EU Membership in all but name?

London4Europe Committee member and former senior civil servant Michael Romberg looks at some of the misleading terms – and Remainer fantasies – that are floating around. Time for clarity.

Right now we are IN

We have given notice to quit. But we are still IN, still full members and have all the rights and duties of members.

Most importantly, if we change our mind and withdraw our notice to Leave, we stay just as we are with all our opt-outs and rebates. That is because we have done nothing to remove them. A notice to quit is not quitting.

Brexit Day

29 March 2019. It could however be a different day for one of three reasons:

• The UK decides to Remain in the EU after all – so no Brexit Day at all - hurrah;
• The EU28 agree unanimously to extend the Article 50 negotiating period;
• The withdrawal agreement specifies a different (earlier or later) date.

It is easy to imagine that Brexit day might slip a couple of weeks; every plan slips. But it is hard to imagine it going beyond the date of the next European Parliament elections – the UK will not want a divisive and pointless election and the EU will not want MEPs who show up for a short time only. The elections are expected to take place in the period 23-26 May 2019.

Transition means we will be OUT

The transition period – or as Theresa May prefers the implementation period - starts immediately on Brexit day. Hard Leavers deride the transition as “Brexit in name only” or say that the UK will not really have left the EU or that we will be “EU members in all but name”.

Let’s be clear. After Brexit day the UK would be out of the EU. It would be a non-member, a third country. We would not have MEPs in the Parliament, Ministers would not sit on the Council of Ministers, there would not be a British Member of the Commission or judge on the ECJ.

The transition agreement is a deal between a third country and the EU about the relationship between them. In the transition period, many of the EU’s rules would still apply. But we would be out. Brexit would have happened.

Brexiters’ rhetoric expresses their disappointment with the terms of transition. But some Remainers seem to accept their views as fact. For example, Professor Grayling seems not to have grasped when the UK leaves the EU. He told the Stay or Go Conference on 19 March 2018: “I'm pretty confident as a result of [the transition deal] that the great Christmas present we're all going to get in 2020 is permanent continued membership of the EU.” Or Polly Toynbee looking to the next election and asking "Will we be out of the EU or still in transition?".

The end date for Transition

The end of the transition period is 31 December 2020. Apart from the Prime Minister, few people believe that that provides enough time to agree a whole new set of relationships with the EU.

There is no provision in the draft agreement for extending that time period. However, it would be possible to extend it if both parties agree.

Transition would be time-limited

Under EU law, agreements must be rooted in the treaties. Article 50 provides an acceptable basis for a transition agreement but not for a permanent arrangement. The EU could not, lawfully, keep on extending the transition indefinitely.

Politically, no UK government could keep extending the transition. Complaints from Leavers that we had not really left would be overwhelming.

Those Remainers who believe that the Norway plus transition deal could be an end state arrived at accidentally (as opposed to being a conscious decision on the nature of Brexit) are letting their hopes influence their forecasting.

Re-Entry would be difficult

If we wished to be in the EU after Brexit day we would have to join from outside. That is, we would be a new applicant and would have to go through the whole accession procedure.

In one sense, re-entry soon after we have left would be easy. We would have diverged little from the acquis, so convergence would be relatively simple.

Whether we would keep the opt-outs and the rebate would be a matter for negotiation. I find it easier to see them disappearing than being offered again.

Some Remainers – Professor Grayling again - point to the UK’s changing demographics: the largely Remain-voting young will replace the largely Brexit-voting old through normal demographic change in a way that would of itself reverse the referendum result by about 2020.

However, it is hard to believe that the politics are so benign. Once we leave, surely many Remainers will wish to give Brexit a go. It will be seen as an adventure, a unifying national project. To run back to the EU after just a few years would be seen as a national humiliation, an admission that after all we could not make it on our own. People will not want the upheaval of another big change or the divisions of a new decision.

So I see no chance of a majority for re-entry for decades after Brexit.

If we wish the UK to be in the EU, the time to change course is now, not after Brexit. We have seven months to stop Brexit.

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