The PM has secured some meaningful concessions from Brusselsby Aarti Shankar / November 16, 2018 / Leave a comment
If anybody hoped the conclusion of exit negotiations would mark a turning point, where the UK and EU could breathe easy in the knowledge a deal was on the way, they must be sorely disappointed. Of course, it was always going to prove difficult for an agreement to get through parliament, given May’s lack of a majority. But the succession of government resignations yesterday, and above all that of a second Brexit secretary, highlights just how difficult it may be for the prime minister to sell her deal in the UK.
When MPs come to vote on the Withdrawal Agreement, and the accompanying aspirational declaration for future relations, they will have to consider the package as a whole. Elements of the agreement that have been locked down for a long time, including important commitments to secure the rights of EU and UK citizens, should not be forgotten.
The truth is that this deal has merits. The UK has secured some key improvements on earlier draft texts. Under the Irish backstop for instance, the prime minister can credibly claim that there won’t necessarily be a customs border between Northern Ireland and Great Britain, given the inclusion of a UK-wide joint customs area with the EU—something the Commission had been particularly reticent to offer.
Elsewhere, the Withdrawal Agreement will be governed by the UK-EU Joint Committee, and an independent arbitration panel. This is a significant shift from previous EU demands that the European Court of Justice (ECJ) act as the final arbiter, which had been unacceptable to the UK government. A role for the EU’s court is still included—any decision that requires interpretation of an EU law must be referred to the ECJ, not independent arbitration. This is similar to the governance system proposed under the Chequers plan. The UK cannot realistically expect to insulate itself entirely from the ECJ, especially in an agreement where it undertakes to apply some EU law domestically.
The agreement also grants the UK relatively favourable terms on “level playing field” commitments, in areas such as state aid, employment and environmental law. For instance, rather than agreeing to follow EU law in domestically sensitive areas such as social and employment law, the UK has secured non-regression clauses, that commit it to maintaining existing standards only broadly. What’s more, these obligations are not subject to arbitration. EU member states might be wary about granting the UK this flexibility in return for tariff-free access in a customs union.
None of this is to say the agreement does not contain problematic elements. While the UK has addressed high-level domestic concerns about a customs border in the Irish Sea, the backstop still contains challenging Northern Ireland-specific provisions. For instance, Northern Ireland alone remains subject to the institutions and authorities of the EU, as per a member state, in areas relating to goods, state aid and the environment. Yet it is not clear what representation it would have within these. This raises serious concerns about democratic legitimacy, and the potential for significant and imposed differentiation between Northern Ireland and the rest of the UK if the backstop were ever used.
Any analysis of the deal must consider the alternative available at this stage. Some have suggested the UK could choose to renegotiate aspects of the text—it is interesting that the prime minister told MPs yesterday that the deal is agreed in principle only. Of course, the text could still be adjusted. On the EU side, for example, member states are yet to sign off on it—French Economy Minister Bruno Le Maire yesterday suggested France would not rush to make a decision, and stressed that the deal must ensure the UK meet single market requirements in areas such as social and environmental policy.
So it does remain open for the government to go back to the negotiating table. But if it chooses this path, it must be clear what precisely it is seeking to obtain. Seeking assurances on a clearer role for Northern Ireland representatives in EU institutions may be possible, but deciding to rethink the whole backstop would simply not be credible at this stage.
Renegotiation is of course not without risk. It is not clear that the EU is willing to offer further concessions to the UK. And the government must consider what path it will take if it fails to secure what it wants.
For now it appears the prime minister is determined to press on with her strategy. If she is to have any hope of getting a deal through, she must be honest about the compromises she has made, and say upfront that the UK’s divorce from the EU will be a slower, more gradual process than some may have wanted.