Committee For Exiting The EU Examines The Political Declaration

When the Committee examined the political declaration I asked about the transition period and negotiating a future relationship with the European Union, as well as the UK changing direction and going for an EEA-based Brexit.

Stephen Kinnock: We have established that the transition period will be an opportunity for the United Kingdom and the European Union to turn the 20 pages of the political declaration that we will have by the end of the summit on 25 November into 1,600 pages by 31 December 2020. First, is it not an absolute pipedream to believe that it is possible to turn a political declaration of 20 pages, on 25 November, now, into an international treaty of that detail and importance, particularly given that next year will be a year of tremendous institutional and political change in Brussels? Can you give me your overall assessment of the extent to which that is realistic, or is it just fantasy politics?

Dr Hestermeyer: Looking at the normal length that trade negotiations go through, I have always favoured a possibility to extend the transition period and I am happy that it is in there now, because I think it is a pipedream to do it within the original period. I also have to confess that I am impressed by how quickly they negotiated a whole UK customs union, which none of us would have thought possible either, quite frankly. If there is enough pressure, speed can work. I have read that the UK is trying to convince the EU to pass a mandate rather quickly on doing the negotiations. I would urge the Government to do that and get that out of the way before politics take over in the EU so that, at some level, negotiations can continue to work. Within the extended timeframe it is still tough, but my hope is that it would be possible to get at least the main things done.

Agata Gostynska Jakubowska: My sense is that it would be a tall order to negotiate the future relationship in 20 months. It is rather unlikely. In fact, at some point I found an official EU guide to international negotiations that said reaching a final agreement usually takes several years. We know that, and it involves over 30 stages from getting Council’s authorisation to entering into force. Knowing that the EU’s procedural machinery also takes time to get to speed, it is rather ambitious.

Stephen Kinnock: There is a strong consensus that an extension to the transition period will be required. That decision has to be made and finalised by June 2020, does it not?

Agata Gostynska Jakubowska: It is July.

Dr Hestermeyer: I think it is July.

Stephen Kinnock: Would it be accurate to say that the cliff edge we face to get these negotiations finalised as a third country, under article 218, could well be in June 2020, not December 2020, assuming that an extension to the transition period is going to be required and that decision, according to the withdrawal agreement, has to be made by June or July 2020?

Professor Dehousse: This is the qualification of “cliff edge”. We have seen what has happened in the negotiation for the withdrawal agreement, meaning that it was blocked for a long time due to factors I am not going to cover here. The perspective was not clear from the beginning. If we already have a mandate, if we already have functioning institutions and the beginning of negotiations, if the UK and the EU know what they want from day one, you can do a lot of things.

You must also keep in mind the possibility, which we have used in the past, for example for the coming eastern countries and more recently for Ukraine, to cut a path to the core of the agreement, which is trade, and push it directly. This could also be done if there is a worry at the time. It is a huge endeavour, but sometimes the machine can go quickly if both partners clearly know what they want. You still have this option of disconnecting parts of the deal. You are right; it will not be a cliff edge in July. There will need to be a clear perspective, if you do not have the extension, of how to use the remaining time.

Stephen Kinnock: Can you give an assessment of the extent to which the negotiating time would be truncated if there were to be a shift in negotiating objectives towards a European Economic Area Norway style deal? How long would that take to negotiate during a transition period compared to some kind of bespoke deal, Canada plus a backstop or all these other options for the negotiating objectives? If the UK and the EU were to change the political declaration, for example, to explicitly commit to the European Economic Area as the destination, would it be realistic to expect that that could be negotiated relatively easily, well before December 2020?

Professor Dehousse: I believe so, yes, because you already have a defined model. If you want to make something bespoke, it takes longer. You can simplify this because we have a magnificent catalogue of external agreements. There is huge experience and a huge body, if there is the political will. You spoke yourself of this EEA model, but Canada is also a model and Ukraine is also a model. You already have a lot of things. You know the material. The EU and the UK are not very far apart at the beginning so, if you want to cut through this jungle, it is possible.

Nonetheless, if someone decided to add an option after the backstop and the whole customs union, it would be possible. The fact is that the system of the EEA is already well known and is a collective one. It has much more practice, because most of the deep trade co operation agreements we have now have not functioned for a lot of years. You see the example of Ukraine, Japan, Singapore, et cetera. In the EEA, you already have the core, the institutional buildings and the list of directives. From a legal point of view, it simplifies your life a lot.

Agata Gostynska Jakubowska: It is important to make this distinction. In theory, yes, having a template makes your life easier, but there will be some political constraints, as in all negotiations. In the European Economic Area, we sometimes forget about the non EU partners that will want to have a say. Norway will not be the big fish in the pond any longer. I do not know why I am referring to fish, but it is just to say there will be some political constraints and pressure.
Dr Hestermeyer: The customs union will be an additional thing to discuss at that stage, because that is the single market, but it would not resolve the customs union bit.

Stephen Kinnock: You would require a derogation from EFTA to have a customs union while joining the EEA through the EFTA pillar. In your legal opinion, that would be possible.

Dr Hestermeyer: This is all feasible, particularly if we change the dialogue to a positive one. It would be difficult if we were to say, “EFTA, but just for a little bit, because nobody quite likes EFTA”. Then it would be difficult to convince Norway. It would be far easier if we say, “We envisage this as our new home. We realise we will be the biggest person living in this house and it will need to be refitted, to some extent, but we can make it better for anyone”. If that is the positive agenda, this should be possible within the timeframe.