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Getting Brexit Started – Does the General Election Result Change Johnson’s EU Strategy?

Now that Boris Johnson will be leading a government with a sizeable majority in the House of Commons, some degree of normality will return to British politics. That normality is that governments get to govern with little capacity for the Westminster Parliament to block the will of the Executive. Whatever happens on the Opposition side – including the sizeable block of Scottish National Party MPs – nothing changes the fact that the Johnson Government now has, more or less, a free hand in both its domestic and European policy agendas. On Brexit, this has some interesting implications.

There has been some speculation that the political freedom the Prime Minister will enjoy will allow him to reveal his “true self” and to pursue a policy on Brexit that is less beholden to the extreme Eurosceptic elements in his own party. The argument then runs that we could be looking at a much less “hard” Brexit than the rhetoric might have suggested. For two reasons this assumption looks doubtful.

The first is that the idea that there is a different Boris Johnson waiting to be revealed doesn’t have an obvious basis. That he is prepared to adopt different positions to suit circumstances and to seek political advantage is a better characterisation of his pollical demeanour. That could, of course, mean that the Prime Minister might seek to adjust his Brexit strategy in light of the new political realities but that is not the same as the revelation of an intrinsic and authentic political credo hitherto constrained by prevailing political conditions.

The second reason for doubting a less “hard” Brexit is to do with the problematic characterisation of different choices as “hard” or “soft”. This language suggest a continuum of possibilities with positions hardening or softening. In reality, the choice the Prime Minister will have to make will be much more binary. It’s a choice between a loose “free trade” discipline in which a future EU-UK relationship will be better than World Trade Organisation terms but significantly reduced compared to those of EU membership, and a “free movement” discipline in which the future relationship entails a pre-commitment to regulatory alignment with the EU as a condition for maintaining market access on terms similar to those currently enjoyed. There seems little reason to believe that a Johnson Government will shift from a free trade approach to a free movement approach anytime soon.

The freedom of a working majority in the Commons will also mean that the Prime Minister should be able to re-introduce a Withdrawal Agreement Bill to implement in domestic law the agreement negotiated between the EU and the UK settling the terms of the UK’s withdrawal under Article 50 TEU. Indeed, what will be different this time round is that any attempt to tack on a requirement of a further referendum to approve the Withdrawal Agreement will fail if introduced in the Commons. Of course, the Bill could still encounter headwinds in the House of Lords but while the unelected chamber may express its views it will be unable to prevent the Commons from removing amendments with which it does not agree. All of which will set the stage for the EU and UK to complete the formalities and for the UK to formally withdraw from the European Union on 31 January 2020. But this is when the real work begins.

Far from the Prime Minister having an “oven-ready” Brexit, he barely has the recipe let alone the ingredients.

Even assuming that the Johnson premiership remains committed to doing a less complex trade deal, there will be much for the two sides to negotiate and resolve. Although it is often repeated that these negotiations are made easier by the perfect alignment of the EU and the UK at the point of withdrawal – a position that will be maintained during the transition period that follows withdrawal – that alignment might, paradoxically, make things more difficult. Because in any normal trade negotiations the parties are seeking to improve on the status quo and to upgrade their common interests beyond default international trade rules like those of the WTO. For the EU and the UK, the opposite applies. The trade relationship will be downgraded as the UK gives up market access in order to have greater trade and regulatory autonomy. And in areas like financial services there will be difficult tensions to be resolved. The size and importance of the City of London ought to put the UK in a strong bargaining position with the EU. Yet having gone through a financial and economic crisis and having put in place stronger rules-based governance backed up by new regulatory bodies, the EU will be reluctant to concede to the UK powers of self-regulation unchecked by EU rules and institutions.

There is also a continuing time pressure. If time has shaped Brexit in respect of the process of withdrawal, then it continues to shape Brexit as negotiations on the future relationship get underway. The transition period that begins as soon as the UK leaves the EU is scheduled to end on 31 December 2020. This is the true “No Deal” cliff-edge moment because if there is no new treaty on the future relationship in place and in force on that date, then the EU and UK will default to WTO trade terms (subject to the application of the Protocol on Ireland and Northern Ireland). On the UK side, provided a deal can be done, we ought not to expect too many difficulties in obtaining domestic legislative approval given the size of the Government’s majority in the Commons. However, the EU side may be more difficult as it may be harder to maintain political unity as diverse political and economic interests of EU Member States are revealed and if a negotiated agreement requires domestic approval in all the other EU states (something that was not required for the Article 50 withdrawal agreement). Getting everything in place in one year looks ambitious when we reflect on the problems of the last two and half years.

The EU and the UK have the option to extend the transition period by one or two years. But that option is a one-time option and it must be exercised by 1 July 2020. Throughout the election campaign, the Prime Minister and other senior ministers repeated that they would not seek to exercise that option. This is perhaps one area where the Prime Minister may feel he now has the political capital to change his mind but that may not happen until the last moment with the PM preferring the pressure of time to focus minds and accelerate progress on the negotiations.

So not only is there not an over-ready Brexit, Brexit will not be “done” by 31 January 2020. The UK will no longer be a Member State but it will not have defined its future relationship with the EU and it will be in a period of transition in which the UK will be bound by EU rules till the end of the year. The Prime Minister may now be in a better position domestically to pursue a Brexit policy but he will now have to do the more difficult task of negotiating and delivering a Brexit deal whose impact on the UK economy is the key risk to his ability to deliver on all his other promises including on the National Health Service.

Getting Brexit Done turns out to be Getting Brexit Started.