The Government must not allow the UK to drift into permanent EU purgatory

The Government must not allow the UK to drift into permanent EU purgatory

Nearly 15 years ago I sat on the body which drew up the European Constitution, the precursor to the Lisbon Treaty. I witnessed first hand the complexity of Brussels and the methods used by EU politicians to shape discussions in their favour. There are two particular tactics I remember from this experience, and the Government would do well to recognise these as they sit round the negotiating table.

The oldest trick of EU negotiators is to demand the impossible, then appear to concede to make it seem that they’ve given up something. The so-called ‘punishment clause’ in the draft EU Transition Treaty is one such example. Brussels has backed down from a measure which would have given it unprecedented legal powers, allowing it to impose sanctions without the oversight of European courts. This extraordinary clause was never likely to receive approval, yet its exclusion gives the impression the EU has given way.

The second oldest trick in the EU politics playbook is to make an unpopular decision, and then delay implementation until no one who was responsible for it remains in office to be held accountable.

We’re now seeing this very same principle, but in reverse. Brussels publicly says that it accepts the referendum result and acknowledges the UK will leave the EU, but behind the scenes it is doing everything it can to keep us in the EU in all but name.

A prime example of this is again contained in the draft Transition Treaty, specifically Article X+3, which demands that the UK acts in accordance with the principle of ‘sincere cooperation’ during the transition period. This may seem like harmless language with which only lawyers should concern themselves, but it could result in the UK being stuck in permanent transition.

Why? Because ‘sincere cooperation’ means the UK won’t be able to negotiate trade deals with non-EU countries during the transition phase. David Davis himself warned last month that “sincere cooperation… is what stops us from arriving at trade deals, negotiating and signing trade deals now”.

The result of this is that the UK wouldn’t be able to properly prepare for life outside the EU. The Government has stressed that the transition period is key to allow the UK to engage with the rest of the world to negotiate trade deals and give businesses time to adapt to new trading arrangements. In the knowledge that Britain would be unable to establish future trade partnerships by negotiating alternative trade deals with non-EU countries, Brussels would have an incentive to give the UK a bad trade deal. By making such a move, EU negotiators might believe that it would force Britain to request extension after extension of the transition period in the hope that a better UK-EU trade deal could be achieved.

This would mean that for as long as Brussels refused to offer an adequate trade deal, the UK would be faced with little choice other than to prolong the transition phase and continue to pay billions into the EU budget and be subject to EU law. At the same time, we’d have no part in decision-making so Brussels would be able to enact its plans for further integration. This would be permanent purgatory, EU-style.

This is why the Government’s response to the EU’s draft Transition Treaty falls short. The transition period should be about the practicalities of putting Brexit in place, not putting limits on the necessary steps we can take to prepare for life outside the EU.

The Government should have demanded the inclusion of an explicit statement that the UK is both not bound by the principle of sincere cooperation, and will not be restricted in taking steps needed to prepare for Brexit. Ministers should have also made clear that, while the UK will abide by the rules of the Customs Union during the transition period, we will have the power to negotiate and sign our own trade deals. And lastly, the text should have a categorical statement that there is no possibility of an extension of the transition period beyond 31st December 2020. The EU must know that at the end of the transition phase, the UK will leave with a trade deal or trade on WTO rules. This would incentivise Brussels to negotiate a comprehensive trade deal in good faith.

Any outcome which sees the UK stuck in perpetual transition – accepting the jurisdiction of EU law, allowing free movement of people and sending billions of pounds to Brussels each year – whilst not being able to influence EU policy, would be unacceptable to the British people. And by extension, it should be unacceptable to UK politicians. We also can’t allow ourselves to be put in a position where we’re having to negotiate with a newly-appointed European Commission in 2019 and making automatic payments to the next EU budget cycle after 2020.

There is still time to resolve these issues. The Government must take action to secure our ability to prepare for life post-Brexit, or otherwise risk leaving the UK in a state of legal limbo.