Andrew Duff -  On Governing Europe

Not savaged but salvaged

The big news is that, after some 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 Florence speech (22 September), 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 cooperation on diplomacy, defence and security, and development”.

She stresses the importance of a transition period that is flexible but not indefinite. But 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.

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.

May has to face up to the fact that if such a package is included in the Article 50 treaty it will be opposed by the arch Brexiteers.

But there is no way that an Article 50 withdrawal agreement will not further divide the Conservative party.

Labour wants to take over, but not quite yet

The Labour party, however, struggles to maintain its own cohesion. Brexit spokesman 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 not less ambiguous about the final landing zone than is David Davis.

Several Labour MPs, including the vocal Chuka Umunna, still misunderstand what the EU is saying. Two points are therefore worth repeating from the European Council guidelines for the benefit of Remainers. First, because the UK will not accept the four principles of freedom of movement, it cannot remain a full member of the single market. Second, the transition period must be “clearly defined, limited in time, and subject to effective enforcement mechanisms”.

Shadow foreign secretary Emily Thornberry has been clear that she wants the Tories to complete the Article 50 process and for Brexit to happen.

Why indeed should Labour wish to inherit such a poisoned chalice from the Tories?

To be sure, there will be party games organized 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.

Remainer MPs and peers will 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 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 probably 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.

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A longer version of this article is published by Policy Network.

 

 

 

 

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