Tomorrow marks 505 days since the UK voted to leave the EU; and 505 days until midnight on March 29 2019, at which point the UK will cease to be a member of the EU, unless the European Council decides unanimously to extend the negotiating period. Now is a good time to assess the state of play.
There is some good news. The Prime Minister’s speech in Florence began to break the impasse in the negotiations. The tone was right, so too the substance – as it was based on hard reality, not whimsy. The Prime Minister appeared to put a sensible approach on the table: if there can be an agreement by March 2019 on the heads of terms of the UK’s future relationship with the EU, the UK would continue to contribute to the EU budget for a period – possibly two years – during which the UK would continue to abide by existing EU processes, and the details of the new relationship could be negotiated. A cliff edge would be avoided, while businesses in the UK and EU would only face one set of changes – when the new, final treaty comes into play.
Sadly, that’s about as far as the good goes. We urgently need more clarity on the type of deal we want; progress in the negotiations themselves; legislation in place so we are ready for the day we leave; above all, honesty about the scale of the task and the challenges we face. And the key word is “urgently”.
First, the urgent need to clarify what we want to do with our new found control once we have it. Do we want to de-regulate, or keep regulations the same? Do we want to attract more talent from around the world? These questions need an answer if we are to have clarity on the future framework of our relationship. What’s more important – taking control of our regulatory system, or having access to EU markets? Are some sectors more important than others? These questions need answering – and if we are to get that heads of terms agreement, there first needs to be agreement around the Cabinet table, and fast.
Second, we urgently need to begin the negotiations on the future framework. The EU is still clinging to the concept that “sufficient progress” must be made on the EU budget, the status of EU and UK citizens post-Brexit, and the future of the Irish/Northern Irish border before negotiations can begin on the future EU/UK relationship. This approach has no legal standing in Article 50 itself. It seems oblivious to the political reality: a Conservative and Unionist Party would never countenance placing a border in the Irish Channel between Northern Ireland and the mainland – so the agreement that applies to Northern Ireland must apply to the UK as a whole. And, most glaringly of all, the EU’s approach is completely inconsistent with the guiding principle of all EU negotiations: “nothing is agreed until everything agreed”.
Those six words should now guide the UK Government’s approach. We can, of course, shake hands on a deal on the budget, likewise on how to handle the Northern Irish border and citizens’ rights; but nothing is agreed until everything is agreed – and that includes the heads of terms of the future relationship. We must have that agreement and the double lock – a date and a destination: without it, a transition deal would be a gangplank into thin air.
Third, Ministers should stop pretending an implementation period will begin at the end of March 2019. To have an implementation period, you need a treaty to implement: and we won’t have that by then. The reality is that Article 50 does not allow for a full treaty to be agreed under its ratification process. A full, new treaty is likely to be “mixed”, requiring it to trundle around European Parliaments for ratification: but any treaty that emerges from the Article 50 process would simply go to the European Council and European Parliament – and will cover just the future framework for the relationship. Furthermore, even though the UK and EU regulations are completely aligned today, the scale of the new treaty is such that there’s slim chance of agreeing every dot and comma by early 2019 (as the EU and the UK need to ratify the agreement before the end of March 2019).
So the logic is that – as the Prime Minister herself said in Florence – the existing arrangements remain untouched until the end of the transition, meaning that governments and businesses do not have to change processes twice, once to cope with a transition period, and again when the new treaty kicks in. More clarity – and honesty – on this is needed, now.
Fourth, there’s an urgent need to accelerate the legislative preparations for our withdrawal. Delays to the European Union (Withdrawal) Bill (not to mention the flotilla of other bills that will sail in its wake) increase the chances of a disorderly Brexit – for the simple reason that if our statute book is not tidied up by 29 March 2019, and Ministers have not the powers to put new processes in place, there is real risk of legal (and logistical) confusion, or worse.
I confess that my fingerprints are all over the Withdrawal Bill, as I worked on its drafting. I tried my best to balance the need to pass up to 1,000 statutory instruments by 29 March 2019 with some specific constraints to the powers being given to Ministers. Was my best good enough? Maybe not. There may be further, sensible changes to make to limit the powers and increase Parliamentary scrutiny.
I urge the Government to listen to any ideas as to how to tackle Parliamentarians’ concerns. This is not a usual bill, we are not in usual times, and so this Bill should not be managed by Whips in the usual way. Changes should be made so the Bill gets the support of the Commons as soon as possible. But everyone needs to be mindful of a simple point: the less that can be done by statutory legislation, the more has to be done by primary legislation, the longer that will take, and so the greater the chances of confusion on day one post-Brexit.
Fifth, there is an urgent need for Parliamentarians to understand the futility of trying to legislate to prevent a no-deal outcome. (A no deal outcome is something I don’t want to happen, in case you’re wondering.) Debating this will simply distract debate from other issues – such as the future framework.
Let us imagine that Parliament passes legislation that would force the UK Government to continue to negotiate until it has reached a deal that Parliament seems acceptable. But if the European Union refuses to continue to negotiate, and David Davis sits opposite an empty chair, what can Parliament do?
Some might argue that, in this event, Parliament could force the Government to revoke our notice to withdraw from the EU. Article 50 is silent on this – and so it is a field day for lawyers. But I would make three simple points in response to the question “Could the UK stay in the European Union?” (And I stress the word “stay”.)
Point one: the question assumes we would still be in the EU. Once we pass midnight on 29 March, assuming there is no deal, we would no longer be members of the EU – and the question facing the UK would be “do we want to re-join?”, not “shall we revoke our notice to leave?”
Next, if the Government were to be forced to revoke our notice before 29 March 2019, given the legal ambiguity on this issue, the EU may well exact a price. Buried in a briefing note issued in March, the Commission stated this:
“Once triggered, can Article 50 be revoked? It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.”
There is no legal basis – as far as I can see – for this, and it grates with the spirit of “sincere co-operation” enshrined in Article 4(3) TEU; but it shows the tussle we might have were the Government to try to reverse the UK’s withdrawal.
Next, and most important (and obvious): any Government would surely need democratic legitimacy for reversing the referendum result, or embarking on a policy to rejoin the EU. The British public voted for a government to give them a referendum; voted to leave in a referendum; and then, in June, more than 80 per cent of votes were cast for parties who support leaving the EU. Given this democratic process at the ballot box, it is completely unfeasible and unrealistic to think that Brexit could be reversed without a general election. There is currently no majority in Parliament for a second referendum. So if Parliament wants to have that democratic legitimacy to reverse Brexit before March 2019, MPs’ would not just have to pass a law to force the Government to revoke our notice to withdraw from the EU. MPs would have to pass a vote of no confidence in this Government if there were not to be a deal; and then for the new Government to have a mandate to reverse the withdrawal process.
There is one theme common to all of the above: the urgent need for honesty and clarity. As I have said before, if we are not honest with ourselves, our plans will be built on sand. Consequently, we will lose the trust of those who look to us for leadership, and those with whom we are negotiating. To earn people’s trust, the Government must be honest about the challenges that lie ahead; the need to compromise; the time the negotiations will take. And it needs to be clear about its plan and the final destination.
The clock is ticking.
Lord (George) Bridges of Headley was Parliamentary Under Secretary of State at the Department for Exiting the European Union until June 2017. He writes here in a personal capacity.