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Extending the Brexit transition period is harder than agreeing a Brexit deal

With 10 days to go until the end of the transition period, Maddy Thimont Jack warns that it is too late to extend the time to talk.

With 10 days to go until the end of the transition period, Maddy Thimont Jack warns that it is too late to extend the time to talk. Securing a deal is a more straightforward option for the prime minister

With just days left to before the clock runs out on Brexit negotiations, a new mutant strain of Covid is spreading through the UK and a growing number of countries are shutting their borders.

In response, numerous politicians have called for an extension to the Brexit transition period. But a late transition extension is legally complicated and involves details that take time to agree – time the UK no longer has. The government has repeatedly rejected calls to request an extension anyway, but it would struggle to find a way forward if it changed its mind. At this late stage compromising with the EU to get a deal is a far easier way to avoid what will be, however much the government insists otherwise, a chaotic no deal Brexit.

It is too late to extend the transition period

The withdrawal agreement contains a provision which would have allowed the two sides to extend the transition period by mutual agreement – provided a decision was made by 30 June. Back in the spring EU leaders appeared open to just such an extension to allow both the EU and UK to focus on the pandemic response – but UK ministers refused to countenance this option, despite the clear risk that the government would still be battling coronavirus at the end of the year.

It is now surely too late. Although there have been suggestions the two sides could amend the end date of the transition period within the withdrawal agreement itself – most lawyers agree that would be very difficult for the EU to do as the legal base Article 50 has expired. Even if smart lawyers in Brussels find a way forward, with ten days until the end of the transition period there is probably no time to agree the terms (including financial contributions) of such an extension.

Other options to secure more time look difficult politically and require EU goodwill

Back in May, the Institute for Government explored other options to secure more time, beyond June 2020. If the clock runs out but the two sides are close to a deal and keen to keep talking, then they could agree a new treaty to bridge any gap between the end of the transition period and a new deal coming into force. However, the terms of any such arrangement would still need to be hammered out – and process undertaken on both sides to ensure it had effect before the end of the year.

If an agreement seems unlikely to be reached, the UK could ask the EU to take further unilateral measures – in addition to the recently announced arrangements to keep trucks on the road and planes flying – to cushion the blow for business and buy more time for preparations. But this would require considerable goodwill on the EU part – which is in short supply following the government’s plans to break international law earlier this year.

In either scenario, both sides would need to be willing to make these arrangements work – and some kind of negotiation would be necessary. The timeframe available and the political reality makes both options look increasingly difficult.

Johnson has backed himself into a corner by refusing to extend the transition period

The UK appears to have miscalculated. Ministers could have decided to extend the transition period back in May – buying more time both for the negotiations, or, if talks broke down, for no deal preparations. At the very least, it would have meant the UK would not leave the transition period when an increase in Covid cases were likely and bad weather expected. But the option to extend the transition period, even if the prime minister wanted to, now looks impossibly narrow. Lord Frost may have hoped going down to the wire in the talks would have forced the EU to cave, but recent events may mean it is the UK that compromises first.

A deal will not remove the disruption that will follow the UK's decision to leave the single market and customs union, nor make up for a failure to adequately prepare for this eventuality. However, an agreement with the EU could include easements to facilitate trade at the border and phase-in periods for specific requirements such as proof of compliance with rules of origin – a key ask from business. The government should tell the public that no deal, at least in the short term, is a more painful choice and be straight about what it would mean on 1 January – instead of insisting again, as Boris Johnson did today, that the UK would ‘prosper mightily’ if talks collapse.

If the prime minister wants the country to avoid the inevitable chaos of an acrimonious no-deal Brexit in the midst of a pandemic hit by a new, more transmissible, strain, then compromising in the negotiations looks like his only choice. Whether agreeing to a deal ends up being a choice he regrets in the future is a risk he will be taking.

Topic
Brexit
Administration
Johnson government
Public figures
Boris Johnson
Publisher
Institute for Government

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