Brexit: a key to the impasse?

25/04/2019

Well, we can remove another item from the list of distractions that are keeping the media and the politicians from focusing on Brexit. There is not going to be a Tory leadership contest this summer. The 1922 Committee has refused to change the rules so Mrs May remains protected from a leadership challenge until December.

This is just as well. The very last thing we need at the moment is a messy (or any) leadership contest, especially as one outcome might have been the election of the former foreign secretary. To put Mr Johnson at the helm would set the seal on our decadence as a nation, making us more of a laughing-stock than we already are.

Even then, the fact that a rule change was mooted, as a desperate attempt to break the Brexit impasse, with MPs ducking out at the last minute, hasn't done the Conservative Party any good. It further demonstrates an inherent weakness of resolve which is hardly ameliorated by the Committee's demand that the prime minister should set out her plans for stepping aside, if parliament fails to back her deal in the coming weeks.

That leaves the European elections as the other mighty distraction, with scarcely enough time for Mrs May to seal the deal in parliament, before the 23 May deadline. Perhaps the prospect of humiliation for the party at those elections might focus minds, but even then there is still no indication that there is anywhere near a majority if it came to a vote.

Oddly enough, not a great deal is being said about next week's local elections – traditionally a measure of the nation's temper, although some canvassers seem to be having a hard time out in the streets.

Dissatisfaction with the handling of Brexit is spilling over into the local arenas, even though there are plenty of local issues to address, not least above-inflation rises in Council Tax, coupled with a steady deterioration in local services. Labour is expected to improve its standing but, somehow, no-one seems to care that much – another indicator of the poor health of our democracy.

As to the more substantive issues associated with Brexit, commentary on these seems largely to have disappeared. There is the occasional reference to the permanent customs union, which is part of Labour's package, but there is hardly any technical discussion of the issues, serious or otherwise. Personality politics is dominating the field, complete with a ritual demand from Sturgeon for another Scottish independence referendum.

In fairness, it is very hard to pinpoint areas for discussion, while the impasse remains. We are where we have been for many months – awaiting the ratification of the Withdrawal Agreement before we can move on to the next phase of the Brexit process.

What could help is the identification of a workable strategy which could ensure that the backstop never came into force – which was what Boles and Kinnock, et al were trying to do with their ill-fated Common Market 2.0 plan. Now that this has failed to attract parliamentary support – rightly so, even if for the wrong reasons – this has left something of a vacuum.

As it stands, the draft political declaration is of little help, lacking as it does any detail as to how a future framework would operate. On a purely technical level, if all we are seeking is a "comprehensive partnership", which encompasses "a free trade area as well as wider sectoral cooperation where it is in the mutual interest of both Parties", that will not be sufficient to prevent the backstop kicking in.

The issue here is that, while the declaration accepts that there should be "a level playing field for open and fair competition", and the partnership "should facilitate trade and investment between the Parties", there is the limiting caveat that this is only required "to the extent possible".

This is further limited by the commitment only to "respect the integrity of the Union's Single Market and the Customs Union" - as well as the United Kingdom's internal market. That woolly phrasing does not automatically (or at all) encompass conformity with the EU's "regulatory ecosystem", which would be a necessary requirement in order to secure frictionless, cross-border trade.

From a political perspective, if Mrs May could demonstrate, with confidence, that there is the basis of a working partnership that could resolve outstanding issues, that could address many of the concerns which are preventing MPs from ratifying the Withdrawal Agreement.

But, for this to happen, it would not only have to remove the need for the backstop, it would have to give the UK the trading terms it needed while also honouring the UK's red lines, specifically on removing unrestricted freedom of movement, and taking us out of the jurisdiction of the ECJ.

The trouble is that by far the best option remains an enhanced Efta/EEA model, but the likes of Boles have made such a botch of it that it has opened the way for the Menon circle to put the boot in. Now, anything with "Norway" attached to it is so toxic that it will probably never get off the ground, especially with every Tom, Dick and Harry adding their ha'porth on Article 112.

However, when we first wrote Flexcit, I did anticipate problems in getting the Norway option adopted, and came up with the idea of a "shadow EEA". This incorporated the bones of the EEA Agreement but in the form of a separate bilateral agreement between the UK and the EU.

In many respects, this is a thoroughly unsatisfactory arrangement for all concerned, as it requires duplicating the institutional arrangements that are currently implemented under the aegis of Efta. It would also require provisions to ensure automaticity of adoption, when it came to new EU legislation which came within the framework of the agreement, plus an appeals system on the lines of the Efta court.

On the other hand, the lack of co-decision in the original EEA Agreement constitutes a major weakness, creating a significant democratic deficit – even if there are ways of redressing the imbalance. A new arrangement between the EU and the UK could go back to the original Delors concept of houses in a "European village", each with equal status and rights.

Nevertheless, any specific arrangement between the EU and the UK suggests duplication and an additional administrative burden for the EU – which is precisely what it wants to avoid. One of its long-term policy objectives has been to rationalise its neighbourhood policy, reducing the number of bespoke agreements and simplifying the relationships.

Thus, if we stand back from the overarching negativity attendant on Brexit, there is the essence of a common cause, where we could cooperate with the EU in jointly developing a portmanteau relationship which could apply not only to the UK but other third countries which border on the EU.

Spasmodically, I have been working on such a concept, which I am provisionally calling the European Partnership Agreement, although any name would do, as long as the parties were happy with it.

Looking to a greater global dimension, I am very keen for UNECE to play a greater role, even though I am aware that even to mention this UN regional body in some circles is to invite the red rag to the bull response. It really is quite extraordinary how passionate the naysayers and critics become when they are confronted by something outside their comfort zones.

This is where we could really do with a free-thinking academic community, which was able to take on a broad range of ideas and discuss them intelligently. But instead of originality and imagination, the default value of academics seems to be "sneer mode", as they protect their own backsides and deploy their "not invented here" responses. 

Thinking of the bigger picture though, UNECE is one of the few regional institutions equipped to deal with the growing demands of International Regulatory Cooperation (IRC), which already includes EU Member States, the United States and Canada, and the Russian Federation as members. It has vast potential as a forum for discussion and development, which is considerably under-exploited.

Crucially, as regards any final agreement, we should insist on the inclusion of safeguard measures, which are actually a component of many trade agreements, alongside waivers, about which I've written before. The limits of the knowledge of many pundits in this business possibly explain the negativity of so many pundits, so a widening of horizons wouldn't go amiss.

Without that, Mrs May is going to remain locked in her impasse, and we'll not be going anywhere in a hurry. But there is a key if we care to use it – although I rather fear that our political classes are so addicted to time-wasting and displacement activity that we'll still be no further forward when the shutters come down at the end of October.