Tag Archives: Northern Ireland

Weaponising the Exit Agreement: the ongoing Irish dimension of Brexit

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

20th May 2020

Prior to the referendum of 23 June 2016, little attention was given at UK level to its possible implications for Northern Ireland. But in the wake of the ‘leave’ result of 23 June 2016, many issues that – though knowable in advance – were neglected, now became impossible to ignore. Northern Ireland is a focus for a number of complications associated with Brexit for the following reasons:

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Brexit, Transition and Ireland

by Brendan Donnelly
Director, The Federal Trust

6th May 2020

Eight months before the end of the transition period the British government seems intent upon two courses of action which will exacerbate the inevitable political and economic damage to the United Kingdom when it finally withdraws from the European treaties. The government has, first, made clear that it will not seek in any circumstances an extension to the transition period; and, second, its self-serving and implausible interpretation of the Withdrawal Agreement relating to Northern Ireland has created well-founded doubts in the EU’s collective mind about its good faith on this and related issues.

Continue reading Brexit, Transition and Ireland

Leaving one Union, dividing another: The Irish border, the exit agreement and its implications

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

22nd January 2020

In February 2018, when serving as Foreign Secretary, Boris Johnson was reported telling journalists that ‘the particular problems around the Irish border are being used to drive the whole Brexit argument and effectively to try to frustrate Brexit’. The following year, he rose to the Conservative leadership and office of Prime Minister. In bidding for this role, a central part of the Johnson campaign was his claim that he could overcome the ‘Irish border’ obstacle to UK departure from the EU, without the need for difficult concessions or compromise on the part of the UK. The course of events that followed, and the arrangement eventually arrived at to enable Brexit, suggest that there was more substance to ‘problems around the Irish border’ than his earlier assertion allowed. Indeed (and given the exclusion of the option of revocation of Brexit) there was no solution entirely satisfactory to any of the parties on offer, though the greatest difficulties were always likely to befall the UK. An issue that Johnson previously sought to dismiss may yet cause substantial difficulties for him and his government, as well as the UK and wider world.

Continue reading Leaving one Union, dividing another: The Irish border, the exit agreement and its implications

The Two Unions: Brexit and the Territorial State

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

27th April 2020

Introduction

The Brexit episode has seen the political system of the United Kingdom subject itself to immense pressures. Politics always involves tension. However, the cross-cutting divisions exposed and widened by the prospect of leaving the EU are of a more fundamental variety. Rather than arising from the regular functioning of a democratic polity in which different organised interests compete with one-another, they involve disputes within the groups taking part in those struggles. Both the main parties at Westminster, for instance, lack internal consensus over the appropriate way forward. Underpinning this dysfunction are deep-lying disagreements about the constitutional system itself. These disputes involve questions of immense importance. What should be the legal and institutional relationship between the UK and the European region of which it is a part? How should major decisions be made, and what are the respective roles for the UK Parliament, the UK executive, and the people? Who, indeed, are the people and how should their will be discerned? Recently, the public focus for such conflict has been at UK level, in Westminster. But there is also a territorial dimension, involving tensions within different parts of the UK, and their relations with each-other and the centre. Accordingly, this paper discusses the Brexit experience to date from the perspective of each of the four components of the UK – Wales, Scotland, Northern Ireland and England, and considers the overall implications.

Wales

One of the more surprising outcomes of the referendum of 23 June 2016 was that Wales produced a ‘leave’ vote, by 52.5 per cent to 47.5. Certain commentators have subsequently expressed bemusement that a territory that is a notable beneficiary of EU subsidies, and is in a relatively disadvantaged economic position, should produce such an outcome. Indeed, it was some of the least privileged areas within Wales that were most supportive of leaving. For instance, Cardiff voted 60 per cent remain, while Ebbw Vale produced a 62 per cent leave result. Those who approve of the overall outcome in Wales might congratulate those Welsh voters who were willing to prioritise the objective of freeing themselves from Brussels dominance over their personal short-term self-interest. Moreover, advocates of this position might go on, there are longer term gains to be had for Wales, as for other parts of the UK, once the post-Brexit reorientation of trading relationships has been achieved. However, it may also be that many voters in Wales, encouraged by ‘leave’ campaigners, chose to disbelieve the claimed benefits of EU membership, therefore concluding that withdrawal would have no negative impact, and would be followed by an improvement in conditions. If and when they are furnished with definitive proof that they were wrong, it will be too late for them to reverse their decision: a central problem of Brexit. There is evidence, too, that since June 2016 opinion in Wales has shifted away from support for leaving, but on present political trajectories it will not have the opportunity to express itself in such a way as to affect the outcome.

The Wales result should serve as a reminder that matters other than material self-interest seem to have played a part in the referendum. The basis on which any given individual makes such a decision is a matter for them. However, if voters are willing to choose radical options on a basis of a desire for sovereignty in one instance, they may do so in another. The argument that leaving the EU would be economically harmful and politically disruptive did not prevail in 2016. It could, therefore, also fail to quell secessionism from within Great Britain. This observation seems particularly salient in the case of Scotland at present. But it cannot wholly be excluded that, depending on how events transpire, it could become relevant at some point in the future in Wales also. Moreover, post-Brexit independence advocates will be able to present their movements as offering a path not to isolation, but to incorporation into a wider entity, the EU.

To state that Wales (or the UK) voted to leave is to accept a reductive interpretation of democracy: that a bare majority of those taking part on a given day, in support of an ill-defined proposition, is decisive for the foreseeable future, and that the opposite view, expressed by a slightly smaller number at the referendum, is no longer entitled to any representation, even if there are shifts in public opinion. Yet the Welsh government chose from the outset to accept this particular line, despite having supported the opposite outcome. In doing so, however, it presented the outcome of the Welsh vote, rather than that of the whole UK, as binding it. It might be inferred that, had Wales produced a ‘remain’ result, then – regardless of the outcome for UK in its entirety – it was not required to depart; a contradiction of the logic advanced by the UK government, with its assertion that the UK result was indivisible.

Moreover, the Welsh government argued (without success) in favour of a variety of Brexit that it felt protected the particular interests of Wales, preserving participation in the Single Market and Customs Union. The Labour administration, in conjunction with the nationalist opposition party Plaid Cymru, also used the prospect of Brexit to re-promote its pre-existing agenda for the UK constitution: that it should take on quasi-federal characteristics. Within its model, the sub-components of the UK would be provided with a more formal role in determining decisions taken on behalf of the whole, in contrast to the consultative arrangements provided for under the devolution Memorandum of Understanding (MOU) and the Joint Ministerial Committee. This agenda can be seen in part as a means of promoting the importance of Wales within the UK. But it should not be interpreted and dismissed purely on this basis. Of the different UK polities involved in the response to Brexit, only Wales has advocated a set of systemic changes that accept the logic of fundamental changes to the UK constitution in the post-devolution era; but are intended to apply to the whole Union, rather than dealing mainly with the relationship between it and the UK centre; and that are not part of a strategy of secession from the UK. The Welsh government is, after all, under the control of a party, Labour, that operates across the whole of Great Britain. Wales is the nation of the UK in which Labour consistently enjoyed the most success. However, this connection to a larger entity has not substantially assisted the Labour Welsh government in securing its goals in relation to Brexit.

Scotland

In Scotland, the 2016 referendum took place less than two years after a vote on independence. In September 2014, by a margin of approximately 10 per cent, a majority of participants chose to remain within the UK. Though secession was averted, the episode was not interpreted at the time as an indicator of or contributor to stability on the part of the Union. The result was closer than many had anticipated at the time it was first called; and one opinion poll shortly before the vote had shown a narrow majority for independence. Furthermore, in the UK parliamentary election that followed, in May 2015, the pro-independence Scottish National Party (SNP) won nearly every Scottish House of Commons constituency. Though it lost seats at the June 2017 General Election, the SNP remains the largest Scottish party at Westminster and has held office continuously since 2007 at devolved level.

The 2014 referendum provides an important context for an understanding of that of 2016 and its aftermath. It suggested that the status quo position does not necessarily enjoy the inbuilt advantages sometimes attributed to it in such votes. Moreover, a useful contrast can be drawn regarding the way in which the referendums were run. In 2014, EU citizens and those aged 16 and 17 were allowed to take part. In 2016, despite calls for this more expansive approach to be taken, they were excluded. Had these groups been permitted to participate, it is reasonable to assume that the outcome would at least have been closer, or possibly different. The only extension in 2016 to the usual franchise employed for elections to the UK Parliament was the inclusion of voters in Gibraltar and members of the House of Lords. While Gibraltarians proved resoundingly to favour continued EU membership, and Peers probably did also, they were not numerically as large as those left out by the decision not to follow the 2014 precedent. This discrepancy in the franchises used between the 2014 and 2016 referendums could be noted by any critic wishing to query the strength of the obligation created by the ‘leave’ result. But it was most obviously apparent in Scotland, where the earlier vote had actually been held.

A key argument advanced by the ‘Better Together’ campaign in favour of the continuation of the Union in 2014 was that to leave the UK would be detrimental since Scotland would as a consequence cease to be a member of the EU, and that a swift reincorporation into this supranational entity was unlikely. Aside from the debates about the veracity of this claim and the legal and diplomatic issues it engaged, the political message it presented was important. Membership of the EU was desirable, and by extension so was Scottish participation in the UK as the only means of securing the former good. The 2016 referendum reversed this premise. In Scotland, remain won by 62 per cent to 38 per cent, with every single counting area producing a remain majority. Yet the UK government was determined that the simple majority of those voting across the whole UK should be treated as decisive, regardless of territorial divergences. This circumstance created an obvious opening for the SNP – that supported EU membership for Scotland outside the UK – to revive the Scottish independence issue, and demand a further referendum sooner than might previously have seemed plausible. One of the main arguments in favour of the Union had now been removed. The will of Scotland, it could be held, was being overridden by that of the UK – and in particular, England. The only possible means of securing continued, or restored, EU membership in this context was secession.

However, though the rhetorical opportunities were appealing, the political realities were a challenge. The extent to which members of the public relished the proposition of yet another turbulent referendum campaign was unclear. Furthermore, in the months following 23 June 2016, definite evidence of a rise in the desire for independence was lacking. It seemed to remain at a similar level to that demonstrated by the 2014 vote – that is, roughly in the mid-40s. Opinion research on the way in which people who took part in both referendums had voted suggested that the SNP faced a complex task. The core upon whom the SNP could presumably rely were the 21 per cent who had backed independence and EU membership. But more support would be needed. The least fertile ground would be the 16 per cent who had voted to remain within the UK, but leave the EU; while the most hopeful group, from a pro-independence perspective, was the 28 per cent who had opted for ‘no’ (to Scottish secession) in 2014 and supported ‘remain’ in 2016. However, while targeting these voters there was a danger of alienating the 14 per cent who had chosen both Scottish independence and Brexit.

To mount a drive for independence in the context of Brexit, therefore, was more complex a proposition than it might seem superficially. Just as the surprising outright victory in the Scottish Parliament elections of 2011 had presented the SNP with both an opportunity and a threat, so did Brexit. It gave the SNP a new opening that might be helpful to it in sustaining progress towards, or even directly attaining, its long-term objective. The SNP had little choice but to seek to exploit this position, and to be seen by its supporters to do so. But there was a risk of failure, either if the idea of another referendum met with strong public resistance, or if such a vote was held and produced defeat for the SNP.

The Scottish government therefore proceeded with relative caution. At first it pressed for special opt-outs and privileges within the Brexit process that – even if they were practicable, which is far from clear – were not likely for political reasons to be provided. It insisted, for instance, that no new barrier should appear between it and the EU; and between it and the UK, even if the UK left both the Single Market and Customs Union (a familiar concept to the observer of UK-EU negotiations over the status of Northern Ireland). Unlike the Welsh Government, the initial focus of the Scottish Government was bilateral more than multilateral in nature, emphasising the relationship between Scotland and the UK, and insisting that Scotland should possess a veto on key decisions. The UK government has, as expected, not conceded to these demands, enabling the Scottish government to assert that it is being forced to call for a further independence referendum. Whether it takes place, and if so what the outcome might be, is partly contingent upon the course of the Brexit process. Overall, it seems the experience will either prove to have contributed to a break-up of the UK, or entrenched the views of the sizeable minority in Scotland who are discontent with membership of the Union. There was a reasonably high level of agreement within Scotland about EU membership. But the determination of the UK government to leave regardless could mean that this point of relative consensus will become a basis for aggravating a pre-existing fundamental division within the Scottish polity.

Northern Ireland

The Brexit episode has taken place in parallel with a distinct but related period of difficulty in the Northern Ireland peace process, with devolution suspended. Had the Northern Ireland executive not ceased to function for other reasons, the prospect of leaving the EU would surely have caused it serious problems. Overall, there was a ‘remain’ result in Northern Ireland, by 55.8 per cent to 44.2. The vote was particularly divisive because it reflected and aggravated the existing cleavage in the territory. Of those raised as Catholics, there was an 85 per cent vote for remain, and only 15 per cent support for leave. Among Protestants, on the other hand, 40 per cent voted remain and 60 per cent leave. A second way of viewing this apportionment of support, closely associated with the first, is through the prism of the view a particular individual took on constitutional arrangements. Among those who were favourable to Northern Ireland being under direct rule within the UK, 40 per cent were remain while 60 per cent were leave. Supporters of devolution within the UK split 58 per cent for leave and 42 per cent for remain. Those who wanted Northern Ireland to be incorporated into the Republic of Ireland were 85 per cent remain supporters, while 15 per cent voted leave.

The magnification of longstanding divisions in this territory is one of the most malign aspects of the Brexit experience. This regrettable outcome is compounded because of the implications for the Belfast or ‘Good Friday’ Agreement of 1998, a key element in the peace process. While the text does not expressly state that it is incompatible with the UK leaving the EU, it does not need to because the assumption that both the Republic and the UK will remain within the EU together is clearly fundamental to it. It might be held that both the Catholic nationalist and Protestant unionist communities in Northern Ireland have a shared interest in avoiding the possible return of conflict and the economic, social and political disruption that would be attendant upon an abrupt departure from the EU, with the appearance of barriers across the island of Ireland. However, the Democratic Unionist Party (DUP), currently the largest single representative of the Protestant community, is an enthusiastic supporter of leave, and of a variety that maximises discontinuity, even while it recognises the problems that would arise from the appearance of what is labelled a ‘hard border’ and insists that it wishes to avoid it. Furthermore, the DUP was opposed to the Belfast/Good Friday Agreement when introduced, and may not regard threats to this accord in the negative light that others do.

The DUP outlook has taken on disproportionate significance since the General Election of June 2017, a political disaster for Theresa May that has left the Conservative government dependent upon DUP support in the Commons. Observers of the Northern Ireland political scene have noted that the DUP contingent at the Westminster Parliament constitutes a unyielding bloc even within its own party, perhaps less directly connected to the territory it represents by being based partly in London. It is pressure from this faction within the DUP that helped force the UK government to maintain the seemingly impossible negotiating position of leaving the Customs Union and Single Market; avoiding a ‘hard border’ in the island of Ireland; and not allowing any new regulatory divergences to open up between Northern Ireland and Great Britain. The DUP has converged with Brexit enthusiasts within the Conservative Party who profess devotion to the indivisibility of the union, and regard the EU as mendaciously exploiting the Irish question as a negotiating tactic, rather than addressing genuine concern. Even without the Northern Ireland issue, May faced an immense challenge in delivering on the expectations she wilfully generated regarding the Brexit process. But, at the time of writing, it seems possible that this dilemma will be the central reason for the collapse of her programme.

England

In a sense, Brexit is an English project. England voted by 53.4 per cent to 46.4 per cent to leave. Opinion research shows a clear link between individuals identifying themselves as English rather than British and being likely to vote for departure from the EU in 2016. For those taking such a perspective, that Brexit has proved a source of instability for the Union might not be a particular concern. But England is not homogenous. In Greater London – with a larger population than any of the components of the UK discussed above – 59.9 per cent of those who took part supported remain, with 40.1 per cent voting to leave. Of 33 London boroughs, only 5 did not yield remain results. Brexit, therefore, is territorially divisive not only for the UK, but for England. Furthermore, England has no voice of its own in the Brexit process, beyond having delivered the votes that prompted the adoption of this policy. There is no English legislature or executive; and the institutional sub-units within it do not have the same status as the devolved institutions of Wales, Scotland and Northern Ireland. It is in effect subsumed within the UK. This conflation of England with the UK is a central feature of the Brexit experience, as is explored in the following section.

The United Kingdom

The general approach taken to Brexit at UK level has been to insist that the result of the 2016 referendum, despite lacking legal force, and regardless of the relative narrowness of the result (51.89 per cent to 48.21 per cent), means that the UK must leave the EU. The May government has insisted that territorial discrepancies, with ‘remain’ results in Scotland and Northern Ireland (alongside Greater London), are not relevant and that the UK should be considered as a single homogenous unit. Moreover, the UK administration has posited itself as the interpreter and custodian of the referendum outcome. It has been willing only to consult with the devolved executives over the essentials of policy, and has ultimately pursued its chosen path. Only reluctantly did the May government concede to Parliament its so-called ‘meaningful vote’, and has done its best to ensure that its meaningfulness is kept to a minimum.

Faced with this determination at UK level, the options available to those devolved executives that are operative, in Wales and Scotland, have been limited. The Supreme Court judgement of January 2017 may have seemed unhelpful to the May administration. It insisted that statutory authorisation was required from the Westminster Parliament for the UK to proceed with the Brexit process by initiating Article 50 of the Treaty on European Union. Yet Parliament proved reluctant meaningfully to deploy its revealed power; providing the Prime Minister with the authority to commence without attaching any conditions. Furthermore, as an aside to its main judgement, the Supreme Court stressed that protections against interference from the centre in areas within the scope of the devolved legislatures were not justiciable. This weakness in their constitutional status would become significant.

For a time, an alliance formed between the executives in Cardiff and Edinburgh over the way in which Brexit should be legally implemented. The combined political pressure they exerted forced the government in London to negotiate with them over this issue. Ultimately, concessions were made, allowing a greater role for the devolved institutions in the European Union (Withdrawal) Act 2018 and associated protocols than the UK government had initially envisaged. While the government in Wales accepted the terms that were on offer, the Scottish executive did not. The Scottish Parliament expressly withheld approval for the law through voting down a Legislative Consent Motion. However, the UK government asked the Westminster Parliament to proceed with passing the Bill anyway. It obliged. The Supreme Court statement of 2017 suggested that, though such a move was exceptional, there was no legal means by which it could be prevented. Whether or not a constitutional convention had been violated was a matter of opinion. The judiciary did not want to be drawn into ruling on any such dispute.

Ultimately, within the context of the UK constitution, a determined executive in Whitehall with the compliance of the Westminster Parliament can impose itself. This power balance is significant from the point of view of the way in which the UK constitution might be configured post-Brexit, and the division of authorities between the centre and the territories. There seems likely to be a disposition in favour of the former. But with regard to the position of Northern Ireland, the UK authorities found themselves negotiating with a force more powerful than themselves: the EU. Northern Ireland had no executive to represent it, and how effective it would have been over this issue had it been functioning is questionable. But the solidarity that the EU has shown to date with the Republic, and with those in Northern Ireland who do not wish to see the peace process and the benefits associated with it compromised, has proved a far more effective source of resistance. As the UK continues to pursue, of its own volition, a potentially perilous course of action, it can expect more pressure upon it from the EU, perhaps undermining its continuing existence as a state.

Conclusion

Brexit has aggravated existing disputes between those who support the continuation of the Union in its present form and those who wish to leave it. It has provided rhetorical ammunition to the latter. In the case of Northern Ireland, it presents in some sense prospects for the attainment of the long term goal of the nationalists. The island of Ireland could become more integrated and more separate from Great Britain. But there are other possible outcomes, including a deterioration in the peace process. Were the devolved system of government not already in suspension in Northern Ireland, Brexit would have taxed its ability to continue to operate in a satisfactory fashion. In Scotland too, a new potential path to independence has been opened by Brexit, but this raising of the stakes brings with it the threat of defeat as well.

The position of Wales is complex. While the governing (and non-secessionist) Labour Party (and, among others, Plaid Cymru) supported a ‘remain’ vote, 23 June 2016 produced the opposite result in this nation. Subsequently, the Welsh executive has used the circumstance of Brexit to press its already existing commitment to what it depicts as a quasi-federal constitutional approach for the UK, in which the sub-components of the Union are more fully incorporated into the taking of important decisions. It has achieved some success, but of a limited nature.

To consider England and Brexit is to reveal some of the central paradoxes of the UK constitution and of the Brexit process. Those who purport the greatest commitment to the Union often seem curiously unable to distinguish between England and the UK, treating them as interchangeable, emphasising the qualities of one or the other entity as suits the needs of the occasion. The overall ‘leave’ result for the UK rested on English votes. Among the three other components of the UK combined, there was a ‘remain’ majority, with Scotland and Northern Ireland producing decisive votes in favour of continued membership (and Wales voting ‘leave’). From the outset the UK government has been insistent that this divergence should have no significance to the interpretation of the outcome. Yet it is not clear that England necessarily benefits from this apparent privileging of its status. For the purposes of intra-UK discussions pertaining to Brexit, it has no representation of its own separate from that provided by ministers who act on behalf of the UK executive. Furthermore, opinion within England itself is heterogenous. London produced a large remain majority in 2016; and while there were leave results in all other English regions, there were divergences of opinion within them.

From a federal perspective, certain observations present themselves. While democratic autonomy has been granted to parts of the UK, it has not been balanced by the inclusion of those territories in central decision making, or a recognition that they have a significance that cannot simply be overwhelmed by the numerical superiority of England. Equally, England has been neglected in the process of devolution. Its very size relative to the whole is the chief reason that the establishment of a legislature for the whole of England would probably deliver significant difficulties and few gains. Logic suggests that regional devolution on a comparable scale to that provided to the other parts of the UK, recognising the wide internal diversity of England, would be an appropriate response to the anomalies revealed by Brexit. The English regions might then be incorporated into federal mechanisms alongside Wales, Scotland and Northern. Furthermore, Brexit has demonstrated that protections for the status of the devolved institutions, if Parliament wishes to interfere with them in some way or to alter the overall system, are weak. They rest in conventions that are open to divergent interpretation or indeed to simply being discarded. Under a federal arrangement, the position of all the units would be set out in a constitutional text. It would be subject to alteration only by adherence to a special, inclusive constitutional procedure, in contrast to the ‘unwritten’ constitution of the UK, which can be altered unilaterally by Parliament using regular legislative processes. The courts would be responsible for discerning the respective powers of the state and territorial institutions, and Parliament would no longer be the umpire in a game in which it is also a participant.

But a more immediate issue, that might forestall the pursuit of such reforms, involves the stability of the Union. The divisiveness of Brexit has two aspects in this regard. First, it has created opportunities for those seeking to secede from the UK, providing them with credible grievances and openings to act upon them. There is some congruity of outlook between this group and those who identify themselves as ‘English’ rather than British, who – according to opinion research – were far more likely to vote leave in 2016. A commitment to Englishness above all is possible to reconcile with a disregard for the continuation of the UK. But of equal significance are the divisions between those who present themselves as supporters of the Union. Among their number are both supporters of EU membership who hope at least to minimise the impact of leaving, and some of the most enthusiastic advocates of exit. Within this latter group there is a reluctance to accept the implications of their dislike of one Union for the integrity of the other, to which to they profess the strongest of attachments.

BREXIT: The Political Declaration

BREXIT: THE POLITICAL DECLARATION MUST BE VAGUE AND PRECISE AT THE SAME TIME

 

by Brendan Donnelly, Director, The Federal Trust

11th October 2018

 

The issues relating to the status of Northern Ireland after Brexit, and in particular the Irish “backstop,” have not yet been resolved. The major political and administrative challenges confronting the Brexit negotiators in this area are however relatively clear. Assuming that the major economic changes ushered in by Brexit do not take effect until 2021, how can it be ensured that these changes do not create after that date the need for a “hard border” on the island of Ireland that would jeopardise the achievements of the Good Friday Agreement? At the time of writing no answer has been found to this question that will satisfy the British government, the European Union and the Democratic Unionist Party. The terms of the problem needing solution are nevertheless well-established and elements of a possible compromise become daily more sharply defined. Continue reading BREXIT: The Political Declaration

Brexit: Heading to a Deal or No Deal while UK politics implodes?

Brexit: Heading to a Deal or No Deal While UK Politics Implodes?

by Kirsty Hughes, Director, Scottish Centre on European Relations

July 2018

 

Introduction

As EU-UK Brexit talks resumed in mid-July, the UK government’s Chequers’ statement and white paper[1] had, in theory, provided some basis for talks on the future relationship while causing political controversy at home. The white paper is a ramshackle affair: it attempts to keep the UK almost as close to the EU as it is as a member state, with the crucial exception of services, while denying that closeness and re-emphasising its red lines to Brexiters in the Conservative party and to ‘leave’ voters more widely.

But the Chequers’ agreed approach to Brexit (that preceded the white paper by a week) and the white paper itself have left the government facing considerable political unrest and disarray – with two cabinet-level resignations, threats from the Tory Brexiter backbenchers not to support the government in its declared Brexit strategy and then the government caving in to Brexiter amendments that undermine their own negotiating stance in a crucial moment on Monday 16th July. On the 17th July, the UK’s Electoral Commission then fined the official ‘Vote Leave’ campaign for illegal coordination with another group, referring some officials to police.

This unfolding chaos raises the possibility that the UK government may yet, perhaps, bring home a deal with the EU only to fail to find the votes at Westminster to ratify such a deal. Or, it may find it cannot even agree a deal – much though both the EU and Theresa May, at least, still want one. With the crucial issue of a backstop arrangement for the Irish border yet to be clarified from the UK side, and made more problematic by the Brexiter amendments of 16th July, support from the DUP as well as Tory backbenchers cannot be guaranteed either in the coming period. But the EU will not agree a framework on the future relationship without a backstop in place. With 14 ‘remain’ or ‘soft’ Brexit Tory MPs voting against the government on the Brexiter amendments – and the government’s majority falling to 3 – there is now no clear route ahead.

A politically turbulent few months lie ahead and uncertainty reigns. In the midst of this uncertainty, this paper looks at where the Brexit process has got to and where it may go in the next crucial few months to the end of 2018.  It considers the substance of the EU-UK talks and where they may go next. And it assesses both EU and UK political dynamics and where they may lead. The paper concludes with four main scenarios as to where Brexit may end up by this autumn.

 

Talks Stumble On

Earlier this year, it looked as if the Brexit talks might finally pick up speed. With the joint UK-EU report in December 2017[2] having set out key principles on the divorce bill, on EU citizens’ rights, and on how the border between Ireland and Northern Ireland could be kept open after Brexit, including through a backstop approach, there was then more progress in early 2018. In February, the European Commission produced a draft Withdrawal agreement[3] – colour-coding where there was and was not yet agreement. By March, the European Council had both provisionally agreed a transition period with the UK (or ‘implementation’ period in UK government jargon) to last to the end of December 2020, and had agreed that sufficient progress had been made to start talks on the future EU-UK relationship producing guidelines to that effect[4].

But the talks then made little progress – neither on the Irish backstop or on governance of the withdrawal agreement and with no UK proposals on the future relationship clear til mid-July.

 

The Irish Backstop Must Be Agreed

The UK initially failed to come up with its own proposals for a backstop for the Irish border at all – having rejected the Commission’s proposals in February which would effectively have kept Northern Ireland in the EU customs union and (more or less) in its single market, so requiring a border in the Irish Sea. Then, by early June, the UK finally set out some ideas on effectively keeping the whole UK in the customs union – labelled a ‘temporary customs arrangement’[5]. But not only did this proposal not address regulatory issues – vital if the border is to be open and frictionless – it also failed to meet the basic criteria of such a backstop i.e. that it could continue on a permanent basis if no other EU-UK deal had superseded it (as set out in the December joint report). It looked like a second, temporary transition period – and as such was never going to be acceptable to the EU (including to Ireland).

In the Chequers’ statement[6] on 6th July, Theresa May tried to take the sting out of the Irish backstop by emphasising that the outline proposals, agreed by the cabinet, on the future UK-EU relationship would lead to frictionless trade with the EU for the whole UK. The Chequers text insists this will ensure “that the operational legal text the UK will nonetheless agree on the ‘backstop’ solution as part of the Withdrawal Agreement would not need to be brought into effect”. The Brexiter amendments to the Customs bill now rule out a customs border in the Irish Sea, and also insist the UK should be in a separate VAT area which could cause problems even if there were a UK-wide backstop as May’s June paper suggests.

What is clear is that the EU will still demand a coherent Irish backstop in the withdrawal agreement – and the UK government will have to sign up to one soon if talks on the future relationship are to progress. There are two main ways this could be done. The first would be as proposed by the Commission – keeping Northern Ireland in the customs union and effectively the single market, so necessitating a border in the Irish Sea – the Brexiter amendment would have, somehow, to be over-ruled. The second would be for the whole UK to stay in the customs union and single market – a substantial step beyond the UK government’s early June proposal and not in line with the EU’s interpretation of last December’s joint report, where the backstop is seen by the EU as being Northern Ireland specific. Moreover, a backstop for the whole UK would, in effect, be the future trade relationship (potentially) and so, legally, for the EU cannot be agreed through a Northern Ireland protocol nor through the withdrawal agreement. The former option, even with May insisting it would never be used (and now with the amendment), would probably mean the loss of DUP and Tory Brexiter support at Westminster while the latter would enrage even further the Tory Brexiter MPs.

May is, it seems, banking on the EU-UK framework on the future relationship stating that frictionless borders are possible – so helping the DUP and Tory MPs swallow whatever Irish backstop finally is in the withdrawal agreement. It’s a big gamble that looks unlikely to  pay off given the turmoil in the Conservative party. The EU’s chief negotiator Michel Barnier has insisted repeatedly that the only way to ensure frictionless borders would be for the UK to stay in the EU’s single market and customs union[7].

Yet the closer May moves to this, as the Tory reaction to the white paper shows, the tougher the politics gets. May faces a catch-22, if she moves towards a ‘softer’ Brexit she loses DUP and Brexiter votes, if she moves towards a ‘harder’ Brexit she will lose the Tory ‘soft’ Brexit rebels – and unless she combines a ‘hard’ Brexit with a Northern Ireland backstop she won’t get a deal with the EU.

And if the UK really were to stay in both the single market and customs union, then there would indeed be no point to Brexit at all. So the path to a political declaration on the framework for the future relationship and to a withdrawal agreement – ratified by Westminster, the European Council and the European Parliament – looks very rocky indeed.

 

The Future UK-EU Relationship

In various speeches since autumn 2016, Theresa May has set out repeatedly the red lines she insists must not be crossed as the UK leaves the EU[8]. Yet, until the publication of the white paper in July 2018, there was a complete lack of clarity of what sort of relationship the UK government did want. This incoherence was driven entirely by the deep divisions in the cabinet between those, like Chancellor Philip Hammond – and May herself – who wanted to stay close to the EU and those, like Michael Gove and Boris Johnson (before his resignation) who wanted a ‘hard’ Brexit.

The EU set out its own red lines in the form of various guidelines in April and December 2017 and in March 2018[9] and followed by more detailed negotiating directives. These made it clear that there is little ‘in-between room’ between a Norway and a Canada option, meaning getting the divided cabinet to agree was always a tough call, even before Brexiter rhetoric and positions also made it clear that their positioning is more ideological and emotional than rational.

In the face of the UK’s political incoherence and failure to produce clear negotiating positions, in December 2017, Michel Barnier made a high impact, succinct intervention in the form of a slide, that showed how the UK’s red lines ruled out all options – from EU membership, to the European Economic Area, to Swiss and Ukraine-style deals to a Turkey-style customs union – except for a Canada-style trade deal[10].

So the EU has made it clear that the UK cannot have all the benefits of a Norway-style EEA deal with the much lower obligations of a Canada-deal (and even for a Canada-style deal, the EU would be determined to ensure a level-playing field on regulatory standards). Yet in its endless debates and divisions over policy, the UK government has desperately tried to find some mid-way position that does just that. And it is that which has, therefore, led to repeated descriptions of UK positions (such as they are) as ‘cherry-picking’ and ‘cake and eat it’ – or as fantasy, magical thinking and more.

 

The UK White Paper

The UK white paper represents a quite extraordinary effort to keep the UK extremely close to the EU across trade, socio-economic and security issues while attempting to insist red lines are not being crossed. It is a tangled, Heath-Robinsonian effort that has already failed in one of its aims of placating Tory extreme Brexiters. And the EU will not and cannot accept it in its current form.

In many ways, in fact, the white paper looks like a detailed UK-wide version of the Northern Ireland backstop the Commission proposed in February, underlining it was not available for the whole UK. Yet  while many commentators are declaring the white paper dead on arrival, given the turmoil of the last week, as the autumn deadline approaches, it is the only current basis for talks with the EU to continue – so it remains important to analyse its approach.

EU negotiators and politicians have so far been cautious in their responses to the white paper, not least given the political instability in the UK. The EU would rather get to a deal than ‘no deal’ – and if talks can now move forwards on the future framework, and on the Irish backstop, then an autumn agreement is not impossible. Two key questions are how much further the UK government will move towards meeting EU positions as set out in their guidelines, and how much the EU may fudge the political declaration on the framework for the future relationship to allow an autumn deal, since the serious talks on that relationship will only start once the UK has left at the end of March 2019.

Theresa May’s introduction to the white paper sets out succinctly her key red lines: the UK will not stay in the single market or customs union, free movement will end as will the jurisdiction of the European Court of Justice (ECJ), the UK will leave both the common agricultural policy and the common fisheries policy, it will stop sending ‘vast’ sums of money to the EU, it will have an independent trade policy, and it will solve the Irish border issue through the future relationship, and last but not least it will return sovereignty and accountability to the UK, to Westminster and the devolved assemblies.

But the white paper then immediately gets into the tortuous paths (crossing many of these red lines) that could ensure frictionless borders for goods and agri-food products, including through following a common rule-book i.e. an EU rule book, for goods and agriculture (though not for agricultural policy as such), through staying in a myriad of EU agencies and programmes and through a ‘facilitated customs arrangement’. Services and investment get the short straw in the white paper since, if they were to follow the EU rule-book too, the game would be up and this would be the UK asking to stay in the single market and something close to the customs union though without free movement of people.

What is most striking about the white paper is not its varied attempts at cherry-picking – most obvious in the UK wanting to stay in the EU’s single market for goods and agriculture but not for services, capital or people – but how much of current arrangements it attempts to replicate. From the single market for goods to research to judicial and security cooperation, from development aid to personal data, from customs to transport (of all types), the vast effort needed to more or less replicate the existing deep, complex and varied rules, laws and policies that are today’s EU is extremely clear. It’s also a little reminiscent of how the EU – in the face of the rejection of its draft constitutional treaty in 2005 (in referendums in France and the Netherlands) –  rewrote that draft into a more technical, tortuous form that became the Lisbon treaty, preserving the main elements of the constitutional treaty. The UK, though, looks much less likely to get away with its ‘Heath-Robinsonian’ manoeuvre, as the politics of the last week shows.

It is also noteworthy how the white paper proposes a future structure for the EU-UK relationship similar in outline to one set out in another succinct table by Michel Barnier in May this year[11]. In proposing that the relationship may take the form of an Association Agreement (which the EU has with several countries, including Ukraine, and which the European Parliament has emphasised as a desirable structure), the white paper also attempts to draw on existing approaches in existing EU deals with the EEA and EFTA, with Ukraine, and with third countries like Canada[12].

In his May slide, Barnier suggested a four-pillar structure for the future relationship: trade (a Canada-like deal including customs cooperation and a deal on fisheries); socio-economic cooperation (including mobility); police and judicial cooperation in criminal matters; and foreign, security and defence matters. The UK’s white paper proposes a three pillar approach: an economic partnership, a security partnership (judicial and foreign policy cooperation put together into one pillar), and cross-cutting cooperation – with most agreements to be within the overarching association agreement structure. It looks similar but there are crucial differences – not least the big attempt to stay in the single market for goods, albeit called a free trade area for goods.

 

Challenges in Getting to a Deal on the Future Framework

There will be challenges aplenty in getting to an agreed EU-UK framework for the future relationship given the UK’s white paper even without the chaotic instability of UK politics.

Customs: The ‘facilitated customs arrangement’ that May proposes – and that is very similar to one the UK proposed a year ago, dismissed back then by the EU – is a heroic effort to act ‘as if’ the UK and EU were a combined customs territory (helping to ensure frictionless borders) while also having the ability to run an independent trade policy. The UK would operate a system of tariffs whereby it would ensure goods (including agri-foods) coming into the UK would be charged EU tariffs if the EU were their final destination and UK tariffs if the UK is the destination. Companies would be able to claim back having paid higher tariffs if their products were mis-classified – the white paper suggests 96% of trade would not need to make any such claims. One of the Brexiter amendments also intrudes here as it insists the UK can’t collect tariffs for the EU, unless the EU reciprocates. But with the EU unlikely to accept this rather tortuous customs proposal, Brexiter amendments here may matter less.

The white paper admits that the technology and processes for the facilitated customs arrangement would take time to deliver – and aims for the end of the transition period i.e. by January 2021. It is less clear on the implication of that which presumably is that the UK would, in the meantime, stay in the EU’s customs union. The European Parliament Brexit steering group – which rapidly issued a statement welcoming the white paper – also concisely warned “In this framework [for the future relationship], there will be, for example, no space for outsourcing EU‘s customs competences”[13].

Nor, as Donald Trump pointed out on his recent UK visit, will it be easy for the UK to agree separate trade deals, even if the EU accepted this fantastical customs proposal, since it will, according to the white paper, be signed up to EU laws and regulations for goods.

Following the EU’s Rulebook: Theresa May lost two ministers and other junior players in her shift towards a ‘softer’ Brexit for goods, yet she has at the same time moved to appease the Tory Brexiters through accepting their four amendments to the Customs bill on 16h July. It’s a contradictory and shifting approach – hardly the basis for serious talks. The white paper proposal to have a common rule-book for goods and agri-foods means following EU laws without any longer having a vote – also anathema to the Brexiters. And the white paper sets up a democratic deficit of the sort the EEA countries face. If the UK were to also stay in the EU’s customs union, it sets up an even bigger democratic deficit.

But the UK’s proposals also shift around on exactly what the UK may or may not follow. The common rules will only apply to goods where necessary for frictionless borders – so, for instance, food labelling regulations need not be the same claims the white paper (which the EU surely will not accept). The white paper recognises that the EU wants to be sure the EU will not compete through deregulation: it suggests ‘no regression’ clauses for environmental and labour laws (skirting round the decision-making role of the devolved assemblies in the former) while simply offering ‘high standards’ for climate change and consumer protection. The EU will want something tougher than that – or it could face the UK lagging behind as it upgrades its own standards.

The white paper also desperately attempts to argue that following EU rules does not make the UK a rule-taker by suggesting the UK parliament (and devolved assemblies) could reject EU laws with some sort of penalties then attached – in the EEA case, the penalties attached have led to Norway never doing this. This is, clearly, the opposite of taking back control: it’s a relinquishing of sovereignty – and both remainers and Brexiters (if not ‘soft’ Brexiters) are clear on this, adding to the challenging political dynamics May faces.

The EU is highly unlikely to accept the sort of cherry-picking of the single market’s four freedoms that is inherent in the white paper’s proposal on common rules for goods but not services. And the UK’s mobility framework – only sketched out – is not a free movement proposal in disguise (or not so far, as the white paper suggests something similar could be offered to other trade partners in future too). The fact that the UK wants a self-harming ‘hard’ Brexit for services is no reason for the EU to give up on its clear position on defending the integrity of the single market across the four freedoms.

But there is plenty here that could potentially be discussed not least on ensuring a level-playing field. The UK suggests there could be a common rule-book too on state aids (while then suggesting that wouldn’t stop it having ‘new tailored arrangements’ for payments to farmers and the UK’s future public procurement policy). The EU will be tough on such exceptions.

The UK also wants to remain part of, or associated to, a whole myriad of EU agencies, programmes, and databases which will give the negotiators plenty to discuss. Red lines are dropped all over the place in the white paper on this – the UK will pay for access, it will respect ECJ oversight if it is in agencies and so forth. But it also wants ‘cake and eat it’ here too. For some associations with EU bodies, it wants to be treated like other third countries, but for many, it wants the EU to go beyond what it has offered to any other third country. The EU may offer some compromises here but certainly not to anything like the extent the UK is requesting.

The UK, the white paper says, wants to be in EU agencies for chemicals, medicines and aviation. It wants to be in Eurojust and Europol – on better terms than other third countries. It wants to be in the Galileo space programme – including its high security parts (already rejected by the Commission). The list of programmes, bodies and databases the UK wants to be in or close to accumulates through the white paper and is very long: Erasmus plus, Horizon Europe, a close association with Euratom, the European health insurance card (Ehic), ‘continued membership of EU cultural groups and networks’, pooling of development aid resources and exchange of expertise (with appropriate UK influence and oversight), collaborating in European Defence Agency programmes, perhaps even staying in the EU single energy market (or perhaps not – the white paper considers both), access to the exchange of criminal records database, cooperation agreements on science and innovation, air transport, road and maritime transport (and the European Maritime Safety Agency) and many more (the list here is illustrative not comprehensive). The detail in the chapters on judicial and foreign policy cooperation add up to a UK goal of recreating almost all of what already happens in those two broad policy areas. So this is an attempt at a massive, imitative set of policies that ensure rather little changes.

Services: The white paper claims that the government’s proposals will protect jobs and support growth. Yet it proposes that for services, including digital and financial services and products, the UK will not follow a common rulebook and so will have less access to EU markets – and vice versa. About 40% of the UK’s trade with the EU is in services, and the UK has a surplus in services with the EU unlike in goods. So the white paper proposals mean cutting market access for UK services in the UK’s more competitive part of the economy (which is also 80% of the economy).

The UK claims to want regulatory flexibility to encourage services growth. But the EU will not only reject cherry-picking of its single market, it will also not go along with free-for-all regulatory competition in services. There is more ‘cake and eat it’ here too. The UK wants freedom and flexibility but it still wants access. It wants better, broader and more permanent ‘equivalence’ deals with the EU than the EU currently has with other third countries in financial services. And it also wants to maintain mutual recognition of professional qualifications and the ability for service providers to travel to other EU countries to supply services (going substantially beyond the Canada trade deal). For digital services, the UK wants a range of agreements to cover digital trade and e-commerce, broadcasting, technology and telecoms.

The white paper does not address the fact that goods and services are often highly integrated. Nor does it consider any of the estimates of the fall in UK-EU trade in services that would result from leaving the single market (one estimate puts it at a massive fall of 61% (ref Ebel)[14]. Overall, the white paper aims for frictionless trade in goods where it has a deficit and to introduce frictions in services where it currently has a surplus – if implemented this would mean a substantial worsening of the UK’s current trade deficit with the EU. And if the EU sticks to its Canada deal as its best offer on services so far, there will be a big gulf to cross between the UK and EU negotiating positions.

Fisheries: On the sensitive subject – domestically and for the EU – of access to fishing waters, the white paper is brief. It proposes annual talks “on access

rights and fishing opportunities for UK, EU and coastal state fleets”. The EU’s opening position is that it wants to maintain current levels of access and that a deal on trade in goods and services will need to encompass access to fishing waters too. For both sides, this is a substantive and a neuralgic issue which will not be easily resolved.

Overall: The white paper makes strikingly clear the depth and breadth of cooperation that the UK currently has with the EU as a member state – and the vital need for the UK to replicate most of it as it leaves. Faced with this extensive list of proposals – some that will be straightforward as other third countries have such relationships with the EU and some that will be difficult (restricted to EU and/or EEA members), some that are cherry-picking, others that are unrealistic – the question jumping out of the white paper is why the UK is leaving the EU at all, only to replicate in cumbersome fashion most of the existing structures and relationships.

That question is unanswered but the range of proposals illustrate only too clearly why the full talks on the future relationship will take some years after Brexit has happened. There will not be agreement on all of this ahead of the political declaration on a framework for that relationship. Nor does the white paper mention the possibility that the transition period to the end of 2020 may very probably need extending – something that will need to be in the withdrawal agreement if it is to happen. Perhaps May will aim to introduce it at the last moment (given the predictable Brexiter howls of outrage it would provoke).

The EU will not agree the white paper overarching proposal as it stands though it will have no trouble with the principle of an association agreement. But the EU could not countenance the sort of cherry-picking of the single market involved nor the facilitated customs arrangement, both as it is fantastical and as it would outsource the control of the EU’s external trade border. If the EU and UK move towards a deal that is effectively a customs union – perhaps with a different name – that will mean the UK effectively following EU trade policy, even if some deals on services or with countries the EU doesn’t have trade deals with may be possible. But this will still not ensure frictionless trade if the UK is not also offering free movement of people or services however closely aligned on goods rules the UK is. So the EU will push the UK’s proposals towards one of its models, and the more ground May gives, the deeper her political troubles within the Tory party will be.

 

Getting to the Autumn

Few think that a deal can now be wrapped up by the EU’s October summit on 18-19th October – many doubt if a deal can be reached at all. But whether there is an emergency summit in November or a final deal is struck at the December European Council, the end of the year is probably the limit to allow time for ratification by the European Parliament, Westminster and the European Council before 29 March 2019.

To get to a deal, the withdrawal agreement must be finalised. That means agreeing a credible, permanent (if needed) Irish backstop and an acceptable governance mechanism for the agreement. It also means agreeing the text of the framework outline of the future relationship. This framework will, it is expected, be referenced in the withdrawal agreement – but while it will set the starting point for future trade and security talks it cannot bind the two sides to a final deal. That will still need to be negotiated after the UK leaves.

Unstable UK Politics: UK politics is currently highly unstable and may not be able to deliver either a deal or a way forward if there is a deal but Westminster rejects it. Conservatives on both sides – as well as politicians from other parties – are lining up to reject the Chequers/white paper approach. For the Brexiters, the proposal is a sell-out even before more substantial concessions are made that will be needed for any deal – and their ‘win’ on their four amendments will have shown them they have no reason to compromise. A string of low-ranking Tory parliamentary private secretaries and other junior posts have resigned (mainly Brexiters though one resigned to vote with government policy as it was before May accepted the amendments). But the Brexiters have not necessarily got enough votes to force a leadership election and more importantly not enough votes to win one. On the remainer side, former minister Justine Greening has come out for a further EU referendum – proposing a complex three-option vote[15]. Dominic Grieve MP has argued that if Westminster cannot support any deal then it may be time to “accept that Brexit cannot be implemented and think again about what we are doing”[16]. All of this also happened on Monday 16th July, perhaps the day when the Brexit process imploded in irrecoverable ways.

For other remainers and ‘soft’ Brexiters, the Chequers/white paper proposal is  a mixture of too complicated and tortuous, unrealistic, undesirable and for the remainers too undemocratic, leaving the UK as a rule-taker across so many areas. For the ‘soft’ Brexiters, less concerned at the serious democratic deficit, the white paper is an unnecessarily ramshackle affair when the clearer structures of the EEA and a customs union are possible and guarantee frictionless borders where the white paper’s semantics will not.

The Conservatives bitter divisions make their implosion over EU policy, 20 years ago in the run-up to the 1997 general election, seem minor in comparison. Yet the opposition, particularly from Labour, is not rising to the moment. One recent poll puts Labour ahead of the Tories – 40% to 36% – but only as some Tory voters move back to UKIP[17]. Jeremy Corbyn has stuck to his position of supporting Brexit for the last two years and is failing to hold the Conservative government to account even as it descends ever further into infighting and instability. As a result, UK politics is in many ways failing deeply.

And while the Labour policy of supporting a customs union with the EU is much clearer than the facilitated customs arrangement Tory proposal, Labour is now vaguer than May on how it wants to relate to the EU’s single market. Both Tories and Labour reject free movement of people, and Corbyn does not want to agree to the EU’s state aids rulebook, which the white paper concedes. Given Labour’s concerns about northern leave-voting constituencies, and given Corbyn’s own eurosceptic leanings, Labour has not, either, adopted the position of supporting a further EU referendum or people’s vote. The LibDems have long pushed for ‘a people’s vote’ on the deal (assuming there is one) while the Scottish National Party (SNP) have demurred on such a vote, not least concerned at the precedents it might set at the time of a second independence referendum, while saying they would not block such a proposal, not exactly a ringing endorsement[18].

‘No Deal’ still possible: The path to the autumn looks rocky and highly unpredictable. ‘No deal’ remains a possibility. If May continues to make concessions to her Brexiter backbenchers and so moves away from a ‘softer’ Brexit rather than towards it (as the EU will demand) then any outline framework for the future relationship will look more like a Canada-style deal than a Norway one. But that will put the Irish backstop centre-stage. A backstop that applies only to Northern Ireland, with a border in the Irish Sea, would lose DUP and a chunk of Tory support – but has anyway now been ruled out by the Brexiter amendments to the Customs bill that passed on 16th July. But the other option of a backstop that leaves the whole UK in the customs union and single market will result in Tory Brexiters opposing it and may not be agreed by the EU. And while some Labour MPs, LibDems and SNP might support a customs union and single market backstop, they wouldn’t vote for a deal that included a ‘hard’ Brexit framework for the future relationship.

Will any deal pass at Westminster? If May does manage to conclude a deal with the EU and find a way through the political minefield she is in, then it may well not pass at Westminster. Current conventional wisdom is that this is the most likely i.e. that there is no deal that will obtain a majority. But if the Tory Brexiters come back on board – to ensure Brexit happens – and if the DUP are on board, and a handful of Labour rebels (pro-‘hard’ Brexit – four Labour MPs voted with the Tories on the Brexiter amendments on 16th July) then it’s not impossible that a deal may pass. For now, though, it looks hard to see what that deal would look like . However much Brexiters want to get to 29th March 2019, a deal that could keep the UK in the customs union and single market in perpetuity through the Irish backstop would be hard to swallow for them.

Crisis if deal rejected: If Westminster does not pass an agreed EU-UK deal, or if the UK government fails to deliver one, the UK will be facing a major and extraordinary political and economic crisis (even more than it already is). In such circumstances, it is quite likely that there will need to be a general election (even given the constraints of the fixed term parliaments Act) and pressure may rise to hold a further EU referendum.

For now, polls suggest that a new election might not resolve such a crisis. It’s possible that a minority Labour government could come out ahead of the Tories, able to govern if it got support from LibDems and  SNP. But the likely price of a further EU referendum, from the LibDems, and a further independence referendum, from the SNP, might be too high – if not, then a further EU referendum would finally be on the cards. It’s possible too that public opinion on Brexit could swing more sharply in such a crisis towards remain. There has been a small but steady swing to remain over the last year[19]; a bigger shift, towards the high 50s or even to 60% might transform the political dynamics. But in the absence of that, the UK’s political instability would quite likely continue.

Stay in the EU? If there were a further EU referendum – whether on a deal, or a repeat vote in the absence of a deal – this might lead to a divided UK choosing to stay in the EU. But then the challenge of revoking Article 50 would arise. Legal opinion varies as to whether the UK could unilaterally revoke Article 50. But, politically, the UK would need the support of the EU27 to end the Brexit process. That may not be forthcoming. If the UK looks like it has taken a sharp turn both politically and in public opinion back towards the EU, there may be a way forward.

But if a turbulent UK voted marginally to remain in a further EU referendum, there may be considerable reluctance on the EU side to accommodate that. It may also be difficult to win a second EU referendum if the EU are not onside, offering the UK to return, and if Labour as a party are not campaigning for remain, and if the government of the day (of whatever composition) is not fully supporting it. Given the time it would take to organise such a vote, the UK would surely need to ask the EU to extend Article 50 (as they would be under pressure to in the event of ‘no deal’). This needs unanimity of the EU27 but cannot be ruled out – even though it would also need the UK to participate after all in the 2019 European Parliament elections.

 

Scenarios

With UK politics, in particular the politics of the Conservative party and government, fracturing more deeply day by day, the way ahead looks highly uncertain and unstable. The March 2019 deadline looms. But, broadly, there are four main scenarios as to where we may get to by the autumn.

Scenario One: Brexit Goes Ahead

If Theresa May strikes a deal with the EU and it passes at Westminster – and at the European Parliament and European Council – then the UK will be set to leave the EU on 29th March 2019. This would mean an Irish backstop has been agreed as part of the overarching withdrawal agreement and a political declaration setting out the framework for the future relationship was also agreed. In such a scenario, either the Tory Brexiters and remainers have all stayed on board and voted for May’s deal or, much less likely, some opposition party votes have helped May through. The extent of economic damage to the UK and the extent of democratic damage through becoming a ‘rule-taker’ will depend on the deal – but there is no harmless deal to be had either economically or politically.

Scenario Two: Deal Falls at Westminster

If May strikes a deal with the EU that is rejected at Westminster, then the UK will face a major political and economic crisis with substantial turbulence in stock markets and the pound likely to fall sharply. A general election may need to be called rapidly – perhaps to take place in early 2019. Meanwhile, the government should then ask the EU for a delay in Article 50 – which in the face of a chaotic ‘no deal’ Brexit, the EU may agree to. Either as an alternative to a general election or possibly following a general election, there may be increased public and political pressure for a further EU referendum.

Scenario Three: No Deal with the EU

If May is unable to shift closer to EU positions, and at the same time to agree an acceptable Irish backstop, then there may be ‘no deal’ for Westminster to vote on. Both sides will want to avoid such a chaotic outcome and the question of extending Article 50 may come up if there is no agreement on a deal by the end of 2018. In the face of ‘no deal’, there will be pressure from the public and at Westminster for a solution to the ensuing crisis – whether for a general election, a further EU referendum or a new negotiating approach to the EU.

Scenario Four: the UK stays in the EU

This scenario could result from a range of developments. Depending on how turbulent UK politics becomes in the coming weeks and months, there might be a majority (where there isn’t now) at Westminster to hold a further EU referendum – whether a repeat referendum or one on a deal if it has been struck. Or, such a referendum might be a condition of LibDem support for a minority Labour government after a general election – though it would probably need SNP support for such a position too. Public opinion might shift sharply towards ‘remain’, both increasing pressure for a further vote and leading to a clear ‘remain’ result in such a vote. Political divisions in England in particular would nonetheless continue. Politically, the EU would need to support such an outcome.

Overall, it is clear that unless May produces a deal that gets backing at Westminster, then political volatility and divisions will continue probably resulting in a general election and a request to extend Article 50 and possibly a further EU referendum. If a deal does pass at Westminster, the UK will be embarking on a path towards marginalisation in Europe, to less global influence, and to economic self-harm. Domestic political divisions would continue as EU-UK talks moved onto the future relationship – and as the Irish backstop remained as one possible route ahead. In Scotland, pressures for a further independence referendum would probably grow. Staying in the EU looks like the sanest path but political divisions in England in particular would remain deep. There is no easy escape route for the UK from its turbulent Brexit path – and the English populist genie that the 2016 referendum let out will not easily go back in its bottle.

 

[1] “The Future Relationship between the United Kingdom and the European Union”, HM Government, Cm 9593 12 July 2018

[2] EU-UK Joint Report on Phase 1 of Brexit Negotiations, 8 December 2017

[3] “European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” 28 February 2018.

[4] “European Council (Art. 50) guidelines on the framework for the future EU-UK relationship”, 23 March 2018

[5] “Technical Note: Temporary Customs Arrangement” HM Government 7 June 2018

[6] “Statement From HM Government” Chequers, 6th July 2018

[7] See, for example, ‘Speech by Michel Barnier at the European Economic and Social Committee’ Brussels, 6 July 2017

[8] See, for example, “PM’s Florence speech: a new era of cooperation and partnership between the UK and the EU” 22 September 2017, and “PM speech on our future economic partnership with the European Union” 2nd March 2018

[9] ‘European Council (Art. 50) guidelines following the United Kingdom’s notification under Article 50 TEU’, European Council (Art 50), 29 Apr 2017; ‘European Council (Art. 50) guidelines for Brexit negotiations’, 15 December 2017, and ‘European Council (Art. 50) guidelines on the framework for the future EU-UK relationship’, 23 March 2018

[10] Slide, ‘Future Relationship’, presented by Michel Barnier, European Commission Chief Negotiator, to the Heads of State and Government at the European Council (Article 50) on 15 December 2017, TF50 (2017) 21, published 19 December 2017

[11] Slide on the EU/UK Possible Framework for the Future Partnership Discussions. TF50 (2018) 37 – Commission to EU 27, 15 May 2018

[12] For a clear analysis of where the white paper draws its ideas for enforcement and dispute settlement from, see: Institute for Government: “The PM’s Brexit white paper: what does it mean?” 13 July 2018

[13] “Statement by the Brexit Steering Group on UK government White paper”, European Parliament, 12 July 2018

[14] “Will New Trade Deals Soften the Blow of Hard Brexit?” Monique Ebell, 27 January 2017, NIESR blog

[15] “Justine Greening endorses second Brexit referendum” Guardian 16 July 2018

[16] “If we can’t work together on a deal we must rethink the whole idea of Brexit” Dominic Grieve, Evening Standard 16 July 2018

[17] Opinium, ‘Political Polling’ 10th July 2018

[18] “Scotland’s Brexit Choices” Kirsty Hughes, 16 July 2018, Europe’s World blog

[19] See https://whatukthinks.org/eu/questions/in-highsight-do-you-think-britain-was-right-or-wrong-to-vote-to-leave-the-eu/?removed

 

 

Brexit: Irish realism meets British wishful thinking


by Brendan Donnelly, Director, The Federal Trust

22nd May 2018

 

 

The Irish strand of the current negotiations between the UK and the EU presents a rich case study in the delusions and dilemmas of Brexit. It is difficult to think of any other area of the negotiations which more neatly encapsulates the failure of the Brexit reality to correspond with the predictions and assumptions of the “leave” camp in 2016. Continue reading Brexit: Irish realism meets British wishful thinking

Ulster and Brexit: The shape of things to come


by Brendan Donnelly, Director, The Federal Trust

5th December 2017

 

Even during the European referendum last year it was clear that those who wished the UK to leave the European Union fell into two quite different camps, those who wanted Brexit to mark a decisive break in the economic and social life of the United Kingdom; and those who wanted Brexit to take place with minimal social and economic disruption. This division has become more pronounced in the months since the referendum and is at the heart of the current controversy over the Irish border. This particular controversy may be resolved in such a way as to permit movement towards the second phase of Brexit talks at the European Council on 14th December. The fundamental divisions within the pro-Brexit camp can however only become more obvious and more acute in this second phase of negotiations. The debate over the Irish border may well come to be seen in retrospect as simply a precursor of other even more intractable dilemmas thrown up by the self-contradictions of the whole Brexit project. Continue reading Ulster and Brexit: The shape of things to come

Northern Ireland Elections: Warning Light For May’s Brexit Plans

Northern Ireland Elections: Warning Light For May’s Brexit Plans

 

by John Palmer on 8 March 2017

 

This article was first published on Social Europe.

The British prime minister, Theresa May, does not take time off from her responsibilities in London to travel to Scotland – even to address the conference of the Scottish Conservative party – without good reason. Of course, she has every reason since, unless she treads very carefully indeed, the United Kingdom’s threatened departure from the European Union could trigger a new Scottish independence referendum that could blow the 310-year-old Union apart.

However, May’s problems with the UK’s Celtic minorities are set to get a great deal more serious following the dramatic results from the elections to the Northern Ireland Assembly last weekend. For the first time, losses suffered by the fiercely pro-UK Democratic Unionist Party (DUP) has left it with only a single seat lead over Sinn Fein, the all-Ireland republican party, which wants an end to the partition of Ireland.

Even more significantly, in another historic first, the pro-UK Unionists of all parties no longer command a majority in the Assembly. The election result comes at a time of enormous significance not only for the future of Northern Ireland but of the imminent start of the Article 50 withdrawal negotiations between the UK and the EU.

As part of the 1998 “Good Friday” peace agreement which ended the latest phase of armed struggle between Irish republicans and the British state, the government of Northern Ireland has to be shared between the main pro-Union and the main Irish national parties. But the latest election was necessary because of the fall of the governing executive – run by the DUP and Sinn Fein in coalition – over a public heating supply scandal allegedly implicating the DUP leader and First Minister, Arlene Foster.

Sinn Fein has said it will not join a government led by Ms Foster until a current inquiry into the scandal has exonerated her from any responsibility. The DUP will not agree to any other leader. The deadlock could now lead to the re-imposition of direct rule from London for Northern Ireland – something that both British and Irish ministers are desperate to avoid.

The politically explosive character of this crisis has been intensified as a result of the Brexit referendum. Although the UK as a whole voted narrowly to leave the EU, Northern Ireland (like Scotland) voted decisively to remain. Such a result was only possible because a significant number of Unionists joined Sinn Fein and other nationalist voters in backing continued EU membership.

The political temperature has been further increased because the British government has – so far – been unable to give any serious response to the question: “What happens to the border which divides Northern Ireland from the Republic of Ireland after Brexit?” More or less everybody (including ministers in London) want to leave the open border open, but in the case of London the qualification is “as far as possible.”

This seems, in practice, to come down to keeping customs control checks on the huge amount of daily trade movements across the border to a minimum. Dublin, Belfast and London know that a re-imposition of a ‘hard border’ would be a tempting invitation to dissident IRA factions to treat border customs and security institutions as a target for a renewed armed campaign.

But what of the free movement of people from the Irish Republic – which will of course remain an EU member– and Northern Ireland which could be outside the Union in, say, mid-2019? How can an open border be reconciled with the much-publicised boast of UK ministers that they will “Bring Back Control!” of immigration to the UK?

One possibility might be to introduce passport controls between Northern Ireland and mainland Britain even though both territories would be part of the same British state. This would be anathema to hardline Unionists and might even trigger unrest in that community as well as among Irish nationalists. Instead, the government may give up checking physical movements from the south to the north of Ireland and hope to pick up workers going into jobs on the British mainland via new social security checks.

One thing is clear: the question of the re-unification of Ireland is now back on the agenda. This is not only the demand among Sinn Fein and other Irish nationalists in Northern Ireland, it is being echoed by mainstream parties in the south. For the moment, a new referendum in Northern Ireland about ending the partition of the island seems unlikely – but it may in the end be unavoidable.

The Irish government is understandably alarmed by how things might get dangerously out of control as the hour of Brexit slowly approaches. Government ministers and officials have sent clear warnings to London that a ‘hard border’ across Ireland is not only economically disruptive but politically dangerous.

But if the Article 50 process leads to anything remotely resembling a “hard Brexit”, which ardently Eurosceptic, right-wing Conservative MPs would prefer, then tensions over the Irish border and pressure for the unification of Ireland would reach boiling point. May already knows that the loss of Scotland from the UK remains a real political risk.

For the British Tory government to ‘lose’ Scotland would look like real carelessness. If Northern Ireland was to leave the UK as well, the repercussions could trigger a fully blown British constitutional crisis – over and on top of the inevitable economic and social convulsions triggered by a final Brexit.

 

About John Palmer

John Palmer was the European Editor of The Guardian and then Founder and Political Director of the European Policy Centre. He is a Visiting Practitioner Fellow at Sussex University’s European Institute and a member of the Council of the Federal Trust in London.

 

BREXIT: The Northern Irish dimension

Brendan_Donnelly

 

by Brendan Donnelly, Director, The Federal Trust

 

This article was first published on the LSE BrexitVote blog.

Much concern has already been expressed by some British commentators  about the possible implications for Scotland of a vote for the United Kingdom to leave the European Union on 23rd June. Less comment has until now been directed, at least on the British mainland, to the implications of such a vote for Northern Ireland. Commentators and politicians in both halves of Ireland have been less reticent. The former Irish Prime Minister, Bertie Ahern, recently warned that a British decision to leave the Union would be “negative in every way” for Anglo-Irish relations, in particular for exchanges between Northern Ireland and its southern neighbour. Continue reading BREXIT: The Northern Irish dimension