The government has been fudging the Brexit transition—but time's almost up

The Tory Brexiters find themselves united with Tory Remainers and the EU in losing patience

February 02, 2018
Brexit Secretary David Davis. Photo: Ian Forsyth/PA Wire/PA Images
Brexit Secretary David Davis. Photo: Ian Forsyth/PA Wire/PA Images

We might call this moment in British politics a “transition period”—a time when fudge and delusion transform, painfully, into concrete and reality. It could, if you prefer, even be termed an “implementation period,” in which the demands of real-life politics, hidden for so long beneath bombastic rhetoric, finally reach fruition. Brexit's phase two reckoning has begun.

The current row over the transition is not, of course, simply a contest of language. It has even transcended a wider tussle between the European Union's idea of an unfinished Brexit that needs to be negotiated in a “transition period,” and the government's fanciful notion that the final deal will be wrapped up in just eight months and then ratified and delivered during an “implementation period.” It is really a series of radical gulfs between two sides, and two sets of expectations. The government and the EU; Tory pragmatists and fundamentalists; and most unbridgeable of all, fantasy and reality.

At the centre of the domestic storm over transition is, inevitably, Brexit Secretary David Davis. Following on from his Commons select committee appearance, where he laughed off his previous delusion about the UK's potential for signing trade deals before Brexit, he delivered a speech last Friday reiterating the government's commitment to a standstill period after we have officially left the EU in March 2019. That such a speech had to be made at all, after the Prime Minister's Florence speech last September, demonstrates the level of obfuscation that has permeated both government and the general debate. In the event, it spelled out Theresa May's earlier concessions and cemented her delusions.

The concessions, to be clear, are that we will continue to abide by the full body of EU law for the duration of the transition, but without a formal role in influencing and deciding EU policy. All four freedoms will remain, and so will the effects of the customs union (more on that later). Much else that he said was nonsense.
“If Brexit means Brexit, EU law means EU law”
First, Davis re-asserted that we would need the transition period to “ratify” the final deal, rather than the self-evident truth that we will instead be negotiating it. Second, Davis talked about finalising global trade agreements during the transition period. But these will not happen in the short term (or probably ever), for numerous reasons. To take one, owing to limited time the government will be compelled to focus on the deal with the EU, with no possibility of moonlighting.

Third, and most significantly, Davis asserted that international agreements conducted through the EU must continue to stand during the transition. He conceded, magnanimously, that this would require the consent of the EU and the relevant third countries, but gave no indication at all of how complex that process would be. For his part, EU negotiator Michel Barnier has insisted that we will fall out of third-party agreements at the start of the transition, and only be bound by our obligations.

Predictably, right-wing Tory outrage has not centred on the delusions but the concessions—chiefly, the full prolongation of the EU acquis during the transition, our requirement to implement new EU rules, and our absence from decision-making processes.

The EU has been clear since last April's guidelines that this must be the price of any transition, but repeated statements were drowned out by the noise of those who refused to hear them. Thus Davis now protests, hopelessly, that there must be ways to dispute new laws if they are “deemed to run contrary to our interests,” while May herself this week declared that EU citizens arriving in the UK during the transition period would not be granted permanent residency like those who came before—a clear breach of the EU's red line on full continuing rights, and doomed to fail. If Brexit means Brexit, EU law means EU law.
“Schroedinger's Irish border cannot be both open and closed”
Of course the stand-out battle-cry of the hardliners is that the transition will render us a “vassal state.” Certainly, compared with Norway, we will have significantly more integration, and significantly less consultation. But the alternative is not to have any deal at all—a solution which will be welcomed only by people who do not understand its implications. In the light of official impact assessments that reveal we will be poorer under any Brexit scenario, Tory Remainers, too, are gathering courage. While government ministers denounce their own officials, the warring Tory Brexit factions are finally tearing off the sticking plasters of civility.

Amidst the domestic chaos, it is perhaps easy to forget what is happening, with far less noise, in Brussels. There the transition is already determined and wholly uncontroversial. They simply want to know what we want to come next.

In an ominous sign of things to come, Germany's Brexit coordinator Peter Ptassek tweeted that "Brexit leftovers will surface" when the Commission starts drafting the withdrawal agreement and converting the phase one deal into a binding agreement. Specifically referring to Ireland, Ptassek declared that "the legal text has to be clear." Michel Barnier, meanwhile, told the House of Commons Northern Ireland Committee that the UK was "establishing red lines that are closing... certain doors" while the EU was "awaiting proposals." Barnier knows that such proposals cannot be forthcoming because the government does not know how to resolve the predicament it has imposed upon itself. How, in short, do we expect to leave the single market and customs union while effectively being bound by them?

The phase one agreement which specified “full regulatory alignment” with regards to the all-Irish economy and Good Friday Agreement will have to be spelt out. While it is promising that the government has reportedly asked to remain in a customs union on a permanent basis (which would in any case be a logical consequence of the agreement), International Trade Secretary Liam Fox has put his implacable opposition on the record.

In terms of the single market, the UK and EU must almost certainly guarantee free movement of goods, which includes harmonised standards, while the UK wishes to retain free movement of services and capital for the sake of our wider economy. No proposals have emerged on how to achieve those goals without including the fourth freedom—free movement of people. Meanwhile, when the BBC's Laura Kuenssberg asked the PM yesterday whether she wanted close alignment or a more dramatic break, all May could offer was the hoary, meaningless slogan that we would “take back control of our money, borders and laws.” If the row over the transition does not destroy the government, the row over the end-state surely will.

As the agony over the transition slowly hardens to acceptance, the real conflict over our final destination begins. As it does, the Tory Brexiters find themselves united with Tory Remainers and the EU in losing patience with the PM. Schroedinger's Irish border cannot be both open and closed, and we cannot be both inside and outside Schroedinger's single market and customs union. The fudge is almost over, the leftovers have almost surfaced, and the Brexit chickens have come home to roost. They are not drenched in chlorine but reality.