The UK lays out its EU border hand

Richard Parry discusses the UK’s return to EU negotiating action. 
Despite holiday absences of European leaders, negotiations have been proceeding well in recent weeks and a joint statement has been issued. One side has conceded that any wishful thinking about the UK’s not leaving the EU and its related customs union and single market must be abandoned. The other has accepted that that the departure must be planned with the utmost care and that time must be taken to get it right. Initial non-membership will thus feel, and cost, little different from membership but for those who care about these distinctions free will would be restored. 
Philip Hammond and Liam Fox’s article in the Sunday Telegraph on 13 August 2017 marks an important moment in the definition of how the Conservative Party proposes to handle the aftermath of March 2019: ‘we are both clear that during this period the UK will be outside the single market and outside the customs union and will be a ‘third-country’ not party to EU treaties’. From that starting-point almost anything goes in terms of transitions, voluntary opting back-ins, payments and avoidance of obstacles. The operative date then becomes the 2022 UK General Election by which point all the temporary structures will have to be cleared away.
Such an approach does recapture some of the initiative by the UK side. According to taste, either the continuity of substance or the change of symbol can be emphasised. The paper on Northern Ireland of 16 August seems to be a stalking-horse for some of the customs union ideas of the previous day and an attempt to subvert the EU’s agreed negotiating strategy by seeking immediate engagement on customs issues. Resting on the mantra ‘nothing is agreed until everything is agreed’ the hope is that a minimalist view of ‘sufficient progress’ on ‘people, money and Ireland’ will force the UK customs proposals to be addressed in time to get them in place by Brexit date.  
The two papers seem intellectually confused (the Ireland paper in most respects being the more careful and detailed). The customs paper advances two long-term models of a ‘highly streamlined customs arrangement’ and a ‘new customs partnership’. The former’s degree of streamlining would be highly constrained by the absence of free movement rules. The latter seems to involve the UK’s acting as the EU’s customs agents for clearing goods destined for the EU and the paper poor-mouths it as an ‘innovative and untested approach’ (para 42) (although it seems to be corollary of the Ireland paper’s brusque dismissal (para 52) of any customs checks between Northern Ireland and Great Britain).  Neither model can be in place for 2019 and so the paper suggests a ‘new and time-limited customs union between the UK and the EU Customs Union, based on a shared external tariff and without customs processes and duties between the UK and the EU’ (para 48). It will walk and squawk like one but won’t be the one the UK will have left. 
The Hammond/Fox approach builds on Theresa May’s 2014 actions as Home Secretary when the UK made a block opt-out and selective opt-in when justice and home affairs co-operation were absorbed into EU institutions. The political principle seems to be that, as long as the opt-out is clear (in 2019, from the EU, single market and customs union) a voluntary opt-in of equivalent practical effect is acceptable. Both the logic and the acceptability of this seem highly dubious in the present negotiating context.      

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Richard Parry's picture
post by Richard Parry
University of Edinburgh
17th August 2017
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