How We Got Here
It seems like it will never end. Last week, the House of Commons voted against Theresa May’s Withdrawal Agreement for the third time. The House also rejected a ‘no deal’ scenario, participation in a customs union with the EU post-Brexit, and a ‘confirmatory public vote’. So far, it has been quite evident what the House doesn’t want, yet the same cannot be said for what it doeswant.
Despite this, by automatic operation of the law, the UK will leave the EU on the 12th April. This is due to the European Council’s decision to grant the UK a two-tier extension of the Article 50 process, setting the exit date at the 22nd May if the Agreement is approved, and the 12th April if not. This is the reality that the House must now contend with.
For those less engrossed in the Westminster bubble and Brexit debacle, all of this might seem quite strange and frustrating. The UK voted to leave the EU in June 2016, started the process for withdrawal in March 2017, and agreed on the terms of that withdrawal in November. Our exit was due to take place in March 2019. So why has the UK not left yet?
The problem is the deal itself. MPs have different contentions with the Withdrawal Agreement, as well as the Political Declaration (a subsequent document to the official Agreement which is not legally binding), both agreed between the Government and the European Commission last year.
Some despise the Irish backstop for its potential to bind the UK to a customs union with the EU indefinitely if future negotiations were to stall. Others have complained that the Declaration on the future relationship is too vague and not legally binding, providing no certainty for citizens or businesses in the UK.
On the face of it, it is these concerns that have resulted in negligible support for Mrs May’s deal. But the roots of Parliament’s dissatisfaction go deeper.
Throughout the Brexit process over the last few years, Theresa May and her Government have consistently sought to exclude Parliament and conduct negotiations in almost complete secrecy. Consequently, no matter what deal the Prime Minister produced, it was almost inevitable that it would be received with significant negativity. This is only exacerbated by the fact that the Government lacks a stable majority in the Commons, increasing the importance of reaching out to MPs across the House in order to garner sufficient support.
This exclusion of Parliament began with the Prime Minister’s red lines for the negotiations. Drawn up in accordance with certain factions of the Conservative Party, the red lines’ supposed intention was to appease the party position — with little regard to the concerns of other MPs.
The Government then sought to trigger Article 50 without Parliament. The attempt was struck down in the Miller case: the Supreme Court ruled that parliamentary approval was indeed required.
The next clash came in December 2017, when the now notorious ‘meaningful vote’ was born. Conservative MP Dominic Grieve’s amendment to the Great Repeal Bill required any agreement with the EU to be ratified with the approval of Parliament instead of the Government being permitted to implement the agreement on its own.
These events have now led to the current impasse evident in the Commons, with May’s deal being consistently rejected with little prospect of getting through. This is despite the agreement of a joint instrument with the EU on the backstop in March which highlighted the UK’s ability to exit such arrangements where it can be shown that the EU has acted in bad faith during negotiations on the future relationship. Though this instrument was negotiated on the basis of the Brady amendment, approved by the Commons in January, the change was not enough to see Mrs May’s deal through.
The calamity of the Brexit process in the UK is yet more harshly exposed in comparison with our (current) fellow 27 EU members. The remaining member states have effectively avoided disorder by implementing an inclusive and conciliatory process with a great degree of transparency.
Even before May took office in July 2016, the Irish were in discussion with the EU over the future of the island’s border. This informed the EU’s approach to the issues for withdrawal and the sequencing of the negotiations. Thus, by the time May travelled to Dublin a few months later and agreed to not return to the borders of the past, she had conceded to such a demand without realising the consequences this would have for subsequent negotiations.
After Article 50 was triggered, the European Council issued its guidelines, agreed by the leaders of the 27 Member States, to be followed by the Commission throughout negotiations. But more than that, both Michel Barnier and Jean Claude Juncker insisted on being transparent with the other EU institutions from the beginning. Ambassadors of the 27 countries were regularly consulted in addition to Barnier meeting with the Brexit Steering Group.
As a result, when the deal was agreed in November, there was little disenchantment among the Member States. The consistent communication between all those involved on the EU-side built up a strong foundation of trust allowing for genuine unity and a collective sense of ownership.
If the UK is to have any kind of success in future international negotiations, whether it be with the EU or other states, a similar approach should be taken, where Parliament is involved in a meaningful way throughout. Building trust will go a long way in not just obtaining approval for trade deals, but also in ensuring that those involved can extract all the benefits that such international agreements can offer. Otherwise, we can expect more parliamentary wrangling and delays that frustrate the UK’s future.
Originally published at www.bbench.co.uk on April 3, 2019.