The Labour government needs to address the unfinished Brexit business it inherited

Last week the Financial Times reported a list of eight outstanding obligations that EU Commission officials want the UK to implement before it is interested in embarking on talks about improving the relationship. ⁴ https://www.ft.com/content/43593399-6e31-4b9f-81ec-a06851938706  Those include the new commitments entered into on the Windsor Framework and dealing with the outstanding issues affecting EU citizens living in the UK, as well as resurrecting an ancient court case about free movement during the transition. But there are issues that the UK authorities should raise with the Commission too – not least on the problems some UK citizens in the EU will have proving their status once new checks come in. And the UK government also needs to look hard at the performance of the UK’s own post-Brexit operations. 

Labour committed to implementing the Windsor Framework in full, but committing is easier than doing

In its election manifesto Labour committed to implementing the Windsor Framework in full. But it may find that harder to do in practice. There are several upcoming commitments  for new government processes and for business adjustment to be in place and the Commission is clearly worried that the UK is behind on some of these. Moreover, with the upcoming consent vote on the Framework scheduled for December, the government will want to avoid anything that disrupts the flow of goods (or indeed pets) to Northern Ireland. 

The frustrating issue for Labour is the sequencing. If the EU proves willing to revive the idea of a sanitary and phytosanitary deal for the UK – something that Michel Barnier appeared willing to offer before – then many of the required changes which apply to agri-food goods and livestock would prove nugatory. If the EU insists on making full implementation a precondition for genuine negotiation, it could just be a waste of time and effort.

The Home Office needs to make outstanding decisions on EU citizens – but EU countries need to be held to account too

Many member states are concerned about the status of their citizens with settled or pre-settled status in the UK – issues which the Conservative government left to fester. Those with settled status remain concerned that their reliance on digital IDs leads to problems in renting property, getting employment or when they return to the UK and are keen to have a more permanent form of ID to show. But that would mean a change of policy direction from the Home Office which believes digital IDs are more secure. It would nonetheless be interesting to see if the new government gives EU citizens any new options here. 

The new home secretary, Yvette Cooper, also picks up an unresolved issue from her predecessor over the process for people upgrading from pre-settled status to settled status once they have met the five year qualifying period. The Home Office lost a court case over a proposal which could have seen a lot of citizens with pre-settled status lose it by failing to apply in a timely way. The reaction has been to give longer grace periods – but the Commission seems to want a process for automatic upgrades. 

That could be relatively easy for people in employment where HMRC data could show that they had maintained their UK residence. Whether the Home Office is prepared to concede something like that – and can find a way of helping others change status easily – remains to be seen. In any case it needs to put in place a permanent policy on pre-settled status while also addressing confusion over the rights of people with pre-settled status where the courts have come up with conflicting judgments. 

But the UK also needs to insist that the Commission itself takes action against member states who have failed to issue necessary documentation to UK citizens residing in the EU. There is no equivalent citizens’ rights oversight body in the EU playing the role that the Independent Monitoring Authority plays in the UK, leaving an enforcement gap.

There may be more of a political appetite for a reset than the Commission is judging

The story of the Brexit negotiations  was that the Commission was more flexible than the member states (a position the then UK government completely misjudged). But that may now be reversed. It is possible that Commission officials, jaded by the repeated failures of British governments to meet their commitments, have misjudged the appetite for a reset among the EU politicians – with whom the new government has actively engaged since its election win. In particular there does seem to be genuine enthusiasm among political leaders to see whether it is possible to add a security dimension to the relationship. 

But the UK government needs also to pay attention to domestic Brexit implementation

Nonetheless, the Commission’s view that the UK’s approach to implementing Brexit has been half-hearted applies also to thinking through the consequences for domestic regulators.  The last government was long on rhetoric on the opportunities that could be created by more flexible, nimble post-Brexit regulation. But the practice has turned out very differently, with funding and capability gaps leading to delays and additional burdens on business. That in turn has led the EU to question the quality of regulatory enforcement in the UK. This is an issue that the new government – unburdened by the grandiose promises of its predecessor – needs to address urgently.