When Britain went into the first round of talks with the EU two months ago, its chief negotiator was pictured facing his Brussels counterpart with no notes on the table in front of him – as if to confirm what critics of Brexit believe, that the UK government is woefully unprepared to leave by March 2019.
On Monday, at the start of the third round of negotiations, David Davis, the UK Brexit Secretary, will have a stack of documents to hand. After the EU’s growing impatience at the lack of preparedness from the UK side in the first two rounds, the British government has published several Brexit “position papers” setting out how it sees the UK’s relationship with Europe once it leaves in just 19 months’ time.
It was not just accusations of disorganization that has spurred the government of Prime Minister Theresa May into action. Over the summer, legal experts, businesses and the Prime Minister’s own Treasury department warned of the consequences of crashing out of the EU under a “hard Brexit” without any transitional arrangements agreed in advance.
In January, the Prime Minister had boldly declared that “no deal is better than a bad deal” with the EU, making clear that the UK would be ready to walk out of negotiations – and Europe – if it didn’t get its own way. But in June, she lost her overall majority in a hastily called election and no longer has the power to play hardball.
The straightforward argument – to take back control from Brussels – that persuaded the British people to vote for Brexit last year has given way to pragmatism. The “no deal” ultimatum has been replaced by more realistic proposals.
Yet whether they will bring Britain and the EU any closer to a deal on Brexit remains to be seen. From the point of view of Brussels, the papers still represent far too much of the UK’s desire to “have its cake and eat it”.
So what have we learned from the position papers published this week?
Customs arrangements and the single market
According to the position paper on customs, Britain would leave the customs union, which allows EU countries to trade freely with each other without tariffs. Yet the UK says it wants a special deal with Brussels involving a transition period of two to three years, during which it would keep the benefits of membership of the customs union whilst ministers seek trade deals with other countries.
This proposal of a transitional deal would avoid what many have warned would be the “cliff edge” scenario after the exit date of March 2019, which would result in long queues at British ports to move goods into and out of the bloc. Every year, 2.6M trucks pass through the Channel port of Dover without the need for customs checks, posing a huge infrastructure challenge post-Brexit.
This desire for special treatment, in which Britain would step outside formal EU membership yet remain closely aligned to the EU’s trading and customs systems, is viewed skeptically by the remaining 27 nations.
Legal experts and Brussels officials warned that taking part in trading arrangements with the EU should also mean abiding by the bloc’s rules. Last weekend, Sir Paul Jenkins, who was the British government’s top legal official for nearly a decade, said May was “foolish” to think the UK could carry on reaping the economic benefits of access to the single market without adhering to EU law.
The Irish border
At present, there is no hard border between the Republic of Ireland and Northern Ireland and the UK government wants this situation to remain – an invisible border, with minimal checks on goods passing between north and south. Smaller traders would be exempt from any checks, while larger firms would be required to sign up to “trusted trader arrangements” using electronic checks.
The future of the Irish border raises serious questions because any suggestion of a “hard border”, with checkpoints, risks undermining more than two decades of the peace process between Northern Ireland, the republic and the British government.
Yet a porous border would also mean there would be no guarantee that goods entering post-Brexit Northern Ireland from the rest of the world – controversial chlorinated chicken from the US, for example – would not subsequently travel south and enter the EU in breach of single market rules.
The European Court of Justice
Papers on civil judicial cooperation and on international arbitration over disputes between the UK and EU make clear that Britain intends to break free of “direct” jurisdiction of the ECJ, the court which interprets and enforces EU law on issues including trade and security.
But the word “direct” is key here: British officials have acknowledged that with a close continuing relationship between the UK and EU, there would need to be mutual respect for each other’s legal systems.
So future cooperation on judicial matters would involve a “close and comprehensive framework” to “mirror closely” the existing system so that cross-border disputes were resolved swiftly. On arbitration of disputes between the UK and EU, the British government accepts that the ECJ could still have jurisdiction during the transition period.
What we have learned
This approach of May’s government to “have its cake and eat it” – to break free yet somehow remain as close as possible – risks angering the Brexit purists, including many in the Conservative Party, who campaigned for Britain to cut all ties with Europe and set its own course on trade and law. Wrestling free of the ECJ, in particular, is a totemic demand of the anti-European Tory right wing, and any suggestion of a continuing relationship with it could cause a revolt.
Taken together, these papers show how May’s government has finally realized it cannot take a sudden and dramatic leap in the dark – which would be hugely economically damaging and technically difficult. But this process of clarification has also served to highlight how complicated Brexit is turning out to be.