North, South, East and West on Brexit

Richard Parry reflects on the first-stage agreement between the UK and EU that defuses political of tension but has little comfort for the proponents of Brexit and leaves all to play for in the territorial politics of Britain and Ireland. 
Sometimes even the best-trailed political events happen suddenly. Theresa May’s pre-dawn entry into Brussels had her on the podium with Jean-Claude Juncker at 6.40 am British time and grabbed the weekend headlines while much of the UK slept. The joint report is a mixture of rhetoric – even the phrase ‘nothing is agreed until everything is agreed’ appears – and technical legal detail. But the rhetoric, much of it aspirational, comes from the British side, while the small print is EU-friendly. Faced with the abyss of slowing economic growth and risk-averse business decision-making, May has had to concede much in order to secure the Brexit date of 29 March 2019 while fighting another day for the longer term. In the process she has probably knocked out a hard, WTO Brexit as a realistic political option.
From the start, the EU has been able to enforce its negotiating priorities on money, people and Ireland. The UK has not been able to come up with any conceptual framework of its own on money. It will contribute until 31 December 2020 ‘as if it had remained in the Union’ (para 59) and beyond that ‘will contribute its share of the financing of the budgetary commitments outstanding’ at that date (para 61). The accident of the current Multiannual Financial Framework running from 2014 to 2020 has overridden the two year notice period of article 50. As the transitional period (the statement does not use May’s preferred ‘implementation period’) is expected run for around two years (this is not specified in the document) questions remain about money in January-March 2021. In the longer term the UK has open-ended commitments on pensions and social security ‘as if the UK had remained a member state’ (para 67), the UK having declined to seek a formula to buy out its pensions obligations.
On citizens’ rights, the EU has pushed further what the UK presented as a ‘generous’ offer to EU citizens who had exercised their free movement rights. In particular, EU citizens will have the right in perpetuity to bring in family members entitled on Brexit date and children born anywhere after it (para 12). The implied deterrent aspect of UK financial and administrative procedures developed by the Home Office in recent years is much softened by para 17: getting residence documents is to be a short, simple, user-friendly and perhaps even free of charge process. The obvious concept that the European Court of Justice should have the last word on the interpretation of claimed rights acquired before Brexit is conceded for eight years in para 38 and is likely to be exercised in a citizen-friendly way. Much political capital was wasted by May on the totemic concept of ‘no role for the European Court after Brexit’.
On Ireland, few commentators can resist quoting Winston Churchill’s line of 1922 that ‘we see the dreary steeples of Fermanagh and Tyrone emerging once again’. The steeples are not particularly dreary, but Fermanagh is where we found Arlene Foster on Friday morning, denied a symbolic walk up Downing Street to bless the deal. This week’s action does not seem to have resulted in any concession by the Irish government, but rather a flanking of the previously agreed wording (para 49) with rhetoric about no new regulatory barriers or loss of unfettered access for Northern Ireland into the rest of the UK (para 50). The Northern Ireland Executive and Assembly, if reconstituted, have a veto on new regulatory barriers (para 51). This shows the parliamentary power of the DUP and they are free to come back for more.
Exactly how the north-south and east-west channels are to be reconciled remains unclear. The Irish government believes that the only operational mechanism is for Northern Ireland to remain in the Customs Union (otherwise pressures for customs barriers might come from the EU side), but para 45 speaks of ‘as the UK leaves the EU’s Internal Market and Customs Union’ (the only mention of this in the document). Open channels for Northern Ireland in both directions either leave it uniquely advantaged or drag the whole UK in a quasi-customs union direction. This point was eagerly picked up by Scottish and Welsh interests, including the Conservatives. Nicola Sturgeon has been no less aspirational than May, leaving the energy on any IndyRef2 strategy continuing to run down.
What the document [PDF] offers is a concept of the UK acting after formal Brexit as if it were a non-voting EU member. This is implicitly available beyond the end of 2020 as it is in the EU’s financial and political interests. The UK government can dream on for a few months. There will have to be a Withdrawal Agreement under article 50 that the European Parliament ratifies. It will get the UK out but also put it into the weak position of a non-member state seeking a trade agreement. What seems certain is that the withdrawal process will not produce the totality of a ‘great deal’ in Leavers’ terms and for years to come exchange EU member status for de facto membership obligations without voting rights.   

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Richard Parry's picture
post by Richard Parry
University of Edinburgh
8th December 2017
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