On Mar. 29, 2017, British Prime Minister Theresa May informed European Council President Donald Tusk that, in light of the vote in the June 2016 referendum in which 52 percent said they thought the United Kingdom should leave the European Union and the subsequent confirming vote of the parliament, the UK wished to withdraw from the EU. As a result, and in accord with the provisions of Article 50 of the Treaty on European Union, Mar. 29, 2019 became the date on which, barring a unanimous decision by the European Council to extend the negotiation of a withdrawal agreement, the UK will, with or without such an agreement, leave the EU.
Realizing that, in order for a withdrawal agreement to take effect on that date, it would have to be approved, prior to that date, by the European Council, the UK Parliament, the European Parliament and the Council of Ministers, the EU and UK had hoped to complete negotiation of the agreement prior to the October meeting of the European Council. But that didn’t happen, largely because of continuing differences in regard to two issues – how to ensure that the border between Northern Ireland and the Republic of Ireland will remain open in all future circumstances and the nature of the future relationship between the EU and UK after the transition period, agreed earlier this year, that would end at the end of 2020.
After failing to complete the negotiation in time for the October meeting and cognizant of the procedural hurdles that must be overcome by Mar. 29, 2019, a special meeting of the European Council was tentatively planned for Nov. 25 at which it could approve the completed agreement so the UK government could present it to parliament for its approval in December. The EU said the last possible day for scheduling that meeting was Wednesday. If the November meeting couldn’t be scheduled by then, approval would have to wait until the regular end-of-year European Council meeting on Dec. 13-14, which would push consideration of the agreement by the British parliament into January and squeeze the time available for the European Parliament and the Council of Ministers to approve the treaty containing the agreement by Mar. 29, 2019.
On Tuesday, after a flurry of last-minute negotiations that ran into the early morning hours, the EU and UK agreed on the draft text of the withdrawal agreement. The members of the British cabinet, who had been invited to 10 Downing St. last week to read much of the text and had met again on Tuesday morning, were called back Tuesday evening to read the relevant paragraphs of the 585-page draft text that had been agreed in Brussels earlier that day. On Wednesday, after a discussion that went on for five hours and that Theresa May characterized as a “long, detailed and impassioned debate,” the cabinet reached a “collective decision” – no vote was taken – to agree to the draft withdrawal agreement and a separate 7-page outline of the political declaration setting out the framework for the future relationship between the EU and the UK that will accompany and be referred to in the withdrawal agreement. On Thursday, European Council President Tusk announced that the EU 27 ministers will meet on Monday to discuss the agreement and direct the Commission to finalize the political declaration on Tuesday. If, he said, “nothing extraordinary happens,” the European Council will meet on Nov. 25 to finalize and formalize the agreement and declaration.
As sketchy as it is at this point, the 7-page outline of the political declaration draws on the ideas put forward in March by the European Council and by May in her Mansion House and by the government in its White Paper. According to the outline, the EU and UK envision both an economic and a security partnership. The former will involve comprehensive arrangements creating a free trade area that combines deep regulatory and customs cooperation with provisions ensuring a level playing field for open and fair competition; zero tariffs, no fees, charges or quantitative restrictions with customs arrangements that build on the single customs territory provided for in the withdrawal agreement; comprehensive and balanced arrangements regarding trade in services and investment that liberalize and provide substantial sectoral coverage trade in services; provisions on market access and national treatment under host state rules; provisions to enable free movement of capital and payments; and commitments to preserve financial stability, market integrity, investor protection and fair competition and to provide for close and structured cooperation in regard to the regulation and supervision of financial matters, etc. In regard to security, the UK and EU envision a partnership that extends from law enforcement and judicial cooperation in criminal matters to foreign policy and defense. Importantly – and controversially, especially for hardline Brexiters – they also foresee an overarching institutional framework with specific governance arrangements in individual areas, mechanisms for dialogue at summit, ministerial, technical and parliamentary levels, and robust arrangements for setting the strategic direction and management, supervision, implementation and development of the future relationship and for the resolution of disputes and enforcement.
As important as the future relationship between the EU and UK will be for both in the long term, it appears that it was the provisions in the 173-page draft protocol on Ireland/Northern Ireland that generated most of the discussion and controversy at Wednesday’s decisive cabinet meeting. As the members of the cabinet left 10 Downing St. Wednesday evening, they presented a unified front. But it soon became known that nearly a dozen members had spoken forcefully against some aspects of the draft agreement. And soon thereafter, the resignations began – first, Shailesh Vara, minister of state in the Northern Ireland office, and then, on Thursday morning, Esther McVey, work and pensions secretary; Suella Braverman, a junior minister in the Department for Exiting the EU; and, most importantly, Dominic Raab, the Secretary of State for Exiting the EU. Raab had replaced Davis, who resigned along with Boris Johnson after the cabinet approved the 100-page White Paper on the future relationship at its all-day meeting at Chequers in July. Last Friday, after reviewing the text of the nearly-completed withdrawal agreement, Jo Johnson, minister of rails and brother of Boris but a supporter of staying in the EU, had also resigned, saying the agreement offered a choice between “vassalage” to the EU or the “chaos” of a no-deal Brexit. Michael Gove, a leading Brexiter, said he would remain in the cabinet but he declined the prime minister’s request that he replace Raab.
Beyond the ministerial ranks, more than 50 Conservative M.P.s have already made known their opposition to the terms of the withdrawal agreement and an as-yet-unknown number of them, including Jacob Rees-Mogg, the chair of the pro-Brexit Europe Research Group, have gone so far as to write to Sir Graham Brady, the chair of the Conservative’s 1922 Committee, which represents the party’s backbenchers, requesting a vote of no confidence in Theresa May. Under party rules, only 15 percent of the Conservative M.P.s – 48 – must make a written request in order for there to be such a vote. She probably would survive such a vote if it were held today. But the odds that she would remain as party leader and prime minister if the withdrawal agreement were to be rejected by parliament in December are vanishingly low.
In his resignation letter, Raab spoke for many in the cabinet and on the Conservative back benches in the House of Commons when he said, “I cannot support the proposed deal for two reasons. First, I believe that the regulatory regime proposed for Northern Ireland presents a very real threat to the integrity of the United Kingdom. Second, I cannot support an indefinite backstop arrangement, where the EU holds a veto over our ability to exit. The terms of the backstop amount to a hybrid of the EU Customs Union and Single Market obligations. No democratic nation has ever signed up to be bound by such an extensive regime, imposed externally without any democratic control over the laws to be applied, nor the ability to decide to exit the arrangement.”
In April 2017, soon after May informed the EU of the UK’s intention to withdraw, the European Council issued its guidelines for the negotiation and identified three issues that would have to be addressed in the first phase of the negotiation – the UK’s settlement of its financial obligations to the EU, the continuing rights of EU citizens living in the UK and UK citizens living in the EU after the UK leaves the EU, and the UK’s continued support of the Good Friday or Belfast Agreement of 1998 and the peace process on the island of Ireland. The Council said it would decide at its December 2017 meeting whether “sufficient progress” had been made in the first phase of the negotiation so it could move on to the next stage, which would include consideration of the future relationship between the EU and UK.
In the December 2017 Joint Report of the negotiators, the UK agreed, in paragraph 49, that any future arrangement with the EU must be compatible with the overarching requirements of protecting North-South cooperation and avoiding a hard border between Northern Ireland and Ireland, that it intended to achieve those objectives through the overall EU-UK relationship, and that, should that not be possible, it would propose specific solutions to address the unique circumstances of the island. And 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 Agreement.”
In March, the negotiators prepared a draft Protocol on Ireland/Northern Ireland that would be annexed to the withdrawal agreement and apply unless and until a future agreement between the EU and UK addressed the unique circumstances on the island. But they didn’t agree on language for the chapter dealing with the “common regulatory area” – defined as an area without internal borders in which the free movement of goods is ensured and North-South cooperation is protected. May explicitly rejected the concept of a “common regulatory area” composed of Ireland and Northern Ireland for an obvious reason; it would cross a “red line” for the Democratic Unionist Party of Northern Ireland which, since the June 2017 election in which the Conservatives lost their majority in the House of Commons, has provided the government with its narrow working majority in the House. In the run-up to the December 2017 European Council meeting, the DUP had strongly objected to language in the negotiators’ Joint Report that said Northern Ireland and Ireland would be aligned in terms of regulations and strongly opposes any measure that would create a regulatory divergence between Northern Ireland and the rest of the UK. The EU, on the other hand, made it clear then, and has continued to do so over the past year, that a “legally operative version” of the “backstop” that would apply unless and until another solution is found must be included in the withdrawal agreement.
One obvious way to maintain the regulatory alignment that now exists between Ireland and Northern Ireland while also maintaining the full integration of Northern Ireland in the UK internal market would be for the UK to continue, after the agreed-upon transition period that ends on Dec. 31, 2020, as a member of the EU’s Single Market and Customs Union via membership in the European Economic Area. But that, of course, would require the UK to accept, as it does now and will during the transition period, the jurisdiction of the European Court of Justice, the regulatory and oversight functions of the EU institutions, the free movement of EU citizens into the UK, continued payment of its full budgetary contribution, and acceptance of EU responsibility for all matters pertaining to trade with third countries.
A second-best alternative that would at least ensure that the border between Ireland and Northern Ireland remains open and trade between the two remains frictionless after 2020 would involve creation of a new customs arrangement between the UK and the EU. In June, the UK proposed a “time-limited” temporary customs arrangement between the EU and UK that would keep the Irish border open and frictionless after the transition period ends until a new permanent customs arrangement could take effect. In the temporary arrangement, there would be no tariffs, quotas, rules of origin and customs processes, including declarations, on trade between the UK and EU and the UK would continue to apply the EU’s common external tariff at its border. Although the UK didn’t specify a termination date for the temporary arrangement, it said it expected the permanent arrangement would be in place by the end of 2021. Needless to say, hardline Brexiters insisted that the arrangement not only be temporary and time-limited, as the government proposed, but it include a specific termination date so it couldn’t continue indefinitely.
In September, the UK renewed the proposal. Hardline Brexiters continued to insist that the arrangement not only be time-limited and temporary but that it include a specific termination date. The EU, on the other hand, continued to insist not only that the arrangement must remain in effect until the permanent customs arrangement that meets the requirements specified in Paragraph 49 takes effect but that any decision to terminate it must be approved by the EU. In addition, the EU insisted that, while the temporary arrangement is in effect, the UK regulations that apply to and affect trade between the UK and the EU must remain, as they currently are and as the UK agreed in paragraph 49, fully aligned. And since the arrangement would involve the entire UK and would, in effect, allow the entire UK to retain its membership in the EU’s Customs Union, the UK as a whole, and not just in Northern Ireland, would have to maintain a “level playing field” with the EU in terms of tax policy, environmental policy, competition policy, state aid policy, etc. – meaning that it would have to remain, as it is today, fully aligned with EU policy in all aspects of regulatory policy pertaining to trade. And it would, moreover, have to be “dynamically” aligned, meaning that any changes in EU regulatory policy that might affect the “level playing field” would have to be implemented by the UK and the UK, on the other hand, could not introduce changes in regulatory policy pertaining to trade that would alter the “level playing field” in its favor.
Recognizing that the other EU member states would insist that, if the UK in effect continued to participate in the EU-wide customs union, they would insist that it play by the same rules on the same level playing field, the UK accepted the EU’s terms. In doing so, the UK avoided the regulatory divergence of Northern Ireland from the rest of the UK that Arlene Foster, the DUP leader, so vigorously opposed in the run-up to last December’s European Council meeting and that would have caused it to withdraw its parliamentary support for the government. But in accepting the EU’s conditions, the government managed to not only antagonize the DUP, which sees, in the mandated regulatory alignment of Northern Ireland and Ireland after the transition period ends, the likely regulatory divergence of Northern Ireland from the rest of the UK – setting the stage, of course, for the DUP’s ultimate nightmare, the eventual unification of Northern Ireland and the Republic – but also many pro-Brexit Conservatives who share Dominic Raab’s concerns about the provisions set forth in the protocol which not only threaten the territorial integrity of the UK but give the EU extensive continuing influence over UK policy.
On Nov. 25, the EU 27 will review and presumably approve the withdrawal agreement and the still-to-be elaborated political declaration on the future relationship between the EU and the UK. Then, both documents will go to the British parliament for its consideration. And there, unfortunately for Theresa May, the UK, and the EU, the hopes of all for a negotiated withdrawal are likely to be dashed by the parliamentary arithmetic of the House of Commons. Given the division among the 315 Conservative M.P.s and the fact that most if not all of the 257 Labour M.P.s and certainly all of the 35 Scottish National Party M.P.s, 12 Liberal Democratic M.P.s, and 10 Democratic Unionist M.P.s will oppose the withdrawal agreement, it is highly unlikely, even with the support of some Labour M.P.s, the withdrawal agreement will be approved. If it is defeated, Theresa May will either resign or be replaced as leader of the Conservative Party and prime minister and the government will then have to decide whether to seek an extension of the negotiation from the EU – something the EU has already said it has no interest in granting, or lead the country over the cliff-edge into the chasm of a no-deal Brexit, or call a new election that would become a de facto referendum on remaining in or leaving the EU. Hopefully, for the sake of both the UK and the EU, they will choose the latter.
David R. Cameron is a professor of political science and the director of the MacMillan Center’s Program in European Union Studies.