The Brexit Withdrawal Agreement: Analysis, Assessment and Reflection

A frictionless future?

Alphen, Netherlands. 20 November. At last, something Brexit to analyse, so I will analyse! The Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and European Atomic Energy Community.

The draft Withdrawal Agreement implies delivery at some point (but no more than that) of many of the Brexit promises made although not in full and not immediately. The Agreement will at some point end unfettered freedom of movement, there will eventually be an end to large annual British payments to the European Union, and Britain will in time cease to be a member of the Single Market and THE customs union, although London will almost certainly remain part of A customs union. There will also be a formal end (of sorts) to Britain’s membership of the Common Agricultural Policy and the Common Fisheries Policy.

However, a significant problem remains the status of Northern Ireland and the so-called ‘backstop’. During the transition period which is currently scheduled to end on December 31st 2020, and which Prime Minister Theresa May prefers to call the ‘implementation period’, the whole of the UK must remain within the EU customs territory. Any disputes would be settled by a joint committee but any issue relating to EU law would be settled by the European Court of Justice of which the UK would cease to be a member come March 29th 2019.

The treaty agreeing a future relationship is wholly dependent on there being a technical solution found to enable frictionless movement of goods, services and people across the inner-Irish border for fear that a restored active border could endanger peace in Northern Ireland and the 1998 Good Friday Agreement that sealed it. Both the EU and the UK have committed to ‘best endeavours’ to find such a solution within the timeframe of the transition. However, if no solution is found the British face the prospect of being locked into a permanent customs union on Brussels’ terms with a high level of regulatory alignment with a whole host of EU rules and regulations without limited influence over them. Alternatively, the British could step outside of the customs arrangement but would be required to establish an implicit border in the Irish Sea between Great Britain and Northern Ireland thus weakening the integrity of the UK (and the Good Friday Agreement if hard-line Unionists resist).  

The critical issue is that the Agreement locks the backstop into legal perpetuity once it is established, which is of dubious legality under public international law. One very senior British lawyer, Remainer and former Attorney-General Lord Falconer claims there is no legal basis for a treaty which denies a party that has given reasonable notice the right to abrogate an instrument that affects its borders in such a way. Therefore, it is quite possible that a legal challenge could be mounted against the Agreement and without some softening of the language it is very hard to see how Parliament or future British governments can or would accept it. 

The Political Dividing Lines

May’s treatment of the Irish question also reveals her attitude towards the kind of full sovereignty Brexit Boris Johnson and other Brexiteers want. In international relations, very few states enjoy full sovereignty as most are constrained by a complex web of treaties and agreements. However, faced by a divided Cabinet and Party and under pressure from big business and HM Treasury May effectively scrapped what might be termed a strategic and political Brexit in favour of a narrow, technical Brexit and in 2017 effectively handed over ‘competence’ for its negotiation to the civil service with instructions simply to get a deal. Given that Britain was from that point on the demandeur the negotiations effectively boiled down to the actual political and financial price Britain would pay for access to EU markets. And, as the Treasury and big business strengthened their respective grips policy issues were subordinated to supply chains. The result is that Brexit has become precisely that; a supply chain Brexit. 

It is May’s shift from Brexit means Brexit to the preservation of supply chains at almost any cost which has exacerbated the political divisions that now exist. By abandoning the commitments she made in the Lancaster House and Florence speeches, as well as her so-called ‘red lines’, she has reinforced a sense amongst many that promises have been broken. This makes it unlikely that May will succeed in getting the Agreement through the House of Commons (at least in the first instance). Full sovereignty Brexiteers believe she has betrayed Brexit, whilst the ten MPs of the Northern Irish Democratic Unionist Party (DUP) upon which her minority government depends for survival are likely to withdraw their formal support under the so-called Confidence and Supply Agreement if Northern Ireland is treated differently from the rest of the UK. On the Remainer side, there is disquiet that the Agreement fails to commit Britain to the Single Market.  Her parlous political situation has been created by the promises she made in the immediate aftermath of Brexit and before she lost her majority in the House of Commons which implied a hard or ‘clean’ Brexit.  

May has also failed to communicate effectively the sheer complexity associated with disentangling 45 years of deep statutory engagement in the EU. One problem she faces is that the extent of Britain’s entanglement in EU law went far beyond what most British political leaders were ever willing to admit to the British people. The EU’s Chief Negotiator Michel Barnier has suggested that the transition period will now need to be extended to December 2022. This is almost certainly correct. Unfortunately, May continues to deny the length of time it will take for Brexit in any form to be realised.

A fait accompli

In essence, Britain is now faced with a fait accompli because foolishly (or deliberately) there are insufficient plans in place to deal with a 'no deal' scenario. Without an Agreement in place, Britain’s formal departure from the EU next March generate real friction at the UK’s borders with profound implications for the vital relationships upon which Britain’s trade depends. The paradox is that Britain now has little alternative but to rely on an Agreement that will please no-one and which future British governments will doubtless seek to overturn. As such this agreement reflects May’s singular political talent for delaying the consequences of hard choices until a later date.  

The Agreement effectively leaves Britain in a strategic no man’s land between two extremes. Those who envision Britain becoming a ‘Singapore of the Atlantic’, which is highly unlikely and those who simply seek to cancel Brexit. What the Agreement will ensure is that Brexit will remain a toxic issue in British politics for the foreseeable future as it leaves Britain’s relationship with the EU wholly unresolved. 

Worse, there is now every possibility that some EU member-states will seek to change the terms of the Agreement or at least insist that so-called ‘side agreements’ are tacked on. France, Spain, the Netherlands and Denmark have expressed dissatisfaction with the lack of a British commitment to permit their respective fishing fleets to access British waters. Spain has expressed deep concerns about the status of Gibraltar. 

Assessment

There was a certain symmetry reading some of the details of the Withdrawal Agreement in Rome on a seat overlooking the ruins of the Circo Massimo and Nero’s palace. History has been in full flow this week with anaemic analogies all over the place. Dunkirk? Suez? In fact, one need look no further than Brexit I for an appropriate analogy. In November 1534 King Henry VIII of England began in earnest the first Brexit by breaking with Rome and the Catholic Church. To suggest that the first ‘withdrawal agreement’ was a tad complicated is perhaps a masterclass in English understatement. It was probably not before Cromwell won the English Civil War in 1649, or even the Glorious Revolution of 1689 before Brexit I was finally concluded. Brexit II? 

Whilst it is unlikely to take that long to confirm Brexit II reading the draft Agreement confirmed to me that this flawed deal marks only the end of the beginning not the beginning of the end of this new schism. Such moments are times for pragmatism and it would be useful if all parties to this conflict took a step back and saw Brexit in its wider strategic context. Europe stands on the verge of the Fourth Industrial Revolution and a revolution in civil-military technology that imply as much threat as opportunity. It is vital Europeans stand together in the face of such change. 

The exercising of statecraft imposes discipline and at this moment of fracture, it is to be hoped that the relationships therein are maintained and that the very process of transition/implementation introduces some much-needed calm. And, that the process itself will also lead responsible figures on both sides to recognise that the Agreement on offer will simply not stick if it continues to create resentment on both sides of the Channel. Finally, a real, equitable and sustainable political settlement will need to be fashioned.

Personal reflection 

Some months ago I was asked by someone in Downing Street very close to May for ideas. My answer was simple and to the point: Prime Minister May must show some bloody leadership! In the email to Downing Street, I also suggested that there was no way out of the Brexit trap in which Britain is currently enmeshed without a major political and constitutional crisis,. That crisis is not breaking. My specific advice was that whilst I might not like everything she does I would accept her leadership if I felt she was acting in the best interests of the country. It is my contention that given the circumstances Prime Minister May is providing such leadership.

Having dissembled for two years for the past six months she has done exactly what I asked – lead (and no I am not claiming it was my influence). She has also done things I do not like. So be it. She is the prime minister and I am not. She also continues to infuriate me at times with her lack of trust in the British people and she has made some egregious political errors which have made an already hard mission nigh on impossible. There is no other option but to give May and the Withdrawal Agreement the benefit of my very considerable doubt. There is no sensible alternative. Equally, my faith in May and the wider British government (the Mediocracy?) has been much undermined by what can only be described as strategic and political incompetence.

Julian Lindley-French