For the Prime Minister and the Brexiteers the Brexit process has been like a voyage of discovery that starts in fantasy land, invariably involves a lot of bluster and posturing along the way, but always seems to lead inexorably to the same destination: capitulation.
The bluster always comes first. The government and their Brexiteer cheerleaders in the media are predictably outraged and disgusted by the EU’s completely unacceptable demands. ‘Who do these faceless Eurocrats think they are, coming over here, telling us that we can’t have our cake and eat it?’, they harrumph, before wrapping themselves in bunting and chanting about how they’re going to ‘take back control’.
Next up is the posturing. ‘Right, we’ll show those cheeky blighters who’s boss’, they mutter. ‘I know, let’s put down some red lines: sequenced negotiations? No chance - that’ll be ‘the row of the summer’; Single Market and Customs Union? Nope - we’ll be having a clean Brexit, thanks very much; divorce bill? Hah, they can “go whistle” for that; ECJ jurisdiction? Over our dead bodies!’
But then they watch in horror as the red lines go up in smoke the moment they come into contact with reality, and capitulation promptly ensues. The row of the summer lasted until about lunch time on day one. Clean Brexit has been replaced by full regulatory alignment, go whistle has become £40 billion, and ECJ jurisdiction on citizens’ rights will continue until 2029.
We should all welcome the fact that market access and trade talks can now begin. But just think how much more quickly we could have arrived at this point. All that bluster, posturing and tub-thumping has been deeply counter-productive, damaging and futile. Imagine what could have been achieved if the Prime Minister had resisted the jingoism of the Brextremists, right from the start, and instead based her approach to engaging with the EU on common sense and realpolitik.
Mrs May’s decision to base her entire negotiating strategy on a set of unachievable red lines has not only left her discredited in the eyes of the EU, it has also left her dangerously exposed at home. The now familiar pattern of over-promising and under-delivering produces the worst of all worlds, as it leaves her looking weak in the eyes of her Brexiteers, and naive in the eyes of her Remainers.
The document that details the terms of the agreement on sufficient progress that was announced in Brussels on Friday is the ultimate illustration of the way in which the British government has been forced to concede, fudge and capitulate, as set against the red lines that have been established by Theresa May, since she became Prime Minister.
First, on the role of the ECJ. In her Lancaster House speech in January the Prime Minister unequivocally declared that we would:
“Take back control of our laws and bring to an end the jurisdiction of the European Court of Justice in Britain ... And those laws will be interpreted by judges not in Luxembourg but in courts across this country”.
But Friday’s sufficient progress report states that:
“The use of Union law concepts in the citizens’ rights Part of the Withdrawal Agreement is to be interpreted in line with the case law of of the Court of Justice of the European Union by the specified date”.
Second, on the Single Market and the Customs Union. At Lancaster House she said:
“I want to be clear. What I am proposing cannot mean membership of the Single Market.”
“That means I do not want Britain to be part of the Common Commercial Policy and I do not want us to be bound by the Common External Tariff. These are the elements of the Customs Union that prevent us from striking our own comprehensive trade agreements with other countries.”
But the section of the sufficient progress report which deals with the Irish / Northern Irish border issue states that:
“In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Single Market and the Customs Union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 Agreement.”
Third, on settling the financial accounts. At Lancaster House she said:
“And because we will no longer be members of the Single Market, we will not be required to contribute huge sums to the EU budget.”
But the sufficient progress report states that:
“The UK will contribute to, and participate in, the implementation of the Union annual budgets for the years 2019 and 2020 as if it had remained in the Union.. The UK will remain liable for its share of the Union’s contingent liabilities as established at the date of withdrawal.”
I could go on, but I think you get the picture.
We simply cannot afford to have further time wasted on all the bluster, posturing and indefensible red lines
The focus of the negotiations will now shift to the terms of the transition period, which will no doubt trigger the all-too-familiar pattern of bluster, posturing and capitulation. The EU has made it absolutely clear that the transition period has to be a carbon copy of the status quo. On 3 October the European Parliament responded to the Prime Minister’s Florence speech by issuing a resolution which welcomed the realism of accepting the need for a transition period, but which also defined the terms, as follows:
“such a transition can only happen on the basis of the existing European Union regulatory, budgetary, supervisory, judiciary, enforcement instruments and structures… [it] can only be the continuation of the whole of the acquis communautaire which entails the full application of the four freedoms (free movement of citizens, capital, services and goods);… [and] stresses that such a transitional period can only be envisaged under the full jurisdiction of the Court of Justice of the European Union (‘ECJ’)”
And then on Friday, with the ink on the sufficient progress report barely dry, the guidelines for the 14 December European Council were leaked, and on transition they are unequivocal:
“The European Council… agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions”
Let’s be clear: the terms of the transition period, like so much else in this process, are not up for negotiation. The EU has determined what they will be, and the UK will either be obliged to accept them, or to crash out of the EU without a deal.
But the question is, has the Prime Minister squared this off with her Brexiteers in her Party, and with the 17million people who voted Leave on 23 June 2016? Has she looked them in the eye and said ‘look, I know you voted to take back control, but the fact of the matter is that we won’t actually be leaving the EU at all on 29 March 2019. Instead we’ll be entering into a period of at least two years where we’ll still be subject to EU law. So, in effect the only thing that will change on 30 March 2019 is that we’ll have no MEPs, no Commissioner and no representation at the Council of Ministers.’
Does she really think that’s what Leave voters voted for?
And does she really believe that the Brextremists in her parliamentary party are going to put up with that?
Clearly not. But we simply cannot afford to have further time wasted on all the bluster, posturing and indefensible red lines. The Chancellor of the Exchequer described the transition period as a ‘wasting asset’, and he’s right. If businesses are not provided with urgent confirmation and definition of the transition period they will trigger their contingency plans, and up sticks. The Prime Minister must therefore have an honest conversation with the British people and with her parliamentary party about the reality of the transition phase, so that there is greater clarity and realism than has been the case to date.
The same goes for the future relationship. Last month I and my fellow members of the Brexit Select Committee met with Michel Barnier in Brussels, and he made it clear is that when it comes to the final trade deal, for the EU, the integrity of the single market will be paramount. In practice what Mr Barnier meant is that there will be no social or economic undercutting: if we want a trade deal on any terms, we will have to maintain social and workplace standards and avoid any regulatory undercutting. This further confirms that the dreams of the Brexiteers to turn the UK into a European version of the Cayman Islands will, like all their other Brexit dreams, founder on the rocks of reality.
As a patriot I am deeply troubled by the way in which the Brexit process has turned us into a supplicant nation. The fact is that we’re not really engaged in negotiations, at all. We’re on the receiving end of a set of decisions that were all taken by the EU 27 several months ago - decisions that then get communicated to us by Mr Barnier, and with which we are simply obliged to comply.
Those of us who campaigned for Remain have always known that this would be the case. Let’s hope that the Prime Minister and her colleagues have also now finally woken up to the harsh reality.
Stephen Kinnock is the Labour MP for Aberavon