ANDREW FARRAN. Brexit: The Beginning of the End

Nov 19, 2018

Thursday 15th November was a most extraordinary day at Westminster where a besieged lady tenaciously stood her ground at the despatch box and stared down some hundreds of howling Parliamentary interlocutors (mostly of her own party) and remained totally unfazed in defending the 585 page Withdrawal Agreement she had negotiated with the European Union.  

Commentators were generally agreed that nothing like it had been seen in the Parliament since the Second World War. And again, likewise, the future of her country was, as then, at stake.

With less than 10 members showing any degree of overt support it seemed that her days as Prime Minister were strictly numbered and the survival of the Agreement itself similarly.

While I would disagree with their assessment, if Prime Minister Theresa May were not still in office when this is read Britain’s problems with Europe will not have been resolved or any better placed. Nature abhors a political vacuum and that is what would eventuate. No one else credibly will take her place. Neither Michael Gove (a Brexiteer, ambitious but not trusted), nor Boris Johnson (unbelievable). A Tory call by 48 members for a non-confidence vote would not succeed with the wider membership, and then they would have locked her into the premiership for a full year. Stupid they can be but not that stupid. The much denigrated Agreement is the only instrument that stands between order and chaos for Britain and Europe. What is being overlooked in this is that the Agreement is not the end game in itself but just the beginning of a new and more important negotiating phase – assuming that the time-frame for Brexit from now on is observed.

What is now clear is that among the numerous groups and factions there is no majority support for any one position on the withdrawal, certainly not on the way forward. What the Agreement does is that it gets the parties, the UK and the EU, to a stage where their future relationship can be sorted. Meanwhile a legal and orderly basis for trade, commerce, citizens’ entitlements, cross border transport and much else is provided. The border between Northern Ireland and Ireland will remain open within a single customs territory and common travel area. Britain will regain control over its agricultural and fisheries policies, and the sensitive matter of migration.

All of this could not be secured meanwhile without continued adherence to the rules and regulations of the existing customs union and to a large degree the single market. What has not been determined is Britain’s formal relationship with the EU after 2020. In that regard the Irish border issue has to be resolved by then or otherwise existing arrangements for the continuation of the single customs territory, with deeper inroads for Northern Ireland, will be extended indefinitely, essentially under EU control – an outcome which for Brexiteers would amount to a no-Brexit.

There will therefore be an impelling incentive, after 29th March and over the two year transition period following, to negotiate and settle the terms of the future relationship, and in a manner that leaves the Irish border open. The continuation of the single customs territory would preclude the UK from entering into separate trade agreements with third countries (including Australia); and a free trade area per se would still require a hard land border in respect of goods unless the free trade area were tariff and quota free.

This should not be a big ask for two areas with comparable or compatible economies. It would be highly consistent with trading trends in the developed world and would secure the presently threatened supply chains of the all-important multinational corporations in both areas and beyond. Services are in a different category and would be subject to a separate regime (intended to be ambitious) as not involving physical movement.

Where rules, regulations and standards inter-play between the respective territories, special joint tribunals could be established to resolve disputes that may arise – very civilised and practical. Such post-Brexit regimes would provide for cooperation between the UK and the EU on matters such as security and defence, policing, data protection, investment, citizens’ rights, transport and energy, services (as above) and financial services, investment and foreign policy – pretty much on existing lines give or take a little, but all solvable.

Following its formalisation with the WTO, the UK would then be free to enter into trade relations with other countries, with consideration for their affects on former partners – as might civilised neighbours show anywhere. The UK would be free of external controls except to the extent freely and mutually accepted.

Time-wise the draft Withdrawal Agreement will be submitted to the EU summit on 25th November and should be passed by the British Parliament before Christmas. If it is lost before then or later the UK will crash out of the EU on 29th March. If this development created a crisis and the fall of government, Britain could request an extension of the Article 50 period, a request that might however be declined. On the other hand there could be delays over acceptance of the Withdrawal Agreement within Europe itself (for example in the Netherlands, Belgium or France), which could stop the clock.

In any event there has to be agreement on what follows from 29th March 2019 and beyond. That is, the present Withdrawal document. At the least one would think all parties would want to keep the show on the road which otherwise could precipitate the Brexiteers greatest fear – no Brexit!

Yet even before then the ensuing maelstrom could prompt a 2nd Referendum which on present indications could be decisive in favour of the Remainers, leading to the withdrawal of the Article 50 notification and the restoration of the status quo ante. That would have to be agreed by all 27 remaining EU members. More probably we will in time see the UK in a free trade arrangement on the lines foreshadowed above.

Andrew Farran is a former diplomat, law academic and trade policy adviser.

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