After European Council, Theresa May announces January vote on Brexit agreement, seeks further assurances about Irish backstop

Theresa May reporting to the House of Commons Monday on the European Council meeting and the timing of the vote on the withdrawal agreement.
Friday, December 21, 2018

After a week of high drama in the Brexit saga, on Monday Prime Minister Theresa May told the House of Commons the vote on the UK-EU withdrawal agreement, originally scheduled for Dec. 11 but “deferred” after it became apparent it would be defeated by a “substantial margin,” will take place in the week of Jan. 14, following resumption of the debate in the week of Jan. 7. In the meantime, she said, as she had a week earlier in deferring the vote, she would seek “further assurances” from the EU, notwithstanding its tepid response at last Thursday’s European Council meeting, in regard to provisions in the agreement designed to protect North-South cooperation and avoid a hard border between Northern Ireland and Ireland.

Last December, the UK agreed that it intended to achieve those objectives through the overall EU-UK relationship to be negotiated after its exit and that, should that not be possible, it would propose specific solutions to address the unique circumstances of the island. In what came to be known as the “backstop,” it agreed that, in the absence of agreed solutions, it “will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Good Friday or Belfast agreement.”

Article 6.1 of the 173-page Protocol on Ireland/Northern Ireland, part of the 585-page withdrawal agreement, states the EU and UK will constitute a “single customs territory” until the future relationship, to be negotiated after the UK leaves the EU, becomes applicable. Article 6.2 mandates that Northern Ireland will remain in the EU’s Single Market for goods and the EU’s customs regime, will be required to apply and comply with the rules and regulations of both, and will continue to be subject to the jurisdiction of the Commission and Court in regard to its fulfillment of its obligations under those rules and regulations. Article 1.4 states the objective of the withdrawal agreement is not to establish a “permanent relationship” between the EU and the UK and the provisions of the Protocol “are therefore intended to apply only temporarily.” But it also states that those provisions “shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.”

At Thursday’s meeting of the European Council, after hearing from May and discussing the matter with her, the Council, meeting in its Article 50 format – i.e., without her, made it clear, as European Council President Donald Tusk, Commission President Jean-Claude Juncker, German Chancellor Angela Merkel and others had prior to the meeting, that the EU stands by the agreement and it is not open for renegotiation. In its conclusions, the Council underscored the fact that the backstop is intended as “an insurance policy to prevent a hard border on the island of Ireland” but said it is determined to work speedily on a subsequent agreement that establishes by Dec. 31, 2020 [the termination date of the transition or implementation period during which the UK will remain in the Single Market and Customs Union] alternative arrangements so the backstop will not need to be triggered. Toward that end, it said it was ready to embark on preparations immediately after signature of the withdrawal agreement so the negotiations could start as soon as possible after the UK’s withdrawal. And it underscored the fact that “if the backstop were nevertheless to be triggered, it would apply temporarily, unless and until it is superseded by a subsequent agreement that ensures that a hard border is avoided. In such a case, the Union would use its best endeavors to negotiate and conclude expeditiously a subsequent agreement that would replace the backstop.”

That was as much reassurance as the Council could provide short of reopening the negotiation – committing itself to embarking on preparations for the negotiation of the future relationship as soon as the withdrawal agreement is signed and, in the event the backstop is triggered, using its “best endeavors” – a legal term – to negotiate and conclude “expeditiously” an agreement that would replace the backstop. Nevertheless, it’s unlikely the Council’s conclusions changed the minds of M.P.s opposed to the withdrawal agreement. And it’s also unlikely, given the substantial majority currently opposed to the agreement, that “further assurances” will persuade enough of those who are now opposed to it to change their minds and enable it to be approved when it comes to a vote in January.

Nevertheless, it should be noted that the EU has in several instances involving complex agreements that have encountered opposition in a member state found ways to accommodate the concerns in the state, thereby enabling it to approve the agreement and allowing it to be ratified, and both Tusk and Juncker made it clear after Thursday’s meeting they were prepared to assist the UK if called upon to do so. Tusk said, “I have no mandate to organize any further negotiation…We have to exclude any further opening of the withdrawal agreement. But of course we will stay here in Brussels and I am always at Prime Minister May’s disposal.” Likewise, Juncker said, “we would like within a few weeks for our UK friends to set out their expectations for us…. I would like clarifications.”

After Danish voters rejected the Treaty on European Union in a June 1992 referendum, the European Council, meeting in Edinburgh six months later, agreed to a decision – not just a “conclusion” but a “decision,” accompanied by a declaration – pertaining to the several concerns the Danish government felt needed to be addressed before it called a second referendum on the treaty. Among them were its concerns about the relationship between the EU citizenship created by the treaty and national sovereignty, participation in the EU’s new security and defense policy, the obligation to enter the third and final stage of Economic and Monetary Union, cooperation in regard to justice and home affairs, and cooperation in combatting unemployment. The Council’s decision, that would take effect when the TEU entered into force, accepted, among other things, that Denmark was not be obliged to participate in EMU or participate in any defense-related policies under the treaty’s Common Foreign and Security Policy. With those assurances in hand, the Danish government called a second referendum and in May 1993, Danish voters approved the TEU.

A more recent example occurred after Dutch voters rejected the EU’s Association Agreement with Ukraine by a substantial margin in an advisory referendum in April 2016. Prime Minister Mark Rutte asked the EU for additional guarantees that ratification of the agreement wouldn’t lead to Ukraine’s membership in the EU, and in December 2016 the European Council issued a declaration saying the agreement didn’t make Ukraine a candidate for membership, didn’t commit the EU to making it a candidate in the future, and didn’t oblige the EU or the member states to provide for Ukraine’s security. After obtaining the declaration, the Dutch parliament approved legislation ratifying the agreement in 2017.

Another recent example – perhaps the one that is most appropriate for the Brexit situation – occurred when the regional parliament of Wallonie in Belgium refused to ratify the EU-Canada Comprehensive Economic and Trade Agreement in early 2016. (In federal Belgium, ratification of a treaty requires approval of the regional parliaments as well as the national parliament.) The EU and Canada agreed on a Joint Interpretive Instrument which provided, in the sense of Article 31 of the Vienna Convention on the Law of Treaties (1969), “a clear and unambiguous statement of what Canada and the European Union and its Member States agreed in a number of CETA provisions that have been the object of public debate and concerns and provides an agreed interpretation thereof.” The issues concerned the ability of governments to regulate in the public interest as well as provisions pertaining to investment protection, dispute resolution, sustainable development, labor rights and environmental protection. With the JII in hand, the regional parliament accepted CETA and it was signed in late 2016 and approved by the European Parliament and Canada in early 2017.

It’s not at all obvious that May will obtain, prior to the resumption of the debate on the withdrawal agreement and the vote in the week of Jan. 14, “further assurances” in regard to the backstop, much less assurances sufficient to change the minds of enough M.P.s to enable the House to approve the withdrawal agreement. Indeed, the Danish, Dutch and Canadian experiences mentioned above, as well as the comments of several leaders at Thursday’s European Council meeting, suggest that May is unlikely to receive such assurances until the agreement has been put to a vote and rejected by the House.

Nevertheless, there is at least one possible clarification that could be obtained, possibly prior to the January vote, that, without reopening the negotiation, might make the agreement more acceptable to some of the M.P.s opposed to it, including a number of Conservatives and those in the Democratic Unionist Party of Northern Ireland, which supports the government in Parliament but is adamantly opposed to the backstop. Article 126 of the agreement states that the transition or implementation period, during which the UK will remain in the EU’s Customs Union and the Single Market, will end on Dec. 31, 2020. But Article 132 states that before July 1, 2020, the Joint EU-UK Committee which will oversee the agreement may adopt a single decision extending the transition to Dec. 31, 20XX. The article does not specify any conditions for an extension or a maximum duration of the extension.

If the UK does in fact leave the EU on March 29, 2019, it is inconceivable that they will complete the negotiation of the future economic agreement by the end of 2020 – i.e., in only 21 months. It took the EU and Canada more than five years, from May, 2009 to August, 2014, to negotiate CETA, which is more than 1,600 pages in length, and the EU-UK agreement will be substantially more complicated than CETA. One way to avoid the possibility that the backstop would come into play on Jan. 1, 2021, after the agreed transition period ends, and remain in effect until the future agreement is ratified and takes effect some years later, would be for the EU and UK to agree to a Joint Interpretive Instrument, such as the one the EU and Canada agreed after the regional parliament of Wallonie blocked CETA, in which they agreed that Article 132 does not specify any preconditions or maximum term for an extension of the transition period beyond Dec. 31, 2020 and that whether an extension occurs and, if so, of what duration is to be decided jointly by the EU and UK before July 1, 2020. Conceivably, they could agree in 2020 to an extension of sufficient duration to ensure that the backstop would never come into play.

Over the next several weeks, while seeking “further assurances” in regard to the backstop sufficient to persuade enough opponents of the agreement to support it so it will be approved by the House in January, the government will no doubt continue its effort, reminiscent of “Project Fear” in 2016, to persuade opponents of the agreement to change their minds in light of the severe economic consequences of a no-deal Brexit. And indeed, those consequences would be severe: In November, the Bank of England concluded that a no-deal, no-transition exit would cause the GDP to be 8 to 10 percent lower by the end of 2023 than the projected GDP based on the trend as of May 2016, with most of the contraction occurring in 2019 and plunging the economy into a deep recession. Likewise, the Treasury estimated that, while all of the various withdrawal arrangements would result in a contraction of the economy compared with continued membership in the EU, a no-deal exit would have the greatest negative impact and would reduce GDP by 6 to 9 percent.

“Project Fear” didn’t persuade a majority to vote for Remain in 2016 and there’s no reason to think that “Project Fear 2.0” will persuade a majority of the House to vote for the agreement in the week of January 14, 2019 for a simple reason: The threat of a no-deal Brexit is not credible. Given the severe economic consequences of such an exit, few if any members of the House believe the government would actually follow through on that threat in the event the House rejected the agreement. But that, of course, increases the likelihood that the opponents of the agreement will disregard the warnings about the dire consequences of a no-deal exit and continue to oppose the agreement. Which, of course, raises the question of what the government will do if and when the House rejects the agreement.

Under the terms of the European Union (Withdrawal) Act 2018, if the agreement is rejected by the House, the government must inform the House in writing how it proposes to proceed and make arrangements for a motion to be moved that the House has considered the matter. A variety of options have been discussed, sotto voce, among members of the government in the event the House rejects the agreement – requesting further assurances from the EU, requesting an extension of the negotiating period (something that would require the unanimous consent of the EU27), informing the EU it no longer wishes to withdraw (something the European Court of Justice recently ruled could be done prior to March 29, 2019), holding a second referendum, etc. In the absence of a consensus in regard to a preferred alternative to a no-deal Brexit in the event the House rejects the agreement, some members of the government have discussed holding one or more “indicative” votes in the House to test support for the various alternatives.

But while the government insists publicly that the only alternative to the agreement is a no-deal Brexit, and obviously will continue to do so until the vote is taken, the public has made its views known and at least three things are clear – first, that it doesn’t like the deal; second, that it doesn’t like a no-deal Brexit; and third, that, rather than either of those options, it prefers to remain in the EU. In a large YouGov survey of 20,910 citizens conducted between Nov. 27 and Dec. 4, remaining in the EU was the first preference of 46 percent, leaving with the negotiated deal was the first preference of 27 percent, and leaving with no deal was the first preference of 27 percent. In a more recent YouGov poll, conducted over three days last week among 5043 citizens living in Great Britain, among those holding a view 53 percent thought in hindsight it was wrong for Britain to vote to leave the EU; 65 percent opposed the negotiated agreement; 56 percent thought the final decision about the future relationship with the EU should be made by the public voting in a referendum rather than by M.P.s, and 59 percent said that, if there was a referendum, they would vote to stay in the EU rather than leaving with the negotiated agreement.

It’s time for the government and the House to listen to the people.

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