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Brexit: The Government Is Making Promises It Can’t Keep

The last couple of weeks have seen a flurry of activity from the Department for Exiting the European Union (or DExEU). A total of seven position papers have been released, with five more expected before the European Council summit in October. They cover a variety of issues, from data protection and the Irish border question to the government’s position on the European Court of Justice.

We’ve been reading through these position papers to see what they tell us about Brexit negotiations and what our future relationship with the EU might look like, and there’s really only one conclusion: the government has tied themselves in knots with promises they can’t deliver. Here are three issues that aren’t going away:

The Irish Border

The future of the border between the Republic of Ireland and Northern Ireland is fundamental to our relationship with the EU - it will be our only land border with the EU after we leave.

The government’s position paper suggests that there will be no hard border in Ireland post-Brexit; this would be a good thing, not only for preserving the peace agreement in Northern Ireland, but to avoid the obvious issues involved in suddenly enforcing a border that people cross daily for work or to do their shopping.  

However, it also means the government has effectively accepted freedom of movement will have to continue, and raises more questions about our customs relationship with the EU than it answers. To maintain the borderless situation in Ireland, the UK would have to follow EU customs rules, despite stating that we will leave the customs union. The European Parliament’s lead Brexit negotiator has described the government’s plans as a “fantasy”.   

Immigration and freedom of movement

The government has already conceded that with an open border in Ireland, EU nationals will still be able to enter the UK without a visa.

Instead of new border checks, the government has proposed new immigration measures to check the status of people already in the UK – including checks in the welfare system.

Without the infrastructure in place to monitor immigration levels, and with visa free travel for EU nationals expected to continue post-Brexit, the government won’t be able to keep their promises on immigration.

Recently exposed discrepancies in immigration figures have demonstrated that the government certainly isn’t able to keep track of immigration at the moment. As home secretary, Theresa May repeatedly stated that the government would crack down on foreign students overstaying their visas, and claimed that almost 100,000 students a year were doing so. Now we know that the real number is less than 5,000.  

The European Court of Justice

The Conservatives have repeatedly stated that the UK won’t be under the jurisdiction of the European Court of Justice (ECJ). A key feature of the leave campaign was a promise to ‘take back control of our laws’, and that has been interpreted by the government to mean the ECJ will have no involvement in UK law or our dealings with the EU.

Unfortunately, this issue isn’t as simple as it first appears.  

EU negotiators have already made clear that they want the ECJ to be involved in protecting EU citizens’ rights post-Brexit, but beyond citizen’s rights, there are lots of agreements underpinned by the ECJ; these include agreements on electricity, nuclear power and aviation. Even Norway accepts ECJ rulings in these areas, despite not being a member of the EU, in order to access these markets.

The media has focused on the use of the phrase ‘direct jurisdiction’ in position papers as evidence that the government will soften their approach to the ECJ and accept its indirect involvement in our law, but yet again, we’ll have to wait and see.

Overall, it doesn’t look like the government are going to be able to deliver their promises on Brexit. With an October deadline looming for settling the terms of divorce, it’s hard to see how the government could make enough progress by then to start talking about a future agreement. With tensions running high on Brexit, the government is playing a dangerous game by making promises they can’t keep.