After nearly two years of wrangling, more between the rival factions within her own party than with the EU, over the manner of the UK’s mooted departure, Theresa May agreed last week to an unpopular Withdrawal Agreement. Then, like a disorganised undergraduate who realises the night before that a paper is due, she hurriedly threw together the so-called political declaration on the (far more important) future relationship between the UK and the EU.
The fact that consideration of the crucial future relationship was left so late in the two year Article 50 process is, in and of itself, a dereliction of duty from this divided and divisive government. And the result is a 26-page “to-do” list, settling very little.
It is the “Blindfold Brexit” that I and others have warned about.
Only a couple of times in its 26 pages does the text say “The parties agree to…” or “The UK and the Union will…”. Instead, it is full of phrases such as “The parties will look at…” or “The parties will explore options…” or “The parties note the UK’s intention to explore options…” or “The parties agree to consider…”.
This means that most crucial issues would only be settled after Brexit, when the UK negotiating position is weaker, no longer a Member State, unable to change its mind, and in the context of an agreement that will need ratification by every single national parliament of the 27, making it vulnerable to both the collective demands of the EU, and those of single member states.
It means Parliament is invited to buy a “pig in a poke”, to give the go-ahead to Brexit without knowing what it entails for key issues such as the final customs and single market arrangements, cross-border law enforcement mechanisms, participation in European research programmes, access to funding from the European Investment Bank, regulations for cross-border transport, data sharing, student exchanges, defence and security cooperation and much else.
Where the text is, occasionally, more precise, it does not augur well.
It refers to the need for border “checks and controls”, given the UK government’s intention to leave the single market and the customs union – goodbye to the “frictionless trade” that various Ministers had promised. UK access to the EU market will depend on “level playing field” provisions covering “state aid, competition, social and employment standards, environmental standards, climate change and relevant tax matters”, on all of which the UK will in practice have to follow EU rules, while no longer having a say on them.
It makes clear that Theresa May’s intention to end reciprocal freedom of movement for our citizens will be matched by “full reciprocity” – a kick in the teeth for UK citizens hoping to live or work in other EU countries.
It rules out continued UK participation in the European Medicines Agency, the European Chemicals Agency and the European Air Safety Agency, allowing only for “the possibility of cooperation”. (This in contrast to the EU’s Civil Protection Mechanism, where the UK can be a “Participating State”).
It makes our insurance and banking sectors’ access to the European market dependent on the European Commission accepting that UK rules are “equivalent” to the EU’s rules. The same applies for data.
Participation in any EU programmes we want to will be “subject to the conditions set out in the corresponding Union [legal] instruments”.
When it comes to Europol and Eurojust, the text refers to “cooperation” rather than “participation” and the European Arrest Warrant will be replaced by “streamlined procedures” yet to be negotiated.
Britain will drop out of the Galileo Satellite system, in which we benefit from sharing the huge costs among 28 countries. Instead, the text says merely that we “should consider appropriate arrangements for cooperation on space”. Years of UK investment in Galileo thrown away, leaving us facing the costly option of setting up a separate system, as the government announced with apparent relish.
And, to the intense fury of Brexiters, the dispute resolution mechanism between the UK and the EU will see an “independent arbitration panel” whose decisions will “be binding” and which defer to the Court of Justice of the EU, the “sole arbiter of Union law”, whenever it is a matter of interpreting the EU’s rules – but where there will no longer be a British judge.
This defective deal, this botched Brexit, stands little chance of being voted through the House of Commons. Last Thursday, it was met with a loud chorus of disapproval, as much from May’s own party as from the opposition parties, when she tried to defend it.
But if the Commons rejects it, what then? It cannot mean a no-deal Brexit: an overwhelming majority in the House opposes such a cliff-edge fall into legal limbo where all existing rules, arrangements and programmes suddenly end without being prolonged or replaced, creating chaos.
So, if we don’t want to leave without a deal, but we have rejected the defective deal on the table, what do we do?
There are only two other possibilities: negotiate a different deal, or stop Brexit.
The former would require quick agreement on a different model of Brexit, capable of commanding a large majority in the Commons in order to persuade a reluctant EU to reopen talks. The EU might agree to do so if there were absolute clarity and commitment from the UK to a viable alternative. It won’t if it is just another attempt by Theresa May to assuage assorted backbenchers.
The second option, stopping Brexit, would require the government to withdraw the UK’s notification of its intention to leave the EU, that it delivered under Article 50 of the treaty. In practice, such a decision would, politically, no doubt need another referendum. That in turn would perhaps need a short extension of the 29 March deadline, which the EU would certainly agree to if it were simply to allow the UK to complete its democratic procedures.
Given that Brexit is turning out to be very different from what was promised, it is not surprising that more and more people are turning to that option. A democracy has the right to change its mind.