Monday, 31 July 2017

Trans Europe Express

There's been a lot of talk about transition deals in the last few days.  What's going on?  I, for one, think it's time to find out.

I always like the way that David Allen Green lays out his thinking in numbered points so I thought I'd give that a go.  I have to say that I like it a lot.  It makes it look lawyerly and implies a level of gravitas not normally associated with this blog.  Another plus point is that it makes for a shorter post. Enjoy.

1.  The two year limit laid down in Article 50 can be extended if all parties agree.  The EU will certainly not contemplate that because it would leave the UK a full member of the EU and lead to UK MEPs in the next European Parliament.  The last thing they want is year after year of Roger Helmer and his obsession with spreading falsehoods about the pH scale.  The UK government have also pledged that its EU membership will terminate on 31 March, 2019.  If the UK wishes to extend the available negotiating time then it needs a different solution.  The buzzword for that is "transition deal".  This is as meaningless and hard to define as "red, white and blue Brexit" and "Brexit means Brexit".

2. The UK has not yet actually asked for a transition deal and made no mention of it in the Article 50 letter that Theresa May delivered to the EU.  They will have to formally ask for one instead of leaking it to the press and making personal speeches about it.

3. As it stands, Michel Barnier has no authority to grant the UK a transition deal.  The limits of his powers are laid out in the position papers agreed by the European Parliament and the Council of Ministers. If the EU wishes to grant Barnier the power to agree a transition deal then it will first need to formally iterate on its position until it reaches a final consensus and publishes that in the form of a position paper.  This will take some time.
4.  The EU has made it clear that a transition deal is contingent on the UK first laying out its final goal to a level of detail that has so far eluded our brightest and best political leaders.  The EU, of course, need to weigh up the pros and cons of granting the UK's wish but to do that they need to know basic details about those pros and cons. Unfortunately, the UK government cannot do this right now. We've waited for over a year for any kind of credible consensus to emerge from Cabinet.  We're still waiting.

5.  It is not in the EU's interest to rush into an agreement on a transition deal.  UK businesses are currently moving their operations to EU soil so that they can carry on trading in the EU after the UK ceases to be a member.  The EU's interests are best served by granting the transition deal only after UK business has taken flight to the EU.   This is the one and only time that the expression "cake and eat it" can be correctly applied to Brexit.

6.  The transition deal will be, in actual fact, an extended period of negotiation and preparation. Two years just isn't enough and many figures in the UK government have finally acknowledged that more time is required to secure an orderly, negotiated Brexit.  The government are therefore signalling that a transition deal is a necessary condition for an orderly exit from the EU and that without one the exit is guaranteed to be disorderly.  How will they respond if agreement on a transition deal just isn't possible?  A failure to secure a transition deal ought to end the political reputation of everyone involved.  It should also lead to a fundamental rethink on the practicalities of exiting the EU.

7.  A transition deal will only be granted by the EU if the UK accepts pretty much all of the obligations of EU membership.  The UK government cannot agree even on this point.  Liam Fox, for example, is adamant that freedom of movement will end on 31 March, 2019.  That position rather diminishes the chances of the UK ever entering a transition phase.

8.  All treaties between the UK and the EU lapse on 31 March, 2019.   The EU will simply go through every relevant document and strike out "United Kingdom".  The only way that the UK can temporarily restore its relationship with the EU is through new time-limited treaties that approximately replicate the existing treaties to whatever extent is required.  This is a problem because the EU requires unanimous agreement on all new treaties. If I was to criticise one feature of the EU it would probably focus on the slow pace of internal agreement on almost any topic.  Meanwhile, the clock is ticking away.

9.  Due to time restrictions, the only options that could ever be made available to the UK will be very close to existing legal templates.  The most obvious of these is something akin to  EU membership with budget contributions, full participation in the 4 freedoms, the role of the ECJ, and the Customs Union.  The further the UK wishes to travel from that template, the less likely it is that the EU will unanimously agree and the longer it will take to negotiate.  That annoying clock is still there marking the passing of time.

10.  The UK cannot meet the obligations of EU membership while also rewriting all of its law to exclude the influence of EU courts, treaties and technical agencies.  Will the Repeal Bill have to wait for a later time? Only the EU can answer that but given that the EU is governed by process and law I think we can all guess the answer.

11.  Will the EU allow the UK to negotiate and/or sign FTAs with third parties while also a member of the European Customs Union?  This is exactly the kind of tricky and controversial detail that will take time to agree.  The clock is still ticking.  Will someone please stuff it in a drawer or something? Honestly, it is doing my head in.

12.  An interim period of effective EU membership has all sorts of consequences for the exit agreement. For example, the EU might decide to shift the cut-off date of permanent residence status to the date when the EU exits freedom of movement rather than the date when the UK ceases to be a regular member of the EU.  It might also have an effect on the exit bill because the UK might end up naturally meeting all of its financial obligations just through a prolonged period of budget contributions.

13.  There is no guarantee that the EU will agree to an extended period of negotiation.  The UK are behaving as thought it is a done deal and can be unilaterally agreed.  It doesn't work like that.

14.  This one is a bit of a curiosity but the 2011 European Union Act means that in certain cases treaty changes in the EU end up being put to to a UK referendum.  Let's ponder Clause 4(4)(c) for a second: "in the case of a treaty, the accession of a new member State."  Personally, I like the inherent recursion of that one.  Perhaps 4(1)(i) is more to the point: "the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom".   This last point is really just a curiosity but I found it rather entertaining and wanted to end on a weak chuckle.

Over and out,


 PS I really wanted to write something more detailed about the transition deal but I've been busy all weekend.  I'm afraid this will have to do.


  1. I think 14 points was quite detailed enough. I was just glad to see that you'd managed to get past 13.

    Things are bad enough without tempting fate.

    It remains an utter mystery to me why this referendum was ever agreed to in the first place. I think even reasonably educated people had little idea of the extent of the changes that would be involved. But there must have been people in government who knew what COULD happen? I feel we were let down there.

    And why, after the referendum and Cameron's resignation from the Commons for the more lucrative world of after dinner speeches, was the current prime minister in such an all-fired hurry to start the time limited process, when there was no obligation on her to do so.

    (And then, for heaven's sake, to stop work on it so she could have a needless election, wasting six precious weeks.)

    She could have waited, done all the ground work, got her departments up and running with some staff that knew more than where the toilets were, THEN sent her Article 50 letter.

    But no. She messed it up. Like everything else she does.

    Not only has she surrounded herself with second rate politicians, but they are second rate politicians at each other's throats all the time.

    And if we ever needed an effective opposition, this is the time, and Labour are as useless and as divided as the Tories.

    Not for the first time I wish I were Icelandic.

    Guð blessi Ísland

  2. I'll be amazed if the UK manages to negotiate a transition deal before the clock strikes twelve.

    Liechtenstein has never appeared more attractive. That is a statement I never thought I'd say.

  3. Replies
    1. In Liechtenstein? Yes, some sort of German dialect. Probably easier than Icelandic, though. I've heard that Icelandic is quite a challenge.

  4. I believe that Icelandic is quite a challenge, what with all that runic stuff and all, but on the other hand almost everybody there speaks English.
    Why Liechtenstein, Terry?

    1. It is probably the most boring country in Europe but now seems a lot more attractive due to Brexit. Sorry, just a terrible attempt at a weak joke. I should stick to poultry puns.

  5. This comment has been removed by a blog administrator.


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