As the door shuts on the first phase of departure talks, EU leaders have declared six rigid parameters for second-phase talks that could prove to be an even tighter squeeze for Brexiters itching to take back control next year:



1) Prepare to give up all power

New European council guidelines spell out that if Theresa May wants her two-year implementation phase after Brexit in March 2019 she has to be prepared to give up all power to shape her environment. Not only will the UK have to abide by all existing Brussels rules – the “whole of the EU acquis” – it will also have to accept any new changes and give up the right to influence them: “The UK, as a third country, will no longer participate in or nominate or elect members of the EU institutions, nor participate in the decision-making of the EU institutions, nor participate in the decision-making of the union bodies, offices or agencies.” A bind that one official privately suggests would be as constrictive as spending the transition in a gimp suit will be far worse than the vassal state situation feared in a Norway-style soft Brexit; this leaves Britain as an entirely captive supplicant until at least April 2021.

2) No wriggle room for Davis

The next lesson from Friday’s council meeting is that there is no going back. “Negotiations in the second phase can only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible,” reads the revised guideline. Dubbed the “David Davis clause” by EU parliamentarians, this language was inserted after the Brexit secretary appeared to imply last Sunday that the concessions agreed by May in phase one were merely a “statement of intent” rather than legally binding. If that is what he meant – he quickly reversed his position the next day – it has proved counterproductive, merely prompting the EU27 to tighten the leash instead.

3) Gove may have to wait

Both sides are reluctant to explore alternative ways of managing the transition phase because negotiating the terms of purgatory will only reduce the time left to discuss the more important end-state solution. Nonetheless, many in the UK were hoping there might be a bit more room for manoeuvre than this. The environment secretary, Michael Gove, for example, had claimed Britain would immediately be able to take back control of its territorial waters and fishing rights by leaving the common fisheries policy. EU insistence on a full status quo during transition suggests this will be a struggle. “All existing regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will … apply, including the competence of the court of justice of the European Union,” it says.

4) Fox will have to wait

The language is even more unequivocal on the subject of how much freedom the UK will have to pursue an independent trade policy during the two years after Brexit. “As the UK will continue to participate in the customs union and the single market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariffs and collect EU customs duties,” insist the guidelines. The trade secretary, Liam Fox, can of course talk to other countries, as he is trying to now, but any trade deals cannot come into force until after April 2021. To make matters worse, many countries such as the US have privately warned the UK that they wish to see the shape of any UK/EU trade agreements before deciding how valuable it will be to access a market potentially cut off from its main commercial partner.

5) Robbins will have to wait

Yet EU trade talks remain a long way off too. Though Donald Tusk has said “exploratory contact” can begin in the new year, the commission president, Jean-Claude Juncker, is adamant that proper talks on Britain’s long-term future relationship with the EU cannot start until after March when both sides have finalised what they want. While it may not stop UK negotiators such as Olly Robbins having informal contact, the commission is in charge on such matters. Its officials believe the best that can be hoped for is a few months striking a “bare bones” outline agreement by October, far from the full free trade deal May has promised.

6) This may still not be long enough

Worse still, while everyone agrees the transition phase should be “time limited”, Juncker says he cannot predict when the process of finalising a full trade deal will be complete. Many neutral observers agree with the commission’s view that only the most basic of trade deals can be negotiated and ratified during the two years proposed as a transition phase. Blame appears to be on both sides. Brussels officials show little willingness to make life easy for May, partly to deter other countries from leaving and partly in the hope Britain may yet change its mind. But Downing Street has also delayed matters: first by holding an election before talking; then by missing its first deadline and now by not yet holding a cabinet meeting to discuss what Britain wants in the long run. Friday’s council guidelines conclude by demanding Britain urgently “provide further clarity”.