Beyond the summit
There will most likely be a Brexit deal agreed. But the real battle comes afterwards.
At this point, many describe leaving the EU as akin to a journey through the looking glass. More than that, it seems to have produced the worst of the worst: the Chequers deal, currently the subject of Brexit negotiations, garners little support, even from the electorate.
But deep in the bowels of the European Commission, the negotiating parties continue to plough through nevertheless. There are two aspects to the deal which still need to be agreed before the year is out. The first is the withdrawal treaty. This particular agreement concerns the terms for the UK’s exit from the EU, including the issue of budgetary contributions and the transition period to operate on and after Brexit day.
The EU has also insisted that included in this treaty is the ‘Irish backstop’, which is essentially designed to eliminate checks at the border in the island of Ireland and between Ireland and the UK. This backstop is, however, only a Plan B. The priority is to formulate an arrangement which achieves no checks at the border and more, thus eliminating the need to revert to the backstop.
This, then, links to the second aspect, which is the future relationship. This will be unlike the withdrawal treaty, which will take the form of binding legal text. Instead, the future relationship, if agreed, will be laid out in a political declaration, in essence a statement of intent.
It seems that a deal is close to being agreed, despite what might be conveyed by the media. Both the Salzburg and October summits did little to harm the substance of the negotiations. In reality, the remaining divisions between UK and EU negotiators are more technical than anything else.
Rather, where the real challenge will be for the UK government is Parliament. Will May be able to get her deal through the House of Commons? Many say no. Boris Johnson, seen by some as a potential future Tory leader, has been one of the most prominent figures encouraging the Prime Minister to ‘chuck Chequers’. Several Tory MPs appear poised to vote it down come what may.
However, it is most likely that any deal which May brings back will get through the House. Fuelling such a vote will be the widespread fear among MPs that a so-called ‘no deal scenario’ will be the undesirable result of rejecting May’s deal.
Even if it’s questionable as to whether there is a majority for a deal, it would seem more likely that there is no majority for the alternative. Yet Downing Street has long insisted that this will be the stark choice facing the Commons. If so, the result would seem fairly clear.
Furthermore, even if this insistence from Downing Street is politically motivated, they also have the law on its side, somewhat. Having ‘remain’ as an option, either in a Commons vote or even a second referendum, seems entirely moot. Giving effect to such an option would not only require a U-turn in government policy, but also the revocation of the Article 50 notification, of which would probably require the consent of the EU.
Neither of these appear even remotely on the horizon. Nor does the idea that the Commission will be open to further negotiations after parliamentary rejection seem plausible, since the EU will want to get on with its own ratification process.
But even if the deal survives the scrutiny of Parliament, the next battle will take place soon after. The political declaration on the future relationship will need to be transformed into a comprehensive legal text with specific provisions contained therein. This process, which will take place during the transition period, will concern a largely still malleable, non-legally binding document.
As such, the declaration will set out the broad guidelines as to how to reach the end destination, but there will still likely be a variety of ways to get there. In particular, the more fudged the declaration is, which is a unique specialty of the EU, the less certain the specific journey thereafter. It is thus here where policy-makers and politicians alike will compete for the definitive final vision.
Even so, some may argue that such a declaration would only be malleable to a limited extent, and thus the UK would essentially be stuck with Chequers or something close to it. However, this may only be a half-truth.
If those advocating for Brexit are able to sustain such an appetite in the future, it may be possible for the UK to eventually achieve a Canada-style free trade agreement with the EU. Brexit has always been a process of divergence from the bloc, and thus it would have been difficult for the UK to embrace a clean break at the very beginning. But gradually achieving this later on could still be on the table.
Accordingly, Chequers, or whatever deal May agrees with the EU, could merely become a starting point for a greater, longer-term scheme. Although, this could be easily perceived as merely kicking the Brexit can down the road. If so, then leaving the EU will become an immortal policy, refusing to loosen its grip on the political scene. Behold, Brexit in perpetuity.
Originally published at www.bbench.co.uk on October 23, 2018.