The Brexit route has become more difficult

Published : 01 Oct 2019 05:37 PM | Updated : 07 Sep 2020 04:59 PM

After mon­ths of in­direct and oblique th­reats, British Prime Minister David Cameron wrote a letter to Donald Tusk President of the European Council on 10 November, 2015. He demanded a renegotiation of the terms of Britain’s membership of the European Union.Four years on and three Prime Ministers later, we may be about to see the completion of Brexit. Subsequently, there has also been the jolt on 24 September with the unanimous ruling by the British Supreme Court that Premier Johnson unlawfully suspended the Parliament. This has been a huge blow to his authority and has complicated the already tortuous Brexit process. This has also led Jeremy Corbin, the Labour leader to immediately call on Johnson to “consider his position” – in other words, to resign.

It is not yet certain how Brexit will be completed. There still appears to be – “bumps in the road”, as British Prime Minister Boris Johnson calls them – before the UK’s final relationship with the EU is stabilized. In this context we have to wait and see what actually takes place at midnight on 31 October – deal or no deal.

We all know that many sceptics and cynics think that the efforts as undertaken by Johnson might not end with the desired outcome. At the same time many analysts have also been pointing out that Johnson knows, that Brexit without a deal might be very harmful for the British economy and society. In fact, the threat of No Deal has split his own party. This has led to Johnson losing the slender parliamentary majority he had inherited from his predecessor Theresa May. This has directly and indirectly affected Cabinet responsibility and led to the rise of civic disorder. The devolution arrangements in Scotland, Wales and Northern Ireland are also exhibiting signs of creaking under pressure. The courts, including the UK Supreme Court, have also had to intervene on the matter of parliamentary prerogative versus executive power. The government’s decision to prorogue Parliament on 9 September until 14 October has also dragged the Queen into the constitutional furor.

Prime Minister Johnson also finds himself in an awkward position with the cleverly crafted terms of the EU Withdrawal (No. 2) Act 2019, promoted by Labour’s Hilary Benn MP with the support of pro-European Tory rebels. The new law directs Johnson to write to Mr Tusk by 19 October requesting an extension of Article 50 until 31 January 2020. This has been done in the case of either No Deal having been reached by then, or if there has been no agreement by then fixing a date for a No Deal exit. The Act state that the purpose of the extension is “in order to debate and pass a Bill to implement” the Withdrawal Agreement, “including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the UK to secure changes to the Political Declaration to reflect the outcome of those interparty talks”. That last clause was tabled by Stephen Kinnock MP, a leading Labour figure on the side of compromise. Significantly, the amendment was accepted by the government without a vote.

It is nevertheless generally agreed that Boris Johnson has more flexibility than his predecessor- May, for two reasons. Having lost his Commons majority he is no longer dependent on the votes of the ten DUP MPs who oppose a Northern Ireland-only deal. It may be noted in this context that few English nationalists make Ireland, North or South, their priority. At the same time a revised Irish backstop has left British Northern Ireland fully aligned with the Irish Republic for trade in farm produce and in essential goods and services – which, in any case is the preferred option of the European Commission. Such a course of action, as an alternative arrangement would minimize the need for border checks. It is also unlikely to be blocked in the British House of Commons.

At this point Boris Johnson also needs to understand that the concessions in the Kinnock package guarantee no regression by the UK from the highest EU social and environmental standards. This will enable him to gain support at Westminster from the moderate majority.

Analysts are consequently pointing out that the great advantage that a deal brings over no deal is the gift of the transition period, designed under the terms of the Withdrawal Agreement to avoid disruption and keep supply lines open. This transition period is due to expire in December 2020, but can be extended by one or two years. Economists are also observing that even such an extended opportunity might not give enough time to conclude the final treaty with the UK. As a result, such a possibility should induce Johnson to ask for a new Protocol to be added to the Withdrawal Agreement that would allow the transition period to be further extended, if necessary, to be consistent with the entry into force of whatever the final treaty between the EU and the UK will be. Such a flexible extension to the transition could possibly also preclude the need to deploy the Irish backstop.

These evolving circumstances have also persuaded some British MPs to suggest that Boris Johnson should seriously consider jettisoning the Political Declaration entirely, and then inviting the Commons to vote only on the Withdrawal Agreement. According to them, an exchange of letters setting out the modalities of the future talks, with scope and timetable, should be enough to fulfil the Article 50 requirement to take into account the framework for the future relationship. In all probability, nothing substantive might however be agreed upon with regard to customs outside the negotiations of the future free trade agreement. Only the details of a trade negotiation undertaken during a necessarily lengthy transition period might then settle the issues of customs and tariffs and determine how frictionless future trade might be between Britain and the EU.

If a deal on these lines can be done at the European Council on 17-18 October, the House of Commons might then be able to deliver a positive ‘meaningful vote’-consistent with the terms of the EU Withdrawal Act 2018. The European Parliament can then ratify the package.

It needs to be noted however that if there is such a deal, then, both Houses of the British Parliament will need to enact the much-anticipated Withdrawal Agreement Bill, which could be the priority item of the Queen’s Speech on 14 October. In such a situation, there will be need to have a short extension of Article 50 beyond 31 October into the first weeks of November.

After such an evolving Brexit has taken place and the legal aspects have been handled carefully, it would be logical to believe that the next step would be a new British general election.

There is also another alternative scenario.

If a no deal situation emerges despite the late flurry of talks, the October European Council will be faced with a desperate British Prime Minister forced by the British Parliament to seek an extension to Article 50. Last time, the European leaders needed eight hours of discussion in order to agree, by unanimity, that they would agree to an extension “to allow for the ratification of the Withdrawal Agreement … Such an extension should last only as long as necessary and, in any event, no longer than 31 October”. This time round it might not be that easy.

However, many British Parliamentarians think that the European Council, this time, might agree to grant a third extension if convinced that the request is serious. Some have nevertheless observed that another British general election may be seen as a serious reason for delaying Brexit. Whatever be the situation, it is unlikely that the EU leadership will desist from setting stricter conditions than they did in March. They might also fix a firm deadline for the termination of Article 50 that best suited the EU’s needs. European observers in this regard have noted that continued fiddling over Brexit by Britain is damaging the morale, reputation and efficiency of the European Union.

One aspect has nonetheless become quite clear. Different political parties have indicated to all concerned that the UK as a third country must not expect more rights than it had as EU member state. Consequently, British access to the EU internal market would depend on its ability to respect and be seen to respect, the principle of a level playing field.

Political scientists in the EU as well as in Britain have, after careful scrutiny, mentioned that Brexit in a manner of speaking has served to propel the EU into a period of introspection about the different elements that are associated with being a member State of the EU. They have also suggested that Britain should similarly make efforts to discover more about what it is not to be a EU member state. They are viewing this as a constitutional moment of self-definition. It is also quite clear that the transparent and disciplined way in which Mr Barnier has conducted the negotiations on behalf of the EU Commission under the watchful guidance of the European Council has paid dividends in terms of promoting EU’s internal unity and cohesion. Some EU States have already started saying that despite the loss of a major member state- Britain, the EU will be emerging stronger out of the Brexit process.

In conclusion one also needs to point out that the UK, whether or not there is a deal under the terms of Article 50, will have to sit down with the responsible authorities of the EU without delay to discuss their future association. Even a minimal free trade agreement will require an EU-UK treaty that will deal not only with tariffs but also with non-tariff barriers. Differing levels of regulatory alignment will also open different degrees of British access to the EU market. Within this paradigm, aspects to be covered in any trade agreement will also have to include technical regulations and standards, state aid, labour and social policy and environmental policy.

There will also have to be common denominators with regard to factors that might require joint governance, surveillance, supervision and dispute resolution mechanisms. All of these will have special strategic importance.

Muhammad Zamir, a former Ambassador, is an analyst specialized in foreign affairs, right to information and good governance