EU leaders approve UK withdrawal agreement & declaration. Next step: The House of Commons. And then?

European Council President Donald Tusk and UK Prime Minister Theresa May at yesterday’s European Council meeting.
Monday, November 26, 2018

On Sunday, the leaders of the European Union met in Brussels and, after a brief discussion, approved by consensus the 585-page withdrawal agreement negotiated by the EU 27 and the United Kingdom over the past 18 months and agreed on Nov. 15 as well as a 26-page political declaration setting out the framework for their future relationship that was agreed last Thursday. As difficult as the protracted negotiation has been, now comes the hardest part for Prime Minister Theresa May and her government – obtaining approval of the agreement and declaration in the House of Commons. The House is expected to vote on Dec. 12.  

Unlike the withdrawal agreement, which, if and when it is approved by the UK parliament, the European Parliament and the EU Council of Ministers, will be binding, the declaration setting out the framework for the future relationship is aspirational and non-binding. Perhaps for that reason, last week’s agreement on the declaration, in contrast to the earlier withdrawal agreement, didn’t prompt any ministerial resignations or a renewal of the effort among some Conservative backbenchers to call for a vote of no confidence in Theresa May’s leadership of the party.

Nevertheless, even if non-binding, the declaration contains provisions that will further aggravate those who objected to some provisions in the withdrawal agreement – most notably, in the 173-page protocol on Ireland/Northern Ireland that is annexed to the agreement – and will, if anything, make approval of the agreement and declaration by the House even less likely than it appeared to be after the withdrawal agreement was completed two weeks ago.

The declaration calls for “an ambitious, broad, deep and flexible partnership across trade and economic cooperation, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.” The economic partnership would be “comprehensive, encompassing a free trade area as well as wider sectoral cooperation” and the trading relationship in goods would be “as close as possible.” There would be “comprehensive arrangements that will create a free trade area, combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair cooperation.” In regard to services, there would be “ambitious, comprehensive and balanced arrangements on trade in services and investment in services and non-services sectors that include provisions on market access and national treatment under host state rules for service providers and investors and will make use of “equivalence frameworks” in regard to financial services.

There are some concessions to the Brexiters who objected to the acceptance in the Ireland/Northern Ireland protocol of a customs arrangement as a “backstop” to ensure that the Irish border remains open in all future circumstances that could conceivably remain in effect indefinitely. The declaration envisages the parties making use of “all available facilitative arrangement and technologies” in developing alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent basis. In another concession, the declaration makes clear that the principle of free movement of persons between the EU and the UK will no longer apply.

But the declaration also contains a number of provisions that will incur the wrath of the Brexiters. For one thing, although the EU’s principle of free movement will no longer apply to the UK, the declaration calls for the creation of “mobility arrangements” that would provide for visa-free travel for short-term visits, conditions for entry and stay for purposes of research, study, training and youth exchanges, coordination of social security policy in the light of the future movement of persons, and facilitation of individuals crossing borders for “legitimate travel.” For another, it calls for provisions to ensure that the EU and UK maintain a “level playing field” in the economic relationship in policies involving state aid, competition, social and employment standards, environmental standards and relevant taxation, which implies not only that the rules and regulations pertaining to trade and commerce in the UK and EU should remain aligned as they now are but should be “dynamically” aligned in the future – meaning that if the EU were to raise any of those standards the UK would have to do likewise.

Although it is only aspirational and not binding, perhaps most problematic for hardline Brexiters are the provisions in the declaration pertaining to institutional arrangements. It calls for creation of “an overarching institutional framework” covering specific areas of cooperation – one that could, it says, take the form of an Association Agreement. It commits the parties to engage in regular dialogue and establish “robust, efficient and effective arrangements” for the management, supervision, implementation, review and development of the relationship and the resolution of disputes. There should be dialogue at summit, ministerial, technical, and parliamentary levels, with the dialogue at the summit and ministerial levels overseeing the future relationship and providing strategic direction. And there should be a “Joint Committee” that would be responsible for managing and supervising the implementation and operation of the future relationship, would make recommendations concerning the evolution of the relationship, and would facilitate the resolution of disputes. The “Joint Committee” could refer a dispute to an independent arbitration panel that could either make a binding decision itself or, if the dispute raises a question of interpretation of EU law, refer it to the European Court of Justice for a binding ruling.

The House of Commons is expected to take up the matter on Dec. 10, with a likely vote on Dec. 12. Over the next two weeks, Theresa May and her government will take their campaign for approval of the withdrawal agreement and declaration to the country. They will argue that the choice facing the UK at this point is brutally simple: accept the withdrawal agreement that has been negotiated and approved by the government and the EU27 or leave the EU on Mar. 29 without an agreement. The EU, they will say, has no interest in negotiating further and has already made it clear it won’t extend the negotiation. In making that argument, she and her colleagues will no doubt be assisted by many in the EU and elsewhere who will say the time for negotiation is over; it’s this deal or no deal. As European Commission President Jean-Claude Juncker put it after Sunday’s meeting: “This is the best deal possible for Britain…this is the only deal possible.” In a similar vein, Irish Taoiseach Leo Varadkar said, “any other deal really only exists in people’s imagination.”

Despite the fact that Theresa May and her government have presented the choice before the House of Commons as a choice between this deal or no deal, and despite the very significant economic costs over the long run of a no-deal Brexit compared with this deal, it appears likely the House will reject the agreement and declaration. There are 650 M.P.s. Excluding the Speaker and three deputies, who don’t vote, and the seven Sinn Féin M.P.s, who don’t attend, the maximum number of voting M.P.s is 639 – meaning, if everyone votes, 320 M.P.s will have to vote for the agreement and declaration in order for it be approved. Excluding the Conservative deputy speaker, there are 314 Conservative M.P.s eligible to vote. More than 90 have expressed their opposition to the agreement. No doubt some, perhaps a good number, will be persuaded to support the government. But some unknown number, perhaps several dozen, will vote against the agreement.

Since the June 2017 election in which the Conservatives lost their majority, the government has relied on the 10 M.P.s of the Democratic Unionist Party of Northern Ireland for its majority in the House through a “confidence and supply” arrangement. But the DUP has strongly objected to the government’s agreement that, in order to ensure that the border between Northern Ireland and Ireland remains open and frictionless in all future circumstances, Northern Ireland and the Republic will remain aligned, as they are today, in terms of the rules and regulations that affect trade and commerce, and that, as a “backstop” in the absence of agreed solutions to ensure that the border remains open, Northern Ireland will remain aligned with the rules and regulations of the EU’s internal market and customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Belfast Agreement – even if that means, as it inevitably would, a regulatory divergence between Northern Ireland and the rest of the UK. The DUP has made it known for some time that it will oppose the agreement and it did so again this past weekend at its annual conference. Arlene Foster, the DUP leader, also made it clear that if the agreement is approved, the DUP will “revisit” its “confidence and supply” arrangement with the Conservatives.

In addition to the Conservative and DUP M.P.s, there are 257 members of the Labour Party, two of whom are deputy speakers, 35 members of the Scottish National Party, 12 Liberal Democrats, 8 independents, 7 members of Plaid Cymru, and one Green. On Sunday, Jeremy Corbyn, the Labour leader, said the party will oppose the deal while also working with others to prevent a no-deal exit. There may be some Labour M.P.s – perhaps a dozen or so – from strong “leave” constituencies who will vote for the deal. But the vast majority will vote against the government as will the 35 SNP M.P.s, 11 of the 12 Liberal Democrats and the seven Plaid Cymru M.P.s.  Given the opposition of perhaps as many as 50 or 60 hardline Conservative Brexiters who see the agreement as too accommodating to the EU and that of the 10 DUP M.P.s, coupled with the overwhelming opposition of Labour, SNP, Liberal Democrat, and Plaid Cymru M.P.s, it seems highly unlikely, notwithstanding the “Deal or Doomsday” rhetoric of the government and the EU, the House will approve the agreement and declaration.

Why would so many M.P.s, in rejecting the withdrawal agreement, appear to disregard the very significant adverse economic consequences of a no-deal Brexit? Perhaps because they know that, contrary to the argument of the government and the EU, the choice facing the UK, even at this late date, is not limited to either accepting the agreement or a making no-deal exit; there are other possible options in the event the House rejects the agreement. Indeed, they know that, by the terms of the European Union (Withdrawal) Act 2018, the government – whether headed by Theresa May or someone else – will be obliged to propose a course of action to the House in the event the agreement is rejected.

The Act leaves it entirely up to the government to decide what to do. By the terms of the Act, which took effect in June, if the agreement is rejected, a minister must, within 21 days of the vote, make a statement in writing setting out how the government proposes to proceed in relation to the withdrawal negotiations and must, within seven days of that statement, make arrangements for a motion that the House has considered the matter to be moved in the House and a motion to be moved in the House of Lords to take note of the statement. If the prime minister makes a statement in writing before the end of Jan. 21, 2019 that no agreement in principle can be reached in the negotiations, a minister must, within 14 days of that statement, make a statement in writing setting out how the government proposes to proceed and make arrangements for a motion that the House has considered the matter to be moved within seven days of the minister’s statement and a motion to be moved within seven days in the House of Lords to take note of the statement. And if at the end of Jan. 21, 2019, there is no agreement in principle in the negotiations, a minister must, within five days, make a statement in writing setting out how the government proposes to proceed and make arrangements for a motion to be moved that the House has considered the matter and for a motion to be moved in the House of Lords to take note of the statement.

The government could, of course, propose that the UK leave the EU without a withdrawal agreement on Mar. 29, 2019. But that option would surely be defeated in the House by a substantial margin. It could instead, and with the support of the House, propose that it seek to resume the negotiation (although the EU has ruled that out). Or ask the EU to extend the negotiation period beyond Mar. 29 (which would require the unanimous consent of the EU27). Or propose an alternative withdrawal arrangement such as continued membership after Mar. 29 in the EU’s internal market and customs union as a member of the European Economic Area (the so-called Norway solution). Or call a new election (provided, in accord with the Fixed-term Parliaments Act 2011, either two-thirds of the members vote in favor of a new election or the House passes a vote of no confidence in the government). Or call a second referendum that asks voters whether they wish to leave without a withdrawal agreement or remain in the EU.

When asked in a YouGov national poll on Nov. 15 whether they supported or opposed the current deal, 15 percent said they supported it and 51 percent said they opposed it. But when asked if they preferred that the deal be accepted or the UK leave without a deal, 60 percent said they preferred that it be accepted. And when asked if they preferred to leave without a deal or have a new referendum, 54 percent said they preferred to have a new referendum. As the members of Parliament wrestle with what to do in the days ahead, hopefully they will have the good sense to listen to the voters. That, after all, is what democracy is all about. 

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