In his farewell letter to his staff, the departing British Permanent Representative to the European Union, Sir Ivan Rogers, accused government ministers of “muddled thinking” about Brexit. In her speech on 17 January, Theresa May will have the opportunity to rebut or reinforce this claim. The following issues in particular need clarification, writes Brendan Donnelly.
1. Will May recognise that her refusal to accept free movement for EU citizens and the authority of the European Court of Justice renders impossible British membership of the European single market?
May has often appeared reluctant to acknowledge this reality, insisting that the UK does not face a “binary” choice in this matter. She and her government do indeed face a “binary” choice, namely of remaining within the single European market, or leaving it with all the disruption than entails. Until 23 June of last year David Cameron’s government, of which Theresa May was a prominent member, argued that British membership of the single European market was crucial to British prosperity. Her understandable reluctance to admit the contradiction between what she said before 23 June and what she is doing now has contributed importantly to the confused nature of the Brexit debate under her premiership.
2. Will May recognise the fundamental difference between the membership of the single European market currently enjoyed by the United Kingdom and the varying lesser degrees of access to that single market enjoyed by countries outside the European Union and the European Economic Area?
May and her ministers frequently speak as if it will be possible for the United Kingdom, having left the single European market, to agree with their European partners a degree of access to that market not far different to that currently enjoyed by British exporters. There is no basis for this assumption and much reason to assume the contrary. Our European partners rightly believe that the strength of the single European market derives from the willingness of its members to accept reciprocal rights and obligations between themselves. They have no intention of allowing the United Kingdom to establish for itself a regime whereby it continues to enjoy the rights of being in the single market but shoulders fewer of its responsibilities. That is what they mean when they warn against “cherry-picking.”
3. Will May recognise that there is no chance of negotiating and signing a treaty regulating the UK’s future relationship with the EU within the two year deadline triggered by the invocation of Article 50?
Article 50 of the Lisbon Treaty relates primarily to the terms of separation between the EU and a seceding state, to such questions as pensions, multi-annual programmes and membership of European regulatory agencies. For these questions, the two-year deadline is a realistic one. Negotiation of the terms of the future relationship between the UK and the EU is an altogether more complicated proposition. It has taken many years to negotiate, not always successfully, bilateral agreements between the EU and such countries as Canada, South Korea and the United States. Sectoral, national and geo-political issues have always ensured that these negotiations have taken much longer than the participants would have wished. The wishful thinking implicit in the claim that in the case of the EU and the United Kingdom these negotiations could be completed within two years of the invocation of Article 50 is another component of the muddle that has characterised the Brexit debate in this country over recent months. It is entirely possible that by the end of the two-year period a clearer picture will have emerged, as Article 50 envisages, of the future relationship between the UK and the EU. But this is far short of a final treaty negotiated, signed and ratified.
4. Will May recognise that a transitional arrangement between the UK and the EU will be necessary after the United Kingdom has left the EU in mid-2019?
It is the view of some members of May’s government that a treaty regulating the UK’s economic relations with the EU after Brexit is either unnecessary, unimportant or even undesirable. Her acknowledgement of the need for a transitional arrangement after Brexit will be a signal that she does not share these views, a disavowal she may be reluctant to make. Her continued insistence that everything should be completed within two years will be taken on the other hand by her negotiating partners as a sign of unrealism and intellectual confusion. As so often in the Brexit debate, May finds herself on this issue negotiating with two sets of interlocutors, the rest of the EU and the rest of the Conservative Party. It will be interesting to see in her speech which of these two pressures is predominant.
5. Will May undertake to put before Parliament for acceptance or rejection the final terms of her negotiated settlement with the EU at the end of the Article 50 negotiating period?
Not the least of the ironies in the Brexit melodrama has been that it took a private citizen to approach the High Court about the right of the House of Commons to be involved in the invocation of Article 50 of the Lisbon Treaty. Whatever the outcome of the government’s appeal to the Supreme Court on this issue, it would helpfully clarify the political route map of Brexit were May to set out in detail what role she foresees for the House of Commons after she has concluded her Article 50 negotiations. The assurance that she would seek specific parliamentary endorsement for the outcome of her negotiations would do much to dispel the criticism that she is conducting her European policy simply as a succession of tactical manoeuvres designed only to pacify the most extreme Eurosceptic wing of her party. A commitment to seeking a parliamentary majority for the result of her Article 50 negotiations would also be a constitutionally and politically proper reassertion of the Parliamentary sovereignty which many who voted for Brexit on 23rd thought they were re-establishing.
It appears from many reports over the weekend preceding the Prime Minister’s speech that she may indeed be clarifying some at least of the above issues on 17th January. She may well recognise that the logical conclusion of her demands and expressed preferences until now will be to leave the European single market, to leave the Customs Union and perhaps not even to care greatly about a future treaty with the European Union. If she does so, it will contribute greatly to the clarity of the European debate in this country. It will also greatly clarify the moral dilemma facing over the next two years that great majority of MPs who supported the Remain campaign in June. Will they be prepared to acquiesce in the extraordinary risks before implicit and now explicit in May’s strategy simply because they fear to challenge the outcome of a narrowly won advisory referendum, fought on a doubtful franchise and conducted throughout on a basis of wishful thinking and downright mendacity? No question will be more important for the country over the rest of the decade than that one.
Brendan Donnelly has been Director of the Federal Trust since January 2003 and is a Senior Research Fellow at the Global Policy Institute. He is a former Member of the European Parliament (1994 to 1999).
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