Richard North, 28/08/2017  

I am not sure that Keir Starmer and his Labour colleagues really understand what they are taking on, in pursuing their new-found policy of promoting a transitional deal. And they should hardly expect to be showered with praise for concluding the obvious – that a full-blown deal can't be negotiated within the two-year Article 50 process.

The thing is, if Labour's idea of a transitional deal is continued participation in the Single Market and that we should "remain" in a customs union, during which period we continue to accept freedom of movement and be bound by EU rules, it might just as well argue for an extension to the Article 50 process, giving us a few more years to conclude an agreement.

The downside of that, of course, is that any extension would require the unanimous agreement of all 27 EU Member States, but that is hardly more problematical than seeking a transitional deal which incorporates Single Market privileges and membership of a customs union.

Once again it must be recalled that, under the provisions of Article 50, the EU Treaties cease to apply to the UK, either from the date of entry into force of the withdrawal agreement or, failing that, two years after the Art. 50 notification. This means that, for the Single Market acquis to be re-applied (assuming we have left the EEA), then a new and separate treaty must be negotiated. The same goes for a customs union.

Article 50, itself, is vague as to the precise nature of the withdrawal agreement, but it is clear that it should set out the arrangements for the withdrawal of the departing state. It is required to "take account" of the framework for the departing state's future relationship with the Union, but the reference suggests that any framework is a separate entity, and not part of the withdrawal agreement.

Furthermore, the reference is to a "framework" rather than a completed work, which implies that, before a withdrawal agreement is concluded, there needs only be a general understanding of the direction of travel. There is nothing written in stone that says that the future relationship should be finalised, or formally agreed.

That said, one has to recall that Article 50 was but one article in a Constitution for Europe, included primarily as a gesture to illustrate that the EU was a voluntary association of states. It could hardly said to be "voluntary" if there was no exit provision, and so Article 50 was born.

As far as I can recall (and the records are a little hazy on this), the Article was part of a bundle of provisions given only an afternoon for debate by the Convention, so there was very little in the way of detailed discussion about how it should work. In fact, it was never intended to be used. The gesture was made, and that was enough.

This means we are saddled with a very superficial template, on which to base extremely complex negotiations of huge importance to the UK (and the remaining EU members). But the Article itself (and the treaties) do not stand alone. They themselves rest within a framework defined by international law and, in particular, the Vienna Convention on the Law of Treaties.

It actually matters not that some EU members are not party to the Convention. The text is regarded, in the main, as codifying what is known as customary law – a basis of international law akin to common law at the nation state level.

Of particular relevance here is the principle in law, stated in the Latin as they so often are, of Res inter alios acta vel iudicata, aliis nec nocet nec prodocet. Loosely translated, this means that two or more people (or states) cannot establish an obligation for a third party who (which) was not involved in a negotiation, and any such party must then agree to accept any obligations arising.

This is embodied in Article 34 of the Vienna Convention, which states that a treaty cannot not create either obligations or rights for a third State without its consent. And it is this, together with the provisions of Article 48 of the Treaty of the European Union (on treaty amendments), which require a new treaty to be agreed before new, binding obligations can be assumed.

Another point to take on board is that the Article 50 withdrawal agreement is not in itself a treaty – or at least, not one that is binding on the EU Member States. It cannot establish obligations for those Member States, as they are not directly involved in the negotiations and the agreement is finalised by QMV. It does not, therefore, satisfy the provisions of Article 34 of the Vienna Convention.

In this context, when Starmer talks of a transitional agreement, the detail is important. If he plans to use the EEA as the framework, then the UK has the advantage that we are already a party to the EEA Agreement, and does not need to negotiate provisions from scratch. We can adapt the treaty to our specific needs, using the simplified amendment procedures written into the Agreement.

If, however, we are going to work entirely outside the EEA framework, then the transitional arrangements must be part of a new treaty, framed in accordance with Article 48 of the TEU. This will require unanimous agreement by all the member states and ratification by all parties, including the UK – where Parliamentary ratification will be required (and possibly, even a referendum).

But nowhere in his article does Starmer specify the nature of the transitional deal he will seek. He does npt mention the EEA at all. If he intends to start from scratch and needs to agree a new treaty (which he will also need for his customs union), this has profound implications on timing.

Here, one assumes that the withdrawal agreement must be agreed, and that at the moment is stalled over the first three issues. Even if these are settled, the talks must then move on to considering the framework for our future relationship with the Union and only then will we be able to look at transitional arrangements.

Allowing six months for signing and ratification of a transition treaty (and to process the approval of the withdrawal agreement), that gives us a perilously short time for negotiating something which, in the ordinary course of events, would take years – even with all parties committed to its rapid conclusion.

In short, without the detail, Labour's new policy is moonshine. Without very clear indications of how it can be implemented, it is nothing more than a statement of aspirations which has no hope of coming to fruition. And aspirations are not policy.

Bizarrely, though, even (or especially), the Financial Times are amongst those which have fallen for the smoke and mirrors of what amounts to a non-policy. The Labour party's announcement, it says, "is the best news to come out of British politics in a long time".

With clearly no idea of what is involved, it suggests Labour is grappling "with the economic realities of leaving the EU, putting it "many steps ahead of the Conservatives". The Tories' "constructive ambiguity", says the FT, has long looked much more like a failure to make up its own mind. Only this summer has the government tiptoed towards to a more rational position, acknowledging the need to avoid a "cliff edge" separation.

There speaks a newspaper on the eve of the third round of talks where most rational observers expect no progress to be made, and where the risk of failure is extremely high.

But as with Starmer himself, the paper is mesmerised by the outcomes, without considering how they could be achieved or even whether they are achievable. To avoid the cliff, we are told, Britain will have to abide by all the EU rules while a new relationship is established. That means accepting EU regulations, free movement, and ECJ jurisdiction, and precludes separate trade agreements. It also undoubtedly means continued financial contributions to Brussels; the EU27 have made the money a priority.

There is no other way, the FT opines, to ensure that businesses and workers in the UK will be spared serious disruption and, most importantly, to avoid the reimposition of a hard border on the island of Ireland.

And then, we have the death knell of rationality. Labour, the FT has noted, remains unwilling to spell out the relationship it wants once the transition is over. It might aim to stay in the single market - or it might not. But that's fine by the FT "Whatever the motivation, the Labour shift puts it firmly on the side of business and challenges the government to go still further along the road to pragmatism".

Of course, if the transition becomes the end game, then it isn't a transition. But, there again, to define its transition, Labour must spell out the relationship it wants once the transition is over. In fact, the Article 50 process demands that a framework is established.

Never mind, though, in the view of the Financial Times, Labour's proposal "gives both parties, and both Remainers and Brexiters, a firm and realistic platform on which to build". For sure, the gnomes have stolen the underpants, and they're set to make a profit. It's the bit in the middle that's missing.

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