothing had happened. There will be no second offer of Article 50 talks on a more lenient basis and no indefinite extension of the prescribed two-year timetable.

From this we may conclude that Labour MPs and peers will be whipped to vote for the Article 50 secession treaty as and when it comes up, in whatever form, for assent. Once the Brexit treaty is in force, Labour will no doubt try to bring down the May government in a vote of no confidence and force a general election. As the Tories are bound by then to be badly split, the opposition will win a no confidence vote. It might well be Prime Minister Corbyn who has to negotiate the association agreement. Attention will soon turn to what Labour really wants Britain’s future in Europe to be.


Image credit: Frederic Legrand – COMEO / Shutterstock.com