The UK and EU agree on a new Protocol. But will the House approve the agreement?

Yesterday morning, after a week-long negotiating marathon and only a few hours before the meeting of the European Council, the EU and the UK agreed on a withdrawal agreement that contains a modified Protocol on Ireland/Northern Ireland and agreed also on a new Political Declaration setting the framework for the future relationship between the EU and UK. The European Council approved both unanimously. So attention is now focused on tomorrow’s special session of the House of Commons, which may (or may not) approve the deal.

The sticking point in the prior version of the Protocol, which, with its nearly 150 pages of annexes, was 173 pages in length and was contained in the 599-page Withdrawal Agreement the EU and UK negotiated in 2018, was the Irish backstop – the provisions, in particular Article 6, which were meant to ensure that the border between Ireland and Northern Ireland remains, as it is today, open in all future circumstances unless and until the EU and UK negotiate, after Brexit, an agreement in regard to their future relationship that achieves that purpose. Article 6(1) stated that “until the future relationship becomes applicable, a single customs territory between the Union and the United Kingdom shall be established.” Article 6(2) stated that Northern Ireland will continue to remain in the EU’s Single Market for goods and the EU’s customs regime and will be required to comply with all of the relevant rules and regulations of both.

On Oct. 2, the UK delivered a draft text of a modified Protocol to the EU. In a four-page letter to European Commission President Jean-Claude Juncker, accompanied by a seven-page explanatory note, British Prime Minister Boris Johnson set out what he regarded as a “reasonable compromise: the broad landing zone in which I believe a deal can begin to take shape.” The UK didn’t release the draft text but Johnson’s letter and the accompanying explanatory note described its essential features. It proposed that, in the event the post-Brexit negotiation on the future relationship didn’t ensure an open border in all future circumstances, an all-island regulatory zone covering sanitary and phytosanitary (SPS) measures, agri-food products, and manufactured goods would be created that would eliminate all regulatory checks for trade in goods between Ireland and Northern Ireland by ensuring that goods regulations in Northern Ireland were the same as those in the EU. Northern Ireland would, in effect, remain in the EU’s Single Market and continue to be subject to its rules and regulations.

The proposed Protocol gave the Northern Ireland Executive and Assembly the opportunity to consent to those regulatory arrangements before they enter into force – that is, during the transition period – and every four years thereafter. If consent wasn’t secured, the arrangements would lapse. The proposed Protocol also stipulated that, in the event there was no post-Brexit agreement that ensured that the border would remain open in all future circumstances, the UK would not, as in the original Protocol, be part of a single customs territory with the EU and Northern Ireland would be fully part of the UK customs territory. It proposed that all customs processes needed to ensure compliance with the UK and EU customs regimes should take place on a “decentralised basis, with paperwork conducted electronically as goods move between the two countries, and with the very small number of physical checks needed conducted at traders’ premises or other points on the supply chain.”

The EU objected strenuously to the provisions regarding consent and customs and, after a week of intense, virtually non-stop negotiation, both were substantially modified. In regard to consent, the UK dropped its demand that the Northern Ireland Executive and Assembly have the opportunity to possibly veto the regulatory arrangements before they took effect for an initial period of four years. The new Protocol, agreed and approved by the European Council yesterday, provides for a decision expressing democratic consent in regard to the continuation of those arrangements for either another four years, if the decision is reached on the basis of a majority of the members of the Northern Ireland Assembly or, if it had cross-community support, another eight years. According to Article 18 of the new Protocol, cross-community support means a majority of the members of the Assembly, including a majority of the unionist and nationalist designations, or a weighted majority (60%) of the members, including at least 40% of each of the nationalist and unionist designations.

In regard to customs, Articles 6(1) and 6(2) are gone. Instead, a new Article 4 stipulates that Northern Ireland is part of the customs territory of the UK. A new Article 5 concerning customs and the movement of goods stipulates that EU customs duties will be payable on goods brought into Northern Ireland from elsewhere in the UK if there is risk they will subsequently be moved into the EU and the payments remitted to the EU. It also stipulates that the EU’s customs code and regulations in regard to trade will apply to the UK with respect to Northern Ireland and the UK will be responsible for conducting customs procedures in Northern Ireland for goods moving to the Republic or elsewhere in the EU. These provisions will ensure that in all future circumstances the border between Northern Ireland and Ireland will remain open. But they do so by creating a de facto customs border between Great Britain and Northern Ireland in the Irish Sea, alongside the de facto border resulting from the regulatory alignment of Northern Ireland with the EU.

Now that the EU and UK negotiators have reached an agreement, the agreement has, surprisingly, already been put into legal form in a new 63-page Protocol, and the European Council has unanimously approved it, all eyes turn to tomorrow’s vote in the House of Commons. Approval of the modified withdrawal agreement with its new Protocol is far from certain. Indeed, it appears quite likely it will be rejected. There are 650 Members of Parliament. The Speaker and the three Deputy Speakers don’t vote, and the seven members of Sinn Féin don’t participate in the House. That means that if all 639 MPs entitled to vote do so, 320 votes are needed for approval. The Conservatives lost the majority they won in 2015 in the ill-advised election in 2017. In early September, they lost the narrow working majority they had as a result of their confidence and supply arrangement with the Democratic Unionist Party of Northern Ireland, which has 10 MPs, when a Conservative MP defected to the Liberal Democrats. Also in early September, Johnson threw 21 Conservative MPs, many of them former ministers and eminent figures in the party, out of the party after they supported a bill put forward by a cross-party group of MPs that became the European Union (Withdrawal) (No.2) Act 2019. That act stipulates if that if the House has not approved either a withdrawal agreement with the EU or the withdrawal of the UK from the EU without an agreement, the prime minister must, no later than Oct. 19, seek to obtain from the European Council an extension of the exit date to Jan. 31, 2020.

Minus the Conservative Deputy Speaker, there are now 287 Conservative MPs in the House. Presumably the great majority of them will vote for the agreement. Roughly three dozen are members of the hardline Brexiter European Research Group, most of whom voted against the original withdrawal agreement on three occasions last spring. Most of them will probably vote for the agreement, not only because Jacob Rees-Mogg, the former leader of the ERG and now Leader of the House of Commons, is in favor of the agreement but also because they undoubtedly realize this may be the last chance to get Brexit; if the agreement is rejected, it could be followed by an election that, depending on the outcome, could be followed by a referendum or revocation of the UK’s Article 50 notification of its intention to leave the EU. Probably most of the former Conservative MPs will support it as well, although several are outspoken opponents of Brexit and would prefer either another referendum or revocation. But even if all 287 Conservative MPs and the 20+ former Conservative MPs vote in favor of the agreement, and only they vote in favor, the vote would fall short of 320.

And then there’s the DUP. It was initially anticipated that Johnson’s new deal would be designed to obtain not only the support of the hardline Tory Brexiters but the 10 DUP MPs as well. But after several long meetings of DUP leaders with Johnson at 10 Downing St. earlier this week as the contours of the new Protocol were being negotiated, yesterday the DUP issued a statement saying it will not support the agreement. Referring to the provisions in the new Protocol in regard to consent and customs, it said, “These proposals are not, in our view, beneficial to the economic well-being of Northern Ireland and they undermine the integrity of the Union….There is a real danger that over time Northern Ireland will start to diverge [from the rest of the UK] across VAT and Customs and without broad support from the democratic representatives of the people of Northern Ireland….While some progress has been made in recognising the issue of consent, the elected representatives of Northern Ireland will have no say on whether Northern Ireland should enter these arrangements. …The Government has departed from the principle that these arrangements must be subject to the consent of both unionists and nationalists in Northern Ireland…The principles of the Belfast [Good Friday] Agreement on consent have been abandoned in favour of majority rule on this single issue alone. These arrangements will become the settled position in these areas for Northern Ireland. This drives a coach and horses through the professed sanctity of the Belfast Agreement. For all of these reasons it is our view that these arrangements would not be in Northern Ireland’s long term interests.”   

If all of the present and former Tory MPs and the 10 DUP MPs voted in favor of the agreement along with the handful of Labour MPs, most of whom represent constituencies that voted to leave by large margins in the 2016 referendum, who voted in favor of the original agreement last spring or have indicated they intend to vote for this one, the agreement might be approved by a razor-thin majority. But not all of the present and former Tories will vote for it and the 10 DUP MPs definitely won’t vote for it. So unless Johnson pulls a proverbial rabbit out of the hat in the next 24 hours, the agreement will be rejected and the Brexit saga will continue, probably with a new election and perhaps another referendum as well.

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.