07/02/2018 16:34 GMT | Updated 07/02/2018 16:34 GMT

Theresa May's Brexit: What They Say Isn't What You Get

As things stand, it's difficult to get any impression but a government gearing up for talks to fail and preparing its story about who else to blame

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Since Theresa May first declared that ‘Brexit means Brexit’, analysts have struggled to make sense of what this will really look like. From the start, the Prime Minister was swift to rule out more possibilities rather than focus on what she wanted to achieve. There would be a swift end to free movement, Britain would leave the Single Market, the European Court of Justice will not overrule the UK Supreme Court anymore and so on.

In fact, we know more about what Brexit is not than what it is. As I’ve noted before, saying ‘Brexit’ was the easy part. Claiming to act in support of the will of the public voting for Brexit, May proceeded to swiftly reject the main promises of the official Vote Leave campaign her now Foreign Secretary championed: no £350 million per week for the NHS or public services and no points-based immigration system were the key headlines. So Brexit means something different than what its campaigners argued for.

Removing so much from negotiation has now left May with little to bargain over beyond a divorce bill finally conceded and the uncertainty about what rights EU nationals in the UK will have to stay after Brexit. Things are now going so badly the Chancellor and Brexit Secretary have written to their EU counterparts asking for their ideas on what Britain might want from negotiations. It’s difficult to see this going well.

Things rarely stay the same in politics - and the ground may already be shifting. Public opinion polls have shown greater support for remaining in the EU than leaving it. After declaring the referendum as final, even Nigel Farage is beginning to favour a second public vote.

One key issue is membership in the Single Market and Customs Union. The government’s position seems straightforward: it wants out, but keeping things essentially the same. It’s like demanding to get full membership benefits without paying the club fee. Thus far this argument isn’t getting them anywhere with EU negotiators.

The penny is slowly dropping for the government too. A newly leaked Brexit impact analysis found the UK’s economy would suffer outside the EU whatever the final deal. No deal seems much worse than any deal after all.

Despite promising post-Brexit trade deals will be easiest to make in human history, the government’s trade chief Liam Fox has started warning Eurosceptic colleagues they will be ‘disappointed’ by the Brexit that Fox will actually be trying to deliver. The clearest sign yet that what was promised to voters in the referendum will not be happening whatever Brexit is supposed to mean. Cue disappointment on all sides Leavers and Remainers alike.

This new recognition of the reality – not only the hot air rhetoric – about the changing nature of Brexit is leading to a changing attitude in Parliament as more call for a rethink on the complex issue of market membership. While May has ruled out a Norwegian model and the like, it’s true that leaving the European Union does not require exiting the Single Market or Customs Union. However, May’s past remarks that Brexit means exiting these memberships too will cause real political difficulties for her if there is a u-turn.

So if Brexit does not mean Brexit, might market membership mean something else too? The government has committed to keeping all existing rights under EU law and keeping our post-EU regulatory framework aligned with the EU, not least to address concerns about Brexit’s impact on Northern Ireland’s border. In fact, it’s all but impossible to see how a hard border can be avoided without some form of Customs Union – although there are remain other sticking points like citizenship rights I’ve highlighted before.

The Labour Party has been articulating a move towards supporting ‘a customs union’ rather than the Customs Union. This is a wise move and not semantic shenanigans. Undoubtedly, those voting for Brexit will expect to see change and doing nothing is not an option. Equally, no deal or agreement raises huge problems as well not least launching new customs regulations, trained staff and more in a year while putting the Good Friday Agreement in jeopardy. This reality must be confronted.

During the EU Referendum debates, I spoke with a lead campaigner about strategy noting that his Vote Leave colleagues were big on rhetoric and short on details. Why not produce something like Alex Salmond’s blueprint for an independent Scotland?, I asked. He replied that the lesson learned was to avoid details and worry about them later.

This leave it and see attitude hoping for the best safe in the belief that the EU would never let the UK be that damaged from leaving was a winning narrative, but not a recipe for success ― this is because it is in these details where Brexit’s possibilities are laid bare and where the headaches have been found.

While talks are in Phase 2, it’s crucial to remember that Phase 1 isn’t concluded. This means the government is literally negotiating on multiple fronts having not made much progress so far. What is required is more imagination - and probably more compromises - from May’s team if they are to turn things around swiftly. An invitation to Labour to form a new joint negotiating team might be increasingly untenable, but a possible game changer. So too the plan to find a new customs union agreeable to both sides. Either way, keeping the same course of action isn’t producing results and time is swiftly running out. What Fox and colleagues call ‘disappointing’ today, may become something much worse and soon as the reality becomes more stark.

As things stand, it’s difficult to get any impression but a government gearing up for talks to fail and preparing its story about who else to blame. Sadly, it’s a familiar narrative. Yet given how quickly May triggered Article 50 before setting out a plan for what her government would want to achieve, most of the blame will surely lie with her. And given her weak position within the Conservative Party, this could prove fatal for her and her successors.

Thom Brooks is Dean of Durham Law School and on Twitter at @thom_brooks