The Brexit deal could be improved

(This article was published online by the Telegraph online on 8 January 2019. As one of the few articles to engage in substance with possible improvements to the Withdrawal Agreement I am reposting without a paywall)

We are suffering from a severe case of repetition in the Brexit debate. Those rejecting the PM’s deal usually say that this is either why we need a no-deal Brexit, or another referendum, by which they mean stay in the EU. Neither of which have a Parliamentary majority. The PM is caught between seeking reassurances from the EU which seem unlikely to reassure, or removing the backstop, which would represent such a u-turn from the EU and Ireland that it seems spectacularly unlikely. Even business and those MPs who support the deal don’t have much positive to say about why beyond delivering the referendum or providing another couple of years of known trading conditions, given the more general uncertainties involved.

The Commission in turn say the deal can’t be renegotiated, but this really means they can’t wait any longer while we continue to delay. In reality changes could be made if backed by enough unity on the UK side. The EU doesn’t want no-deal either. As a former negotiator I see the following as achievable and moving the deal in the right direction.

A transition period with a rolling one year extension clause:

The Irish will not change their demands for some mechanism to ensure no border on the island of Ireland. But the backstop as defined has technical as well as political problems, not least in the numerous pages of regulations that will need to be followed in Northern Ireland but not the rest of the UK, which don’t appear to have been studied in detail by anyone, and are quite likely to cause problems in being defined. Far better to allow the transition period to be extendable across the whole period of negotiations.

Proper Scheduling for the next phase

One of the PM’s priorities in Brexit talks has been to show we are fully out of the EU and into a new relationship by the time of the next election in 2022. This will give three years for a trade agreement to be negotiated and implemented. Yet one of the reasons we wanted to leave the EU was that it can’t operate at such speed. So let’s be honest and admit this is likely to take longer, and put in place a proposed realistic schedule. Best experience suggests using 2019 as preparation, we could negotiate in the period 2020 – 2023, and be ready to implement 2024.

If the UK is going to have implement EU law it has to have EEA levels of consultation

Any transition period is going to involve the UK implementing EU law. As currently constituted the Withdrawal Agreement gives us no say in that, which is clearly unacceptable. Equally we can’t expect to have the same rights as EU members. Fortunately there is already precedent in this area, for countries in the European Economic Area such as Norway, to be consulted on relevant areas. The level of consultation will be less than now, but should be sufficient for a limited period of time.

A joint report on the Ireland border

No two countries who are not both members of the EU have borders without infrastructure. Technology can help, but the solutions that have been put forward for the Ireland border are not sufficient to prevent infrastructure for product and customs checks. Not surprisingly there is increased tension on the island about what may happen in months to come. There will need to be a joint agreement on what is acceptable, and a good first start to this would be for both sides to sponsor a comprehensive report on all of the options, to issue within a year of the Withdrawal Agreement. This is likely to lead to a process which over time leads to a mutually acceptable solution.

A break clause of 5 years

Negotiators expect ups and downs in talks, but that ultimately we can reach solutions. In the case of the UK-EU talks however the suspicions of some on both sides, notably the UK, must be acknowledged. Many MPs simply don’t trust the EU not to lock us in to a disadvantageous arrangement from which we cannot escape. Preparing to go from deep integration to no-deal in months is risking economic shock, and no developed country should be having a discussion about whether it can supply medicines. However there should be a way of terminating the agreement if talks really can’t progress, so why not a break clause where either side can give five years notice. That would be sufficient to allow for proper preparation.

Committee of MPs to oversee negotiations

For all we know the UK side has put forward all of these suggestions and been rebuffed. We know remarkably little about how negotiations progressed, and the secrecy hasn’t helped, not least as our negotiators haven’t been able to say “all parties want to see this”. This must change, not least as allowing MPs proper engagement will also bind them more to the outcome. However it is done MPs should oversee negotiations, coupled with much greater public engagement. Negotiations are not public sport, but in the 21st century they are coming close.

Change is possible

There will be objections to all of these proposals, and rightly so. This is about the future of the UK’s most significant relationship, and there is never going to be an easy answer. But it will be impossible to find an answer if we are split as a country, as we currently see. The current deal on the table is not a good one, so let’s try to improve it before pursuing alternatives. That at least can get us out of the circular argument we’re currently having.