It’s being treated as if it’s as dead as a dodo, and much fevered Brexit speculation has moved on to what is likely to happen next after its expiry is confirmed.
The deal struck between Theresa May’s government and the EU needs the formal approval of the UK parliament. But after coming under attack from all sides in the House of Commons, the vote scheduled for Tuesday December 11 was postponed. This led to a no-confidence challenge in May’s leadership from her own MPs, which she survived.
The long Withdrawal Agreement (on the terms of the UK’s exit) and shorter Political Declaration (on the future relationship) were the result of 18 months of negotiations. The deal has been approved by leaders of the other 27 EU countries, and Brussels says it’s the only route towards an orderly Brexit.
The prime minister insists the agreement is in the national interest, delivers on the result of the June 2016 referendum, and the only alternative is no deal or no Brexit. Supporters say it is a sensible compromise, and many in business argue it’s vital to avoid a chaotic exit.
If the deal fails to pass this parliamentary hurdle, the path ahead is shrouded in uncertainty. But as things stand, by law the UK is set to leave the EU on March 29, 2019 – deal or no deal.
Time, money and rights
The legally-binding Withdrawal Agreement establishes a “transition or implementation period” to run after Brexit until the end of 2020, during which many existing arrangements would stay in place.
Although no longer an EU member, the UK will still have to conform to EU rules during this period. The transition can be extended “for up to one or two years”, with a decision taken by mutual consent before July 1, 2020.
- Critics of the deal argue that far from taking back control — a key pro-Brexit referendum slogan — the UK would be surrendering it to the EU. It would be outside the EU’s institutions with no formal say over rules it would have to follow.
- The advantage, however, it that this avoids a “cliff-edge” Brexit, giving people and businesses time to adapt to the UK outside the EU. It also allows more time to reach a final deal.
The accord settles the “divorce” issues to untangle the UK’s 46-year membership of the EU, largely confirming terms agreed earlier on two priority areas: money and citizens’ rights.
It establishes a mechanism for calculating the financial settlement — money the UK owes the EU to settle its obligations. No figure is mentioned but estimates have put it above €40 billion. It includes contributions to be paid during the planned transition period — to run until the end of 2020. If the period is extended, more payments will be due.
- Many Brexiteers hate the financial settlement because it still involves large sums being paid to Brussels and brings no guarantees regarding the future relationship.
- However, the EU made it clear from the outset that it’s about settling the bill for commitments undertaken — and it’s been argued that to renege on these would seriously damage the UK’s international reputation.
On citizens’ rights, under the deal, EU nationals in the UK and Britons in the EU – plus family members – will retain residency and social security rights after Brexit. Freedom to move and live within the EU and UK continues during the transition period. People will be allowed to stay when it ends and apply for permanent residence after five years.
However, the right for British citizens settled in an EU country to move freely after Brexit within the bloc – as they currently can – remains up in the air and subject to a possible future agreement.
The controversial backstop
For long a sticking point during the Brexit talks, no sooner was the ink on the draft deal dry than the arrangements it puts in place for the Irish border resurfaced – again threatening to derail the whole process.
The Withdrawal Agreement envisages a “backstop” mechanism to guarantee an open frontier between Northern Ireland in the UK, and EU member the Republic of Ireland. This is seen as necessary given the different tariffs and regulatory standards likely to result from the UK’s decision to leave the EU’s single market and customs union.
The backstop is described as a kind of insurance policy, should future talks fail to produce a free trade agreement. It would ensure no physical border infrastructure, potentially re-igniting historical tensions and threatening the 1998 peace accord which put an end to decades of political violence.
Under the deal, the whole of the UK would remain in a “single customs territory” – seen as a temporary customs union – with the EU until at least July 1, 2020. This could be extended or terminated, but only by mutual agreement. Tariff arrangements would be the same as now.
- This has infuriated many Brexiteers as it would prevent the UK from applying trade deals with other countries if tariffs are removed.
- The UK government argues that neither the UK nor the EU wants the backstop — but says ditching it is impossible.
- The UK attorney general’s legal advice — which the government was forced to publish — raises potential legal problems concerning a UK-wide shared customs territory with the EU.
Northern Ireland would also stay aligned to some EU rules, including in some areas of the single market. This would avoid checks at the Irish border — but would mean some controls between Northern Ireland and the rest of the UK.
- Brexiteers including Northern Irish unionists – who have been propping up May’s government — hate anything which sets Northern Ireland apart from the rest of the United Kingdom. They have not been placated by attempts to minimise differences and cite May’s own insistence on “no border down the Irish Sea”.
- The UK attorney general’s legal advice highlights that goods passing from Great Britain into Northern Ireland would be subject to checks.
The UK, including Northern Ireland, and the EU also commit themselves to a “level playing field” over tax, the environment, social policy, state aid and competition. The UK would have to align with future EU changes.
Although independent bodies are given a role, the European Commission and the European Court of Justice retain major powers of oversight concerning Northern Ireland — and to some extent for the UK as a whole.
To exit the backstop, either side can propose such a move to a Joint Committee — which can consult joint UK-Ireland institutions. But the UK cannot unilaterally leave.
- This point has particularly enraged the pro-Brexit camp, as the UK could not leave the backstop unless the EU agrees. This, they argue, seriously compromises UK independence and could lead to indefinite customs union membership.
- The British government says this would be highly unlikely as neither side would want it. The EU is anxious to stop the UK exploit backstop arrangements to engage in unfair competition via “back-door” customs union membership.
- The attorney general’s legal advice points out that whatever the intentions, the backstop “would endure indefinitely” under international law until a new agreement took its place.
Why is the Irish border issue so complex?
UK can pull out of Brexit unilaterally, EU court advisor says
Brexit Guide: where are we now?
Legal disputes and other matters
Although a joint UK-EU committee and an arbitration panel would try to resolve disputes, the UK would remain under the jurisdiction of the European Court of Justice (ECJ) during the transition. Afterwards, its rulings would no longer have direct effect in the UK but it would retain influence.
One contentious issue — that of fishing rights — is left to be dealt with on another day. The agreement says the EU and UK should do their best to strike a separate deal on access to UK waters for EU fishing boats.
A protocol on Gibraltar — the British territory on the southern tip of Spain – seeks to ensure in particular that citizens’ rights are respected. Another, on Cyprus, aims to preserve the current situation — keeping the British military base in the EU’s customs territory.
The 26-page Political Declaration accompanies the Withdrawal Agreement and sets out the basis for future relations, including trade. Euronews has previously examined it in more detail here.
This document is not legally binding but defends the core principles dear to each side: the integrity of the single market and customs union for the EU, and sovereignty for the UK. At the same time, it says future ties should be as close as possible.
What they have said about the deal
“What this deal does is that it delivers on the referendum: it delivers on sovereignty by ensuring that the Court of Justice doesn’t have jurisdiction in the UK any more, it delivers on not sending vast sums of money to the EU every year, it delivers on an end to free movement” — Theresa May, UK prime minister.
“It is a worst-of-all-worlds deal that works for nobody, whether they voted leave or remain. Instead of taking back control, it gives up control. Instead of protecting jobs and living standards, it puts them at risk by failing to put in place the basis for frictionless trade” — Jeremy Corbyn, opposition Labour leader.
“Theresa May’s deal hands the EU the indefinite power to bully and blackmail this country to get whatever it wants in the future negotiations… we simply will not be able to do any serious trade deals… the UK will have to remain in large part run by EU laws – with no representation in Brussels” — Boris Johnson, former UK foreign secretary.
“I actually think this particular arrangement… is good enough to get us past March into a transition period where nothing will change, fortunately, and we are about to start the serious negotiations on the big agenda” – Ken Clarke, Conservative MP and ex-minister.
“This deal will make Scotland, and indeed the whole of the United Kingdom, poorer” – Nicola Sturgeon, Scottish First Minister (SNP).
“There is a huge democratic deficit coming our way if we agree to this deal, because we have no say over the rules that will apply to Northern Ireland” — Arlene Foster, Democratic Unionist (DUP) leader.
“This is a route map now for getting to a good deal in the future… The position of business is we’ve had two years of wrangling, we have the risk of no deal out there, we have an economy that is already feeling the pain – this is a compromise, it is progress, and we should now make it work” — Carolyn Fairbairn, Confederation of British Industry (CBI) director general.
“The consistent and overwhelming message... is that to make business decisions they need certainty and it is for that reason they support the Withdrawal Agreement. Leaving the EU without a deal would have catastrophic consequences and must be avoided. That said, no business that we have taken evidence from held the view that – from an industry perspective – the Withdrawal Agreement and Political Declaration provide a deal as good as the one we already have with the EU” – UK parliamentary report on views from aerospace, car, food and drink, and pharmaceuticals sectors.
“The agreement that is on the table – the withdrawal agreement and the agreement on the future relationship – are, in our view, the only and best possible to organise an orderly withdrawal” — Michel Barnier, chief EU Brexit negotiator.