For over a year, the government has sought to duck the question of what Brexit means. Theresa May’s famous response in July 2016 was that it means just that, “Brexit”. This was taken to be a short, sharp departure that “took back control” as soon as possible.
Over the last few days of this summer the government has slipped out a series of policy papers that hint at another explanation for what the prime minister wants Brexit to mean: as little as possible, as slowly as possible.
That at least is the conclusion of many EU experts who have studied the seven policy papers released between 15 and 24 August. These outline official UK thinking on matters such as customs, Northern Ireland, law, trading standards and electronic data. Although they only scratch at the surface of the issues that need to be negotiated, they bear a number of similarities that suggest the Brexit that Britain really seeks will be softer than expected but nonetheless brazen.
No deal would be very bad
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The team look at what kind of transition Britain wants, what might be in the government’s position papers and what size of divorce bill Brexiters are willing to pay
Unusually, all the papers contain lengthy paeans to existing EU regulation. Despite the referendum promise of cutting red tape, Whitehall has sounded positively wistful as it lists the benefits of harmonised trading standards and close co-operation between European courts. The corollary of this is that Theresa May’s pre-election threat to walk away from Brexit talks with no deal if she does not get what she wants is looking more hollow than ever.
Officials at one briefing even indulged journalists in some hypothetical speculation about the chaos that might reign if they cannot maintain regulatory harmony in future, conceding, for example, it would be “much more difficult” for parents to recover abducted children if international courts do not continue to work together. An extreme example, perhaps, but the tip of the iceberg according to the newly candid British government.
Europe needs rebranding
If imitation is the sincerest form of flattery, then the UK’s response ought to go down well in Brussels. Ministers propose a series of models that “mirror” the existing relationship as closely as possible. Just so long as it is not called the European Court of Justice, the UK appears open to the idea of ceding indirect control to an arbitration court or panel that performs a similar function.
In the case of the EU customs union, the name does not even have to change very much. Ministers propose leaving the customs union in March 2019 and entering into “a new and time-limited customs union” for an unspecified period of time while both sides work out how to keep all the advantages of the old system.
The red lines are blurring
Throughout this process, the government’s official position is that nothing has changed: Theresa May said Britain was escaping the jurisdiction of the ECJ, and it still will. In private, however, few deny that there has been an important change of nuance going on.
Ministers now talk of escaping the “direct” control of the ECJ, leaving open the unspoken assumption that “indirect” control could well continue through a new arbitration system. Individuals will have to go through UK courts to enforce grievance claims, but their national governments may still be able to escalate the odd test case to the level of international dispute mechanisms. If they uphold the claim, Britain may still have to bend.
There remains an important point of principle about whether UK courts are directly told what to do by Strasbourg or whether MPs get to pass the message along indirectly, but those red lines are getting awfully smudged.
Britain is seeking its own agenda
Despite howls of “betrayal” from the eurosceptic press, it would be wrong assume that Britain’s Brexit summer has all been about climbing down from hardline positions.
The Brexit secretary, David Davis, has also been engaged in a not-so-subtle attempt to upend a deal he struck with the EU’s chief negotiator, Michel Barnier, to talk about the EU divorce priorities first.
Whether they are able to get trade and customs back on the table formally before settling the divorce bill remains doubtful, but the Brits have at least got everyone talking about the bigger issues again.
By stressing how much everyone stands to lose if it goes wrong, Davis is a long way from May’s “no deal is better than a bad deal” threat, but he is nonetheless trying to reassert some British influence on the process.
A deal could be more likely
So far, it has not got very far. The UK proposals have been privately dismissed as a “fairy tale” by some EU diplomats.
Barnier has been scarcely less withering in public, sending out a series of tweets saying it was all very well and good issuing new papers, but the ones he wanted to discuss first were the ones that mattered.