Transition is much-ignored in public and political debate, but it serves a number of important functions.
Firstly, it provides a legal underpinning to EU-UK relationship until a new legal document can be brought in to bring into effect the new, long-term ties.
As both a regulatory necessity and as a gesture of good faith, there needs to be something between the ‘here’ of membership and the ‘there’ of the new relationship.
But transition also provides a location for the negotiation of that future relationship between the EU and UK, as well as managing the on-going relationship between the two.
Seen this way, the practical logic of such a transition is clear, but it is not without a number of major challenges.
The first challenge of transition: legitimacy
Transition comes with a profound challenge to political and constitutional legitimacy. How can the two parties, which both profess to uphold democratic ideals of representation and accountability, operate a system wherein those ideals take, at best, a back-seat?
The challenge is clearly strong for the British side of the discussion. All of the obligations of membership extend into the transition, but not all of the rights.
Should the EU make a decision during this time that it would not have been able to if the UK could have voted, then how can a British government explain that to either Parliament or the general public?
The model does not allow for any generalised mechanism of exceptions or exemptions from the application of EU rules and decisions, so much would hang on the work of the Joint Committee and whatever dispute settlement mechanism that could be agreed.
In practice, if transition keeps to its planned length, then the issue might not be so grave.
The speed of EU decision-making, especially on major pieces of legislation, is slow enough that much of the output that might occur prior to the end of 2020 has already begun to wend its way through the system, so the UK is already shaping that agenda and detail of work.
Moreover, the commitment in the draft Withdrawal Agreement to consult the UK on matters of particular relevance and the more general habit of EU decision-making to avoid divisive outcomes in legislating potentially further soften the blow.
However, none of this can fully account for the inevitable uncertainty of what might come down the road.
It’s also important to note that the EU has never given a non-member state voting rights of any kind, even in its closest of relationships, and there is no reason to see that changing for the UK. Thus, no other model of transition will address this challenge.
The second challenge of transition: negotiation
Even within the draft transition model, negotiations on the future relationship will be complex.
The UK will be simultaneously applying and enforcing EU decisions and negotiating what are likely to be substantial areas where these would no longer apply in future.
The Joint Committee is intended to provide a means of addressing issues around the first part of this, but does not have an explicit mandate to connect that to the second part, despite the likelihood that the two will be profoundly interlinked.
Given that much of EU legislation relies on member states translating decisions into national legal frameworks, there are issues of both time and appropriateness.
This will be a dynamic relationship, with new issues constantly arising and needing action. As a result, there is the potential for problems in this arena to affect the negotiations on the future one.
In particular, the likely centrality of the Irish dimension and the potential for differentiated situations in the nations of the UK make this highly salient.
The third challenge of transition: extension
The most intractable challenge of the proposed transition relates to time.
As we have noted already, transition is designed to cover the period from one state of the relationship to another.
But from what we know so far, the time being allocated to agree what that future state should be does not appear to suffice. And, more importantly, there look to be legal and political obstacles to getting more time.
The future EU-UK relationship will be negotiated under Article 218 of the EU’s treaties, which relates to agreements with third states. In this, the EU has much experience and a recognised method of working.
That experience suggests that even limited agreements can take several years to negotiate, with more substantial ones taking substantially longer. Even just the ratification process – which would require unanimous approval by the EU27 – would be unlikely to take any less than one year to complete.
Add to this, the uncertainty that surrounds the exceptional nature of this particular negotiation – moving to a less close relationship – and the lack of a consensus view either within the UK or between the UK and EU about what the future relationship should look like, and it is very likely indeed that having a new arrangement fully in place by January 2021 could happen.
The draft transition model does not provide for extension of transition. This is explained by three factors. First, neither party want Brexit to drag on any longer than necessary.
Second, it fits the financial planning, as discussed above. Third, there is a legal question about whether transition can be extended at all.
There is no provision for transition at all in Article 50 and several legal scholars have suggested that while a short, fixed-term transition might be within the terms of that provision, any extension – be that a one-off or a more generalised mechanism – would risk creating a situation the infringes on other treaty provisions.
In particular, it would mean that the EU would have a de facto relationship with a third state, but not under the Article 218 provisions (which provide a different mechanism for being agreed).
Bound as it is, even if both the UK and EU had a material interest in extension, they could find themselves unable to do this, resulting in a situation that would be akin to a ‘no-deal’ outcome to Article 50, differing only in that it would occur at the end of 2020, rather than March 2019.
And because the UK would not be a member state in the run-up to that date, the range of political solutions would be more limited.
A final set of challenges would still remain even if extension could take place.
Firstly, it would take the UK into the next cycle of financial planning, in which it has played no role in negotiating. The EU intends to remove the budgetary rebate that the UK has used to moderate its contributions, so potentially the country would be paying substantially more than at present, for a set of policies that would necessarily reflect British priorities much less.
Secondly, the longer that transition lasts, the more difficult become the first two challenges already outlined. That raises ever more difficult questions for all involved about how justifiable the model is.
And finally, a longer extension – and especially an open-ended one – will risk leaving the UK-EU relationship in a limbo, where there is much less time pressure to advance on the negotiations on the future relationship.
That in turn will raise questions in the UK about whether it is an appropriate political response to the 2016 referendum, given what it involves.
While that might be a function of British political indecision, it will not change the reality of the situation, namely that this will have impacts on both the UK and the EU, as well as the continuing relationship.
By Dr Simon Usherwood, deputy director of The UK in a Changing Europe. This piece originally appeared in our report ‘The challenges of transition‘.
