This article was originally written as a blog post.
The Withdrawal Agreement is dead. Thrice rejected by Parliament, it forced the resignation of Theresa May. It cannot be brought back.
It was not all bad – but the drops of poison fouled the whole batch. Cut those parts out or neutralise them and it could be signed tomorrow. Boris Johnson, the hope for a hard exit, has said in interviews that he would gladly agree the acceptable bits (so no one should portray his bid for the top job as a yahoo no-deal fantasy).
The shape of Mrs May’s Agreement
The bulk of the Agreement is innocuous, and the Transition Period short, if it is not extended. The problem points are brief but cut deep. However these points are the ones of least import to the European Commission.
If common sense prevails, a compromise is eminently possible, but common sense rarely does prevail and the Commission have said there will be no negotiation. They would say that though, and up to now they have had their way, and they have been able to rely on their co-conspirators in the House of Commons to undermine any negotiating position the Government takes. That position may not prevail for long.
Any withdrawal or post-withdrawal agreement is just an interim stage towards a free trade agreement, ideally a zero-tariff Canada+ trade treaty (although what lies behind that “+” is important).
The withdrawal agreement is only required because the Commission have refused (in breach of their own treaties) to negotiate a free trade agreement without it. It makes sense to agree institutional points such as ownership of data, liability for pensions and a repayment of Britain’s investment in the European Investment Bank. Had it gone no further it would barely have stirred a leaf.
How to change the deal
The main problem issues with the deal as presented are:
- The Ulster Backstop (‘Protocol on Ireland/Northern Ireland’)
- The Vassalage Period (Article 127)
- The block on trade deals (Article 129)
- The budget contribution (Part 5)
The Ulster Backstop
The backstop has been the most problematic issue: if the backstop been excised then the deal would probably have gone through the Commons, but with it, the DUP could not stomach the deal, nor the Tory Spartans. The one thing the Commons has approved by a majority was the Brady compromise: the deal without the backstop. It is also a provision the Commission have been firmest on keeping, in order to keep the Irish government happy.
However, it is an odd provision, and worded as a temporary stopgap. It could potentially become permanent if the Commission refuse to sign off on replacement arrangements, but the seeds of its termination are they open a route to keeping the backstop while junking it at the same time, which would satisfy honour on both sides.
- Solution: accept the backstop, but sign a side agreement accepting that alterative arrangements are or will be in place sufficient to satisfy the condition terminating it before it starts.
The vassalage period
The “vassalage period” is in Articles 95 and 127. These together provide that European Union rules and decisions apply in the United Kingdom during the transition period, including those yet to be made. It is important for the EU to know that Britain has not torn up the rules and standards that allow free passage of goods and services, and the Withdrawal Act continues all such rules. The issue is on new rules, made without British participation. That should not matter to the EU.
- Solution: accept Articles 95 and 127, but make a side agreement in derogation or clarification that they shall not apply to enactments, rules and decisions made after Exit Day, and shall not legally oblige the United Kingdom after Exit Day to enact laws mandated by existing directives unless they already have been.
Outside trade deals forbidden
The block that says no outside trade deals may come into force until the end of the Transition Period is not a serious matter: it goes to the heart of why Britain is leaving the EU, but it is unlikely that any such trade deals would come into force so quickly anyway. This then could be borne. If there is an urgency about any such deal then the Commission’s consent may be sought.
- Solution: accept it.
The Budget contribution
The Budget contribution is a massive one. However, it is less than would be paid to the European Union were Brexit delayed again. The major threat is that if the Transition Period is extended then we hit another budget period and a greatly increased contribution.
Counter to the Budget contribution, the EU will continue to fund projects in the United Kingdom relevant to the sums paid it. There may be reluctance to fund these with looming exit: that must be watched.
The budget contribution is a major issue for the EU: without it their wine cabinets run dry. (For all the bluster from President Macron, there is no legal obligation to make these payments unless there is a withdrawal agreement.) This therefore provides a spur to the Commission to agree a deal and so ensure that they get their money.
- Solution: Agree it with reluctance, if all the other points are agreed, with two the provisos: no extension of the Transition Period (and so no contribution for the next budget period) and payment to be conditional on continued talks towards a zero-tariff free trade agreement to cover goods and services. If payments are still flowing after the end of the Transition Period, they should be conditional too on each side keeping tariffs to zero pending agreement.
All this could be agreed in a couple of lines.
Winning the European Union round
Psychology of negotiation is best left to psychologists, and psychiatrists. The pull of the money and the pressure from member states is substantial though. So far they have tried to stand as one and resist any changes, but there are reconciliatory voices occasionally from one-rung-down in the hierarchy and from eastern member state governments. M Macron is unmoving and the Taoiseach planted, but Mr Merkel is shaky, the Italians are reconciliatory, the Poles will fold if convinced their citizens are not to be booted out. If the concessions do not harm the EU and its members, and they can be portrayed as clarifications, they can be agreed. It the concessions are a side agreement, they would not even need unanimity among the member states.
Further, there may be more that can be offered to the EU which are without cost to Britain: if their greatest fear is that more nations will peel themselves away, and we should be concerned by that too, then can Britain give comfort there? A basic principle of overseas relations should be that the British government cannot be hindered from speaking freely to any Commonwealth country nor the Irish Republic, but with that proviso any assurances they want about the conduct of British relations with member states are available.
Approval in the Commons
Getting any new agreement through the Commons will be problematical even with an acceptable deal, because the Conservatives have no majority and Labour, though theoretically I favour of a deal, will (but for a few honourable exceptions) vote against anything the Conservatives propose. Therefore it must rely on Conservative votes, Unionist votes and the few honest folk of the Labour benches. The vote is necessary because Remainer MPs plus Labour pushed through what became Section 13 of the European Union (Withdrawal) Act 2018, which forbids the signature of any Withdrawal Agreement without a Commons motion approving it and an Act of Parliament. That Section, cooked up by Dominic Grieve (Remainiac Conservative) and Keir Starmer (Blairite Labour), has been the cause of all the grief since.
Mr Starmer and Monsieur Grieve have consistently since then spoken passionately against leaving without a withdrawal agreement, and voted consistently against approving it.
However, Section 13 only applies to a ‘withdrawal agreement’, a term defined by Article 50 of the Lisbon Treaty. It would not interfere with a post-withdrawal agreement. Therefore if the Agreement can be amended and the Commons still oppose it, the PM could simply wait until Exit Day has passed, and sign a post-withdrawal agreement without bothering the House. Parliament would still be required to pass legislation to implement any parts which are not already in law or implementable under executive authority, but we would then have crossed the threshold and the landscape will be different.
- Making a Success of Brexit and Reforming the EU by Roger Bootle
- Brexit: Its Necessity and Challenge by Tony Kosuge
- Brexit: How Britain Will Leave Europe by Denis MacShane
- Brexit: Why Britain Voted to Leave the European Union by Harold D. Clarke, Matthew Goodwin and Paul Whiteley
- Brexit: How Britain Left Europe by Denis MacShane
- Beyond Brexit: Towards a British Constitution by Vernon Bogdanor