As the two sides move toward a final Brexit deal one question remains outstanding: why was it so difficult in the first place?
Sitting in a café in Paris last week with a British friend I think I got some insight into how Theresa May must feel when she meets with Michel Barnier or Jean-Claude Juncker. I put to him a number of possible Brexit scenarios but none seemed to pass muster. I was left with the impression that for him only the hardest of hard Brexits will do, not because he is necessarily sure that this is the right course of action, but because the negotiation process has been so torturous. This is a sentiment that seems ever more common among those who voted leave: as the negotiations drag on, and politicians and journalists drone on, heels are dug in and lines drawn in ever tighter circles in the sand.
Perhaps the drama is drawing to a close, though. Theresa May will meet with key ministers today to brief them on her latest plans. The EU’s chief negotiator, Michel Barnier, meanwhile says that a deal is “within reach”, and the Irish government seems reasonably upbeat about the latest form of the customs backstop.
True, The Times reports that leading Brexiteers, such as Penny Mordaunt, Liam Fox and Esther McVey, will be excluded from the meeting and Boris Johnson has complained that compromise will make the country “a permanent EU colony.”
So, the chances are that by next week it will be back to all-out war. After all, that has been the pattern of Brexit negotiations so far: number ten’s idea of a deal is trumpeted only to be rejected by either Brexit ultras or the EU. Sometimes both.
Quite why the Brexit negotiations have been so torturous is a mystery. Yes, Brexit was always going to be a complex business, but it is not beyond the wit of humanity to sort it out.
Leaving aside the Irish border – and, admittedly, that’s quite a lot to leave aside given that the simplest solution to the problem, a customs-only sea border, would likely bring down the government – the hardest parts are not the big ticket items, but dull technical matters. Important, yes, but not anything that should have roused the heckles of Brexiteers.
When then-prime minister David Cameron promised the referendum on EU membership he said that it would be an in-out affair and this is precisely what he delivered. Designed to assuage the fears of eurosceptics who feared a stitch-up, the referendum offered a clear choice between continued EU membership and leaving the bloc. The public voted to leave and so leave the country must, lest it risk an utter collapse in public trust in politics.
The problem is that the referendum didn’t say anything much about the nature of Brexit itself – and key Eurosceptics were quite willing to countenance what is now called a soft Brexit. At least they were prior to the vote.
Since then the mood music has increasingly reflected a sense that the only acceptable deal is a cliff edge. The bluster from hardliners initially put the prime minister along the road to a much more Brexity Brexit, but not only has it backfired by painting the UK into a corner, it also smacks of desperation: it is one thing for remainers to be bad losers, but it is quite another for leavers to be bad winners.
One of Theresa May’s first moves as prime minister was to rule out membership of the European Economic Area (EEA), and it’s easy to see why: as a former remainer May needed to demonstrate that she was committed to the cause of Brexit. In this context, becoming a “rule taker rather than a rule maker” was seen as the worst of all possible worlds.
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And yet, if leave really means leave perhaps the EEA route should have been taken more seriously. The disastrous 2017 general election held the key to a compromise that might just have worked for everyone.
The two year Article 50 process for leaving the EU, introduced by the Treaty of Lisbon, is designed to be difficult: to you and I the last two years might feel like a lifetime, but it is really not very long to negotiate the terms of withdrawal from a body that has so deeply penetrated political and economic life.
Opinion is divided on whether or not the UK can easily join the EEA: some analysts say that unless the country gives express notice otherwise it will automatically be bound by EEA rules under Article 127 of the EEA agreement. Others have argued that the UK leaving the EU will leave it immediately outside the EEA.
As Britain is bound by the Treaty of Lisbon, Article 50 itself cannot be on the table, but it could have been eased had the British government committed to a status akin to, but perhaps not identical to, EEA/Efta. In such a context the EU’s chief complaint — that Britain doesn’t even know what outcome it wants — would have melted away and, as the terms would be clear to all, the country could have been out of the EU already. True, little would have changed on the issues that triggered British euroscepticism in the first place, but the country would, formally, be outside the bloc.
That would have left remainers thoroughly demoralised, whereas now they have been energised by the prospect of triggering a second referendum. And why shouldn’t they be? It is a fair bet that it would be easier to simply call the whole thing off than it is to convince the British public to vote to re-join the EU once it is outside. Meanwhile, the desire to put clear blue water between the UK and EU would have disciplined any eurosceptic MPs thinking of rebelling – as long as one condition was met: that whatever association with the EU that was cooked-up was only temporary. And this is where the 2017 election comes in.
Having a fresh mandate following the general election, albeit a minority government propped-up by a confidence and supply agreement with the Democratic Unionist Party, were the country already outside the EU Theresa May and her cabinet would have been free not only to pursue trade agreements, but also continue to move further away from the bloc, with a view to leaving the EEA within the lifetime of the parliament.
Where would this leave remainers? In precisely the place eurosceptics found themselves after losing the 1975 referendum: square one. They would be free to campaign to rejoin the EU, but unable to use the law as a stand-in for engaging with the public.