Richard North, 13/08/2017  
 


The Telegraph is at is again, offering another of its meaningless stories – this one on the back of an article written jointly by Philip Hammond and Liam Fox.

With no detail provided, us ignorant plebs are supposed to accept that Britain will not stay in the European Union by the "backdoor" and will completely leave the single market and customs union after Brexit in 2019.

All we are allowed to know is that there will be a "time-limited interim period" designed to "further our national interest and give business greater certainty", thereby ensuring "a smooth and predictable pathway for businesses and citizens alike".

Hammond and Fox thus jointly declare that, during this period, "our borders must continue to operate smoothly; goods bought on the internet must still cross borders; businesses must still be able to supply their customers across the EU and our innovative, world-leading companies must be able to hire the talent they need, including from within the EU".

Then, once this miracle is concluded, they tell us that: "we want a permanent, treaty-based arrangement between the UK and the EU which supports the closest possible relationship with the European Union, retaining close ties of security, trade and commerce".

This is seen as ending the rivalry between different factions in the Cabinet but, if this is all we have to go on, then it provides absolutely no reassurance that the government has got a grip on the Brexit process.

Making grand, sweeping statements about wanting "time-limited interim period" is all very well but, as we have found to our cost, in most dealings with the EU – and especially Brexit – the devil is in the detail. And detail there is none.

In a very real sense, this sort of game is an insult to our intelligence. Even the meanest of us can readily see that a declaration that is long on aspiration but entirely devoid of the means of delivery is just hot air. That these people should think that we'd be at all impressed it is a further insult. They must think we are incredibly stupid (or gullible) if they expect us to be satisfied with this.

What this article does tell us though is that there is now a degree of agreement at Cabinet level on the need for an interim period. With that comes the tacit acknowledgement that a full exit settlement cannot be concluded within the two-year Article 50 period.

This is something that was obvious right from the moment we started looking at the implications of Article 50, so all we seen to have achieved is a recognition of something that should have been a working proposition from the moment Theresa May took office.

How an interim deal can work, though, is not at all clear. If it is to be binding between the parties, any agreement will – by definition under international law - be a bilateral treaty between the UK and the EU-27. There can be no getting past this. A binding agreement between parties, creating obligations under international law, is a treaty – no matter what it is called.

Then, to be effective, this new treaty must cover most of the moving parts of the existing EU treaties, and will have to provisions for surveillance, complaint handling and formal dispute resolution.

If the agreement is not binding (as in a memorandum of understanding or an exchange of letters) then it will not be enforceable. There will be no way that the UK can insist that the Member States follow any lead given by the EU institutions, making it a recipe for chaos.

We are, therefore, looking at a secession treaty, the very thing to which we have been referring for some time. And that is not going to be easy to frame, possibly taking up all the time remaining before we drop out of the EU treaties.

Technically, of course, that will mean that we are out of the EU, although we will end up in a treaty relationship with the EU which, logic would suggest, will be very little different from current arrangements. The more differences there are, the longer negotiations will take, and the greater chance there will be for a breakdown in the talks.

By its nature, this treaty (unlike the Article 50 settlement) will have to be agreed unanimously, and ratification will be required. There remains the possibility of a UK referendum and we cannot rule out other member states putting the treaty to a plebiscite. Not only is there then the possibility that it will be rejected – the time taken may mean that the treaty cannot be in force by the time we leave. It could, however, be provisionally applied.

One must also conclude that, if the bulk of the remaining negotiation time is given over to a secession treaty, this "kicks the can" of the longer term comprehensive trade agreement much further down the road. But it will also relieve us of the "tyranny of the deadline", with the possibility that a decade or more will elapse before matters are concluded.

In the interim – as long as the EU can be prevailed upon to play ball (which is by no means certain) – the UK's relationship with the EU will look and feel very much as if we are still in the EU. The difference, of course, will be that we will have no voting or other input on new legislation, although there will undoubtedly be a price tag for the agreement.

Ironically, the best possible outcome under this arrangement will be exactly the "pay, no say" agreement that the likes of Cameron (and many others since) have attributed to continued participation in the EEA.

Nevertheless, nothing is going to happen without the wholehearted cooperation of the "colleagues". Looking at it from their perspective, the UK will be asking the EU institutions to commit considerable resources to framing, negotiation and agreeing a complex treaty, the like of which usually takes many years to conclude.

Even with the best will in the world, to get this completed (and in force) by 29 March 2019 will be a major achievement. And, so far, there is nothing in the deal that would incentivise the EU and its Member States to commit the resources and the political capital to get it done.

Reference has been made previously to the UK's inability to see Brexit from the point of view of the EU and, in this case, this could prove fatal. Whatever confident pronouncements we might get from the Fox-Hammond duo, nothing is going to happen unless or until the EU has bought in to the process.

Necessarily, wholehearted cooperation from the EU will have its own price – financially and in terms of concession across a range of issues, many yet to be defined. Whether even these will lie in the realm of the politically feasible (for the May government) remains to be seen.

Thus, as always, having been fed on thin gruel once again, we are no further forward divining our EU-free future. One hopes that the position papers due to start flowing over the coming week might give us a little more information, although it would be unwise to expect much of this administration.

Personally, with the government having given no serious (or any) thought to the nature and substance of an interim deal, I think they are biting off more than they can chew. There is simply neither the time nor the capability to push through a complex agreement of this nature – given that there was the political will on the part of the "colleagues", which is very far from being evident.

There is no sign even that Cabinet members are even aware of the complexity of the task that Fox and Hammond are setting out. One can imagine many more months of bickering before there can be any consensus on what an interim deal involves, by which time it will be far too late to achieve a workable agreement.

And on that basis, all we have to go on is another draught of hot air. "Mushroom management", by contrast, would be a blessed relief. At least the mushrooms get fed something. We don't even get that.






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