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03 October 2017

24: Great Repeal Bill – Give me just a little more time

The Prime Minister’s speech in Florence on 22 September was intended to create momentum in the ongoing Brexit negotiations, notwithstanding that (in her view, at least) ‘concrete progress’ had already been made ‘on many important issues’.

The Brexit negotiations (Round 4 of which takes place this week) are of course initially concerned with three issues: citizen’s rights, the ‘divorce bill’ and the Irish land border. The EU27 continue to insist that substantive progress on these issues is required before they are willing to discuss any future trading relationship with the UK.

Here’s what the PM had to say on each of those:

  • Citizens’ rights: The UK will incorporate the agreement to be reached on EU citizens’ rights into UK law, so that the UK courts can refer directly to it. The UK courts will also be able to take into account the judgments of the European Court of Justice ‘with a view to ensuring consistent interpretation’. The UK’s position on the substance of those rights remains as set out in its ‘fair and generous offer’. The EU thinks it does not go far enough;
  • Divorce bill: ‘The UK will honour commitments … made during the period of our membership’ – which we presume means any funding commitments already made (estimated at c.€20bn), and any which will be made prior to 29 March 2019 – and will make an ‘on-going contribution’ for policies and programmes from which the UK benefits to cover a ‘fair share of the costs involved’. In other words ‘watch this space’. The PM also added, ‘We can only resolve this as part of the settlement of all the issues I have been talking about today’ – including the UK/EU27 future’s relationship – which is at odds with the EU27’s position that the divorce bill must be agreed first; and
  • Irish land border: The UK and EU are committed to protecting the Belfast Agreement and the Common Travel Area, and both parties will not accept any ‘physical infrastructure’ at the border. There was no indication how, in practice, that will be achieved.

In short, while the PM urged all involved to show ‘creativity’, ‘innovation’ and ‘ambition’ in finding solutions, she seemed unable to offer any further, substantive, suggestions of her own. Quite how that is supposed to provide ‘momentum’ is anyone’s guess.

What is clear is that the government, six months into a supposed two-year negotiation, has admitted for the first time that the UK needs more time. The major announcement in the PM’s speech was to request an ‘implementation period’ during which ‘access to one another’s markets should continue on existing terms …’ In case there was any doubt what ‘existing terms’ meant, the PM explained that ‘the framework for this strictly time-limited period … would be the existing structure of EU rules and regulations.’ (What else could it be, given the purpose of the period is to allow a replacement framework to be developed?). The PM added that the length of the implementation period ‘should be determined simply by how long it will take to prepare and implement the new processes and new systems that will underpin that future partnership.’

Let’s not beat about the bush. The PM has abandoned ‘no deal is better than a bad deal’. The UK may formally leave the EU on 29 March 2019, but it is now asking the EU27 if it can ‘stay in’ in all practical senses until a mutually satisfactory future arrangement is negotiated and implemented. And it is a request – as Michel Barnier has confirmed, there is nothing in the article 50 process which would require the EU27 to agree to it. The UK therefore has no control over whether that period is granted or on what terms it will be given – the EU27 are in the driving seat.

Moreover, while the PM suggested the implementation period would be two years, this is pure ‘finger in the air’ territory – the PM has no idea how long such matters might take to resolve. (Adam Marshall, director general of the British Chambers of Commerce (BCC), and Guy Plattten, CEO of the UK Chamber of Shipping, have both since commented that a transition period of two years is too short.)

Nor is the Government any clearer on what it wants as a final position. The PM, whilst discounting the models of European Economic Area (EEA) membership (which involves automatic rule-taking) or a Free Trade Area (‘insufficiently ambitious’) as a ‘stark and unimaginative choice’ from which ‘we could do so much better’, gave no detail whatsoever of what ‘better’ might be, other than ‘a creative solution to a new economic relationship that can support prosperity for all our peoples.’ On the respective role of the European and our domestic courts the Government’s position (or lack of one) is the same: ‘It would not be right for one party’s court to have jurisdiction over the other. But I am confident we can find an appropriate mechanism for resolving disputes’. We are going to find ‘a practical approach to regulation’, but we aren’t told how.

All in all, it is unsurprising that Michel Barnier opened Round 4 of negotiations repeating his demand for ‘more clarity’ and suggesting that the PM’s speech had changed little, or that little seems to have come of Donald Tusk’s visit to Downing Street last week.

Of course, the underlying cause of the uncertainty is the ongoing division on Brexit within the Cabinet: the Chancellor, Phillip Hammond, and other ex-Remainers favour staying as close to the EU27 as possible, perhaps even in the Single Market, while Foreign Secretary Boris Johnson leads the Brexiteers favouring ‘a clean break’. The PM, seemingly with no principled position of her own, tries to find a workable compromise but ends up sounding like Micawber, hoping ‘something will turn up’.

Labour’s position is little clearer. Prior to the Labour Party conference, Jeremy Corbyn said:

‘We want a relationship which allows us to trade within the single market. Whether that is formal membership, which is only possible, I believe, if you are actually a member of the EU, or whether it is an agreed trading relationship, is open for discussion.’

This reflects Labour’s official policy, which is to seek to replicate the benefits of the single market (members voted in favour of a policy paper saying so at Conference, although without a debate or vote on remaining in the Single Market). Corbyn, in his speech to conference, ducked the difficult question of how this would be achieved, saying only that a Labour Government would seek ‘a new co-operative relationship with the EU’ that ‘guarantees unimpeded access to the single market’.

The Tory party conference started on Monday. In the immediate aftermath of the poor General Election showing, many predicted the PM would not make it this far. Continued divisions within her cabinet might bring renewed speculation over her leadership to a head. Then again, given there is no consensus over an alternative leader, she too might be given just a little more time.

‘Life’s too short to make a mistake, let’s think of each other and hesitate … We both want the sweetness in life, but these things don’t come overnight … Give me just a little more time’ (The Chairmen of the Board, Give Me Just a Little More Time)
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