Richard North, 22/10/2017  

It is perhaps beginning to dawn on a wider constituency that things aren't going too well with Brexit. But there's an awful long way to go before it is generally realised that we are going to be leaving the EU on the 29th March with no free trade agreement in the bag.

Readers of this blog know this to be the case, but Mrs May's latest statements still give the impression that she expects a deal to be ready for signature on Brexit day – hence her insistence on an implementation period.

Steadily, though, we're beginning to see some media commentators recognise the obvious. When we leave, we'll be working to the terms of what even the EU is calling a "transition" agreement. And the brighter ones in the media are coming to terms with the realisation that this agreement is going to be with us for quite a while – at least two years but probably longer.

Even this weekend, though, the bulk of the media is haring off on other matters and failing to give detailed (or even any) consideration to the nature of an agreement to which we may well be bound for several years. In fact, after the orgy of coverage during the week, the Sundays seem to be giving the EU something of a rest and are moving on to other things.

There's not a lot of point complaining about this because even if they were devoting their energies to the issue, much of what they would be writing would be wrong or misconceived. To that extent, we are better uninformed than perennially ill-informed.

The big change we have to contend with now is the European Council's "invitation" to the Council and the EU negotiating team "to start internal preparatory discussions" on the framework for the future relationship and on transitional arrangements.

Clearly, the media does not feel inclined to second-guess the nature and content of those preparatory discussions. Nor does it seem to recognise the danger in giving the EU a head start on these matters, leaving the UK to respond to EU views rather than taking the initiative.

And, while Mrs Merkel is prepared to concede that discussions on the future relationship will be complex – more so than has been appreciated – no one is suggesting that these so-called "transitional arrangements" may also be extremely complex and, therefore, time consuming to agree.

Many commentators now believe that we will be seeing a breakthrough in the phase one matters by December, leaving the way clear for the UK to join in the discussions. I don't for the life of me believe that an agreement will be concluded but if, for the sake of argument, there is some sort of rapprochement, then we need to be asking how we should be tackling phase two.

It is here that I've been giving considerable thought to our potential strategy and am coming to the conclusion that we should be prepared to abandon altogether any prospect of discussion about a free trade agreement.

That is not to say that there should be no action. Michel Barnier has already spoken of the need to conduct a scoping exercise and current practice for EU free trade agreements is for the parties to carry out a joint exercise. For the UK and the EU, this would be a sensible way forward.

What we could expect to see in December, therefore, is an agreement to appoint a joint working party, charged with carrying out a scoping study, allowing six months or so for the delivery of a preliminary report. That, at least, would give a basic outline to any future free trade agreement, and settle the issues which must be discussed – all in a conflict-free environment.

This would then leave the parties to concentrate on the transitional agreement. And I would hope that, once people are properly focused on it, they will realise that any arrangements agreed cannot be rolled into the Article 50 settlement, and must comprise a full-blown treaty.

While I have referred to the need for a treaty in previous posts, outside this blog I have not seen any reference to it – although that does not exclude the possibility that it is being discussed elsewhere. Such is the importance, though, that we would expect one or other of the select committees to be looking at it, and even some of the self-appointed "experts" in the legal fraternity.

What is evidently not appreciated is that the prospect of a transitional treaty has enormous implications for the negotiating timescale. Not only will we need unanimity, but we will have to allow time for ratification and even, in some Member States, time for referendums.

If we allow at least six months for these processes (and that is cutting it fine), then we have only about nine months to define in detail, negotiate and get agreed a detailed transitional agreement – the contents of which could very well run to a thousand pages or more.

The reason for the length is quite simple. Unlike the EU treaties which give power to the central institutions to make laws which must be adopted by the parties – thereby extending the reach and scope of the treaties – any transitional agreement will most likely have to spell out in detail all the areas covered, without resort to separate, subordinate instruments.

In the nature of such treaties, there will also have to be provision for ongoing joint consultation, surveillance bodies and complaint and dispute procedures. Matters such as data sharing and lines of communication will also have to be settled.

But not only things like tariff and quota levels have to be covered, built into any discussions will have to be detailed technical agreements on a range of non-tariff barriers. For instance, even at this stage, we will need to be considering mutual recognition of conformity assessment over a wide range of sectors, just to allow the smooth flow of cross-border CE-marked goods.

With a modicum of good will, it might be possible to broker transfer arrangements for REACH certification, so that products registered in the UK can continue to be sold in EU Member States. We could also try for block transfer of market authorisation for medicinal products, thus keeping pharmaceutical companies in business.

Then there are such matters as mutual recognition of drivers' licences, block approval of the UK for the export of plant and animal products, and a carry-over of the Tripartite Agreement for the movements of racehorses between the UK, France and Ireland.

Unless there are to be huge gaps in our trading arrangements, it may well turn out that any transitional agreement will be a relatively close approximation to the final free trade agreement that will eventually be concluded – which indicates the degree of complexity we will be facing.

It also allows for a more flexible future strategy in that, rather than going for a "big bang" free trade agreement some time after we have left, we could end up at the same destination through progressive, incremental amendments to the transitional agreement. By this means, in a series of steps, we would be making the temporary into the permanent.

Much of this, of course, could be avoided if we remained in the EEA, and even at this late stage it is still not too late to approach Efta, to ask of its members whether they would accept an application from the UK to re-join. Failing that, there is the "shadow EEA" option set out in Flexcit, which would simplify matters and save a considerable amount of drafting time.

But there is more to it than this. Gradually, we are seeing boredom set in, as people tire of the complexities and the detail, and demand that more attention is given to the domestic agenda. There must also be a limit to the amount of time and resource that the EU is prepared to devote to Brexit.

In this latter area lies an advantage which is not to be discounted. The Efta/EEA option would bring the UK into the institutional structure of the EEA, with the facility for ongoing amendment of the Agreement, as a matter of routine.

If the UK and the EU Member States wanted to take Brexit off the top of the agenda, by far the best option would be to have the UK commit to remaining in the EEA, and taking a full part in the institutions. That way, we could build a new relationship without the current drama, and well away from the cliff edge.

Still, though, we get the "Ultras" and their fellow travellers argue that EEA membership is a form of second-class EU membership, yet these are the same people who would drive us into the "no deal" scenario, or accept a transitional agreement which is far worse than anything the EEA has to offer.

In this, maybe – just maybe – our best weapon is boredom. If MPs and the media want to get rid of Brexit, the best bet is to give it to the EEA institutions to sort out. Then our politico-media nexus can get back to their playtime and stop having to pretend they are interested in serious politics.

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