On Chequers, Cherries and Cake
The politics of Brexit will forever be a greater barrier to the UK’s ambitions than the intricate legalities
Iain Duncan Smith once said that “cake exists to be eaten, and cherries exist to be picked”. This statement, as jocular as it was, was a stark approval of Theresa May’s third landmark speech on Brexit at Mansion House.
In the speech, the Prime Minister made ambitious proposals for goods and services respectively. For the former, a system of regulatory alignment so as to enable as frictionless trade as possible between the UK and the EU. For the latter, May suggested an arrangement based on mutual recognition where EU and UK law could achieve the same objective by different means.
A few months later, Chequers, the country residence of the Prime Minister, became the scene of an unbending mission by May to seek a collective unity amongst her cabinet colleagues over the UK’s post-Brexit relationship based on her Mansion House speech. Since this seminal meeting, Downing Street has sought to underplay the allegation of a significant and unsatisfactory shift in policy from Mansion House to Chequers, suggesting that the changes were merely an ‘evolution’ of the policies that preceded it.
The Chequers agreement, and the more expansive white paper that accompanies it, proposes that the UK maintains a “common rulebook” on goods in order to achieve “frictionless trade at the border”. For services, however, the UK proposed arrangements which were not so dependent on EU rules. Instead, the UK appears to be seeking an arrangement based on, among other things, WTO law and mutual recognition of professional qualifications only.
In essence, the UK appears to be seeking the free movement of goods but not of services, or of people. The obvious problem is this: is it achievable?
If one looks to the current negotiating stance of the EU, the answer would appear to be negative. They have insisted, since the beginning of the negotiations, that they were not prepared to let the UK “cherry pick” aspects of the single market that it wanted to participate in.
In the European Council’s guidelines for Brexit negotiations, it was made clear that in order to preserve the integrity of the single market, the UK as a non-member “that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member”. In other words, the four freedoms are stubbornly indivisible.
Accordingly, it would seem that the Chequers proposal crosses a major EU red line. Yet, if one looks beyond the statements made within the Brexit bubble, one can see that the integrity of the single market has not always been maintained.
It is evident from other agreements with non-member states that the EU has divided up the supposedly sacred four freedoms of the single market. Its agreement with Canada does not cover freedom of movement, for example. The more recent agreement concluded with Japan contains provisions for the free movement of goods, services and even data, but, again, freedom movement of people is absent.
One of the key objectives for the UK government in the negotiations is to take control of its borders and bring an end to free movement of people. Although, it is questionable as to whether this is something the government will seek in practice as the Chequers deal seems to propose a framework whereby UK and EU citizens could continue to travel to the respective countries and apply for study and work. It is thus perhaps more accurate to say that free movement ends in name only.
But even if the UK was to put forward a position where it was picking aspects of the single market it wanted to benefit from, any barrier to this would not necessarily be legal, as shown by past EU agreements with non-member states. Instead, any rejection by the EU of such cherry-picking would always be a political and tactical choice.
Yet, it is understandable on the EU’s part why it would reject such cherry-picking from the UK but be more lenient in formulating agreements with other countries.
With the likes of Canada, Japan and others, the process is one of convergence: a process of bringing down, brick-by-brick, the trade wall existing between the EU and third countries, then replacing it with a bridge to facilitate free trade and eventually align the rules of the respective territories.
Comparatively, Brexit was always a process of either tearing up the bridge between the UK and the EU and completely and starting again, with the WTO option being one option and a bespoke, free trade avenue being the other. Or there’s the suggestion of taking apart only certain parts of the bridge — a so-called ‘soft-Brexit’.
Even so, the UK government, given what the EU has agreed in the past, could have the kind of cherry-picked deal that it has sought since the beginning. But since the referendum, the UK government has struggled to put forward its proposals and come up with a negotiating stance to push it forward. Instead of this important work being completed much earlier in the Article 50 process, the Prime Minister held a general election that backfired, both for the Tories and Brexit.
As such, as the date for leaving officially comes closer, it will soon be realised that the UK will either be agreeing to a soft-Brexit, or failing to obtain any agreement at all. Unless the time for negotiations is somehow extended, the UK is, at this point, stuck.
The lesson here is a classic one: good policy takes not only time and careful thought, but also sound political navigation to see it through. It is the latter that is often most difficult, and it is where the UK government has failed the most.
Originally published at www.bbench.co.uk on September 16, 2018.