Britain prepares for a softer Brexit

27 June 2017

Britain’s general election has increased the chances of a ‘softer’ Brexit. But what would a softer Brexit look like? And could it include a customs union with the EU?

Theresa May’s first government was committed to a hard Brexit, meaning one that prioritised sovereignty at the expense of close economic ties. She said that she would exclude the European Court of Justice (ECJ) from post-Brexit Britain; she implied that she wanted the number of EU immigrants to fall significantly; and she argued for Britain to leave both the customs union and the single market. But the election took away May’s majority, greatly weakening her, and the new Parliament seems unlikely to pass the legislation required for a hard Brexit. This article examines whether a softer form of Brexit is feasible and considers what it could look like.

Since the election, May and David Davis, her secretary of state for leaving the EU, have said that they are sticking to existing plans for Brexit. Nevertheless just a handful of pro-EU Conservative MPs could defeat the government, if they joined forces with the opposition, most of which wants a softer Brexit. On June 21st the Queen outlined eight pieces of legislation that Brexit would require over the next two years, covering trade, customs arrangements, international sanctions, nuclear safety, agriculture, fisheries and immigration, as well as the ‘repeal bill’ which will transform existing EU rules into British law. It seems implausible to suppose that all that can be passed unless the government softens its stance.

Negotiations between Davis and his opposite number representing the EU, Michel Barnier, began on June 19th. The first few months will focus on the legal separation set out in Article 50 – notably the rights of EU citizens in Britain and vice versa, the UK’s financial obligations and the Irish border – rather than the future relationship. This gives the government several months to rethink its approach to the future economic relationship. Whatever May and Davis are saying in public, Brexit policy is in fact in flux.

The coalition of forces pushing for a softer Brexit is considerable. Business lobbies note that they have more access to senior figures in the government than they did before the election, and they are exploiting that opportunity to push for a rethink. The Treasury, long an advocate of retaining close economic ties to the EU, is newly emboldened. Before the election, Chancellor Philip Hammond was expecting the sack, but the weakness of the prime minister means that he is now unsackable, and he is making a strong case for a business-friendly Brexit. The Scottish Tories, led by the feisty Ruth Davidson, want a softer Brexit, as do the Scottish and Welsh administrations and – in certain respects – Northern Ireland’s Democratic Unionist Party, on whose support May depends.

The Labour Party, in a stronger position since winning 40 per cent of the votes in the election, is calling for a softer Brexit, though it is divided over exactly what it wants. Keir Starmer, its Brexit spokesman, says that a UK-EU customs union should be considered, while other Labour MPs want to stay in the single market. Former Conservative leaders, such as John Major and William Hague, have called on the government to reach out to opposition leaders to work out a national strategy for Brexit (as has the Archbishop of Canterbury). Influential Conservative columnists – including the Telegraph’s Ambrose Evans-Pritchard, Jeremy Warner, Juliet Samuel and Allister Heath – have called for various versions of a softer Brexit. Even passionate Leavers such as Michael Gove, who has rejoined the cabinet as environment secretary, and Steve Baker, who has become junior minister for Brexit, have suggested rethinking Brexit strategy.

Yet May persists in saying that nothing needs to change. Many eurosceptic Conservative MPs are backing her as their best hope of achieving the hard Brexit they desire. Some of them are letting it be known that, if she softens, they will trigger a leadership contest. Their willingness to bully opponents – reinforced by the power of the eurosceptic press – has worked in the past and they seem confident that it will work again.

In the short term, the easiest thing for May to do is to press ahead with the Brexit that her right wing desires. But that is probably not sustainable in the long term. If she wants to avoid parliamentary defeats she will need to collaborate with Labour and other opposition MPs. As Yvette Cooper, a senior Labour figure, has suggested, May should establish some sort of parliamentary framework in which government and opposition politicians can hammer out common objectives and a broad approach to Brexit strategy. It would then be up to the government to deliver on that strategy, before reporting back to Parliament.

At the moment it seems hard to imagine that May could commit to such a volte-face. She would have to alienate a hard core of Conservative Brexiteers, and risk splitting her party. May may also be deterred by the difficulty of working with the Labour Party. Some Labour leaders would be reluctant to help the government, when its collapse could trigger another election. But others see an opportunity to split the Tories and gain credibility with the public by being seen to act responsibly in the national interest.

In any case, if May doesn’t reinvent herself as a soft-Brexiteer, she is likely to be defeated in Parliament. Although talking to Labour about Brexit strategy would alienate her right wing, many Conservatives would probably back such a move. They want Brexit rather than any particular version of it, and know that if the government falls the result could be an election that brings Jeremy Corbyn to power.

If May cannot bring herself to work with the opposition, and she falls, her successor will find that survival means working with the opposition to achieve a softer version of Brexit. But what could a soft Brexit look like?

Staying in the single market, perhaps along the lines of Norway in the European Economic Area (EEA), is unlikely. The EU would insist on free movement of labour – a price that a majority of Conservative and Labour MPs would not want to pay. Nor would other aspects of the EEA – making substantial payments to the EU budget, accepting (indirectly) the adjudication of the European Court of Justice and adopting all EU single market rules without having a vote on them – appeal to many MPs. British politicians keep imagining that the EU is about to drop its insistence on free movement as the price for membership of the single market, but there is scant evidence for this. Others argue that Articles 112, 113 and 114 of the EEA agreement enable its members to restrict free movement. In practice that is untrue: Norway has never wanted to use these clauses since the EU would then have the right to retaliate by restricting trade. So unless the British public abandons its hostility to unrestricted EU migration, there is little chance of Parliament voting to stay in the single market.

But that is a question for the long term. A softer Brexit will mean a serious transitional phase, to cover the years that will elapse between when the UK leaves the EU and when its future free trade agreement (FTA) takes effect. Before the election, May was reluctant to commit to a transition, believing (bizarrely) that the FTA could be negotiated in less than two years; she merely agreed to an ‘implementation phase’, while the provisions of the FTA were being phased in. But the Treasury, spurred on by business leaders, is now pushing hard for a proper transition, and it is winning the argument.

The transition will probably look rather like the EEA (but would not be the EEA, since for the UK to remain in the EEA once it had left the EU, it would have to accede to the EFTA treaty). The Treasury hopes that the 27 will tweak the transitional arrangements to make them a bit more palatable to the British than the EEA. In particular, might the EU grant the UK an emergency brake that really could be used against a sudden influx of EU migrants?

As for the longer-term relationship, a softer Brexit could mean some combination of four things. One would be to introduce only modest curbs on free movement. The controls will probably be softer than those initially envisaged by May and her recently-sacked chief adviser, Nick Timothy. This is because many leading Leavers – including David Davis, Foreign Secretary Boris Johnson and International Trade Secretary Liam Fox – advocate only limited restrictions on migration. Access to EU labour is probably the number one concern of businesses in the UK; the Treasury, representing their views, may well win much of the argument.

The second characteristic of a softer Brexit would be staying in some EU regulatory agencies – certainly in the transition, and possibly in the long term. The Confederation of British Industry has identified 34 key agencies covering agriculture, energy, transport and communications. Britain will have to either stay in these or create new bodies. The European Aviation Safety Agency, for example, authorises British aircraft to fly. The European Medicines Agency advises the European Commission on which drugs should be licensed for sale across the EU. Euratom regulates the trade of nuclear materials. The European Securities and Markets Authority oversees the regulation of securities markets – and so on. Setting up new agencies, or expanding existing national ones would be expensive and time-consuming. Does it really make sense for the UK to build up its Civil Aviation Authority into a full aviation safety agency, when EASA works perfectly well? Yet if it wishes to stay in EU agencies it will have to submit itself to the jurisdiction of the European Court of Justice, as do, for example, the non-EU members of EASA.

Indeed, the third characteristic of a softer Brexit would be a less dogmatic rejection of any role for the ECJ. If May continues to make this an indelible red line, she will severely limit the scope of the agreements that cover the future relationship. Thus if (as its airlines hope) the UK wants to stay in the single market for aviation, it will have to accept ECJ rulings, as do Norway and Iceland. The same dilemma applies to many other areas, like financial services, electricity, data flows and security co-operation.

The EFTA court, which polices single market rules in the non-EU members of the EEA, could offer a possible way forward. If a new court to adjudicate on disputes between the UK and the EU were modelled on the EFTA court, it would include British judges, broadly respect the rulings of the ECJ and have the freedom to develop its own jurisprudence where the Luxembourg court had not ruled or not ruled recently. The EU’s governments and institutions could live with that kind of compromise – if the UK could swallow it.

The fourth and most controversial aspect of a softer Brexit would involve a customs union between the UK and the EU. Britain will have to leave the customs union of the EU, but could, like Turkey, create a customs union with the EU’s customs union. That would mean maintaining the common external tariff and accepting any changes made to it by the EU. Goods would then move easily across frontiers, as today, without the need for checks to see that tariffs had been paid, rules of origin respected or customs forms filled in. This would be hugely beneficial to firms that use just-in-time systems, notably those making cars and aircraft, and many retailers; to small businesses that have grown used to exporting to the EU without any paperwork; and to farmers who need to move food across frontiers speedily.

Britain should continue to benefit from the 50-odd FTAs that the EU has negotiated with other countries (though concerning the EU’s future FTAs, the UK would have to ask for special arrangements so that it was included; given the size of the UK economy, both the EU and the third country concerned would probably want to include the British). One major dividend of an EU-UK customs union would be to obviate the need to re-establish a hard border between Northern Ireland and the Republic of Ireland; without a customs union, it is hard to see how border controls of some sort can be avoided.

If Britain opted for a customs union, it would have to sign mutual recognition agreements with the EU, in order to avoid border checks for compliance with EU standards. But an FTA between the EU and the UK would in any case require Britain to agree to EU standards. An EU-UK customs union would have to have a dispute settlement mechanism, but this need not involve the ECJ (to all intents and purposes, the ECJ plays no role in the EU-Turkey customs union).

The main disadvantage of a customs union with the EU would be that Britain could not negotiate new FTAs covering goods with other countries (since customs unions do not cover services, Fox would be free to negotiate services agreements with other countries). Many eurosceptics, including Johnson and Fox, have honed a narrative about ‘global Britain’, in which FTAs with ‘Anglosphere’ and BRICS countries dynamise the British economy as it breaks free from the shackles of the moribund eurozone.

Though retaining a customs union with the EU would madden the Tory right, there is a strong macroeconomic case for doing so. According to the Treasury’s unpublished analysis, the economic benefits of future FTAs would be significantly less than the economic cost of leaving the customs union. (Monique Ebell at NIESR reached similar conclusions in research published in January. She estimated that if Britain had an FTA but no customs union with the EU, its total trade with the world would fall by 22 per cent; meanwhile new trade deals with the five BRICS countries, as well as the US, Canada, Australia and New Zealand, would boost British trade by 5 per cent.)

Furthermore, as the Treasury points out, the costs of leaving the customs union are immediate, while the benefits, via future FTAs, would not become visible for many years. That is why the transitional arrangements will almost certainly include a link to the EU’s customs union. As Hammond said in his recent Mansion House speech: “We’ll almost certainly need an implementation period, outside the customs union itself, but with current border arrangements remaining in place, until new long-term arrangements are up and running”. He has not yet risked war with the eurosceptics by stating in public that linking to the customs union is a long-term option, but in private he is reported to be in favour.

The shape of Brexit, of course, does not depend only on the UK. EU leaders want a deal, but believe they can insist on their terms, since no deal would damage the UK far more than the continent. They would be happy if the UK sought a softer Brexit, which would be less disruptive for their economies. But they will stick to their principles: the single market must include free movement of people and the jurisdiction of the ECJ; Britain must not ‘cherry-pick’ parts of the market, lest it undermine the EU’s institutional and legal coherence; and life outside the EU must be visibly less agreeable than membership. The EU will make it very clear that if the British want a softer Brexit, that is to say one that retains a lot of economic integration, they will have to give up sovereignty.

Charles Grant is director of the Centre for European Reform.


Charles Grant assumes that re-joining EFTA would be a block to Britain retaining EEA membership.

UK with others created EFTA in 1959/60 as an alternative to the then EEC. It thrives today, and there is every reason for UK to rejoin it if we re decided (as we seem to be) that we do not wish to remain in the EU. Norway's PM, Mrs Solberg, signalled clearly last August that she has dropped her former reservation about UK rejoining EFTA.

UK's negotiating position would be greatly strengthened if it was a continuing member of the EEA (there is no provision in the EEA agreement for UK to be kicked out) We know that some form of transition agreement will be needed in any case if a 'cliff edge' Brexit is to be avoided, since there is little if any chance that a free trade agreement can be concluded before UK leaves the EU at the end of March 2019. The default position in the absence of agreement with the EU is that we revert to trading on "WTO terms", an arrangement which the government admitted to the Select Committee it has not properly assessed.

So UK needs a transition agreement which can not only be agreed with Michel Barnier, but will not be vetoed by the European Parliament at the end of the process. Only EEA terms (broadly the Norway model) provides an accepted precedent which can be adopted at short notice in the middle of a negotiation.

As Charles hints (but does not say), some of the objections to EEA membership are ill-founded. In particular, disputes involving non-EU members of EEA are referred to the EFTA court and not to the European Court of Justice.

The continuing payment could be reduced in negotiation - if this were in line with Norway's per head, it would be about two-thirds of the UK's current net contribution, which is not in itself a large sum relatively speaking (despite the famous lies on the side of the big red bus). Current contributions amount to about 1% of government expenditure, and are about a quarter of the annual cost of interest on government debt.

of course UK government would have little more say in developing the relevant EU legislation we would need to comply with, but that is the case whether we negotiate a FTA from outside the EU (assuming that can be agreed) or trade as EEA members. Only about a quarter of EU legislation in the form of directives and regulations would have to be transposed directly into UK law , the rest could be dealt with as may be proposed under the Repeal Bill. The influence of Norway at official level in the initial stages of drawing up relevant EU legislation should not be under-estimated.

As to the emergency brake on freedom of movement of labour (article 112) which Charles refers to, that could be implemented without the need for approval by the European Commission. The problem, as he says, is that this might restrict UK access to the single market, even as an EEA member. Charles denies reports (including from direct contact) that it would be possible to negotiate any flexibility on this, but the only way to find that out is to put it back on the table for negotiation.

It was never a good strategy for David Davis to exclude from the negotiation what is clearly by some way the most favourable terms available (far more favourable in trade terms than any FTA, even if that could be negotiated in the time). Clearly as a minority government with its mandate for 'hard Brexit' called into doubt, Davis should have conceded this rather than pretend that it could be business as usual on Brexit negotiations despite the loss of the government majority.

It has always been the hard Remainers who have seen EEA membership as a problem. Many Brexiteers advocated just this relationship for many years, including during the referendum campaign. Of course it can never be as favourable a relationship as full membership of the EU, but once you accept that EU membership (and the political influence in Europe) is lost, it is by some distance the "least worst option" for leaving the EU.

Fortunately for the hard Brexiters in this government, it will prove difficult even with the reduced majority for the government to be forced to concede this, in part because so many who argued for remain have been unable or unwilling to adjust to the new reality and support the EEA option with any consistency.

If we do remain in the EEA, at least as part of a transition arrangement, then on trade with EU at least, we will live to fight another day. There is no widely agreed alternative, and those who fail to support this are effectively giving this "hard Brexit or no deal" government a free pass.

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