Game of fools

We have only 59 days before the UK becomes a third State with respect to the EU and the possibilities for a Brexit without a deal are increasing. Yesterday’s session in the British Parliament confirms it.

Let’s take a look at the situation we are facing now.

After two years of negotiations, a few months ago, the UK and the EU concluded an agreement for the orderly withdrawal from the EU. The agreement included a transitional period of more than one year (until December 2020) which would allow the UK, even as a third State, to continue enjoying fully all European freedoms (free movement of goods, services and people), thus giving time to reach an agreement on future relations between the EU and the UK, something that will only begin to be negotiated when the UK becomes a third State. The Withdrawal Agreement is accompanied by a political declaration on that future framework of relations, but brief and generic.

One of the key points in the Withdrawal Agreement is the question of the Irish border between Northern Ireland and the Republic of Ireland. The idea of ​​the negotiators (there was a coincidence between the EU and the UK on this point) was that a physical border between the two Irelands should be avoided. Now, how to achieve this goal? During the transitional period there is no problem, because, as we have seen, everything would remain the same, but what happens after the end of this transitional period? The solution found was that after the end of this period, the UK would remain integrated into a single customs territory with the EU (Article 6 of the Protocol on Ireland in the Withdrawal Agreement), so that it would not be necessary to establish a physical border because it would not be necessary to carry out any border control between the two Irelands. In addition, a common travel area between the UK and Ireland is established (Article 5 of the Protocol on Ireland). As a consequence of this single customs territory, the UK would not be free to establish its own tariffs. The UK would only be capable to develop an autonomous commercial policy after concluding an agreement with the EU in the framework of the future relationship between the EU and the UK.

As it is known, the UK Parliament rejected the Withdrawal Agreement and doubts arose about what will happen next. Two days ago, Carles Górriz published an entry on this blog about the different possible ways to manage the situation. Yesterday’s discussion in the British Parliament shows the complexity of the situation we are facing now and the difficulty of moving forward in order to find a solution other than the one that everybody wants to avoid: a no deal exit.

Yesterday, the British Parliament dealt with what we could call “plan b”; that is, to decide which path should be followed after the rejection of the agreement reached a few months ago by the British Government and the EU. For the moment, that agreement continues its way through the European institutions. It was approved by the Council on January 11 and has been sent to the European Parliament for approval, probably in the next weeks.

Several possibilities are open up in the midst of enormous confusion. The starting point was a statement by the British Prime Minister, Theresa May, on January 21. Regarding that statement, different amendments had been presented and voted in plenary.

It is interesting to note that Theresa May’s statement rejected the possibility of a second referendum and the possibility of revoking the notification of the UK intention to withdraw from the EU; that is, to give up leaving the EU. This is important because, as is known, in the month of December 2018, the Luxembourg Court issued a decision stating that the UK could unilaterally revoke the withdrawal notification before the effective exit from the EU; although the revocation must be made in accordance with the constitutional requirements of the UK. It cannot be discarded that the UK uses this possibility; but for the moment, in the session of the British Parliament of yesterday this possibility was rejected.

What was finally approved by Parliament (can be consulted here) includes:

  • the rejection of the possibility that the UK leaves the EU without a Withdrawal Agreement.
  • the rejection of the agreed solution for the border between North Ireland and the Republic of Ireland (the Northern Ireland backstop).
  • to urge the Prime Minister to agree with the EU on an alternative solution for the Northern Ireland backstop.
  • to reject a “hard” border in Ireland

And, as we have seen, to reject both an extension of the two-year deadline set in Article 50 of the EU Treaty and, implicitly, the revocation of the withdrawal notification.

Thus, the British plan is to convince the EU to reopen the negotiations on the Withdrawal Agreement in order to modify the Irish backstop. The President of the European Council, Donald Tusk, gave a response inmediately:

That is:

  • there will be no renegotiation of the Withdrawal Agreement.
  • an extension of the two-year term of article 50 of the Treaty of the EU is possible, but only if there is a UK proposal that justifies it and not beyond the elections to the European Parliament in May (I guess that this is he meaning of the reference to the “functioning of the European institutions”). Tusk also remembers that unanimity is necessary for that extension.
  • It is possible to talk about the framework for the future relationship between the UK and the EU.

What can be expected from these opposing positions?

I think that the proposal to renegotiate the Withdrawal Agreement has no chance to become a reality. Tensions within the EU (Spain with Gibraltar, France with the fisheries issue) began to appear at the time of the conclusion of the Agreement. The balance is unstable and it does not seem possible to modify it from the EU side.

On the other hand there is a matter of time. The current text was reached in November and has not yet been approved by the European Parliament. How could a text be negotiated and approved within 59 days (remember that the British Parliament has refused to request an extension of the deadline)?

So, there is no real possibility of renegotiating the Withdrawal Agreement. Taking that into consideration how can UK articulate two mutually incompatible positions: reject a no deal Brexit and reject the only possible agreement?

There is only one way to achieve both objectives: to remain in the EU; but will they be able to assume it? Additionally, the revocation of the notification to withdraw requires that an act must be passed in the Parliament, because an act was necessary for the withdrawal.

My impression is that the British MPs have not yet assumed the real position in which the UK is and they are beginning to be overwhelmed by the circumstances. To approve yesterday two contradictory proposals and not to give entrance to the only one that could reconcile them, the permanence in the EU, perhaps justifies the title of this entry.

There are 59 days left and the possibilities are closing.