HAJO DUKEN. Brexit, preservation of the UK union and a deep and special relationship with the EU – two out of thre e ain’t bad (but far from certain)

Jul 17, 2019

Whenever we think that the level of absurdity in this drama cannot be exceeded, we are proven wrong. It appears that England (not the whole of the UK) has virtually decided that the earth is flat. Is a no-deal horror scenario now inevitable or is there a way out for the new Prime Minister?

One could truly forgive anybody (including any EU official and European politician) who has by now given up on England.

The remaining contenders for the leadership of the Conservative Party have declared that they would renegotiate the current draft Withdrawal Agreement (‘WA’). The frontrunner, Boris Johnson, has categorically excluded asking the EU for yet another extension that would keep the UK in the EU beyond 31 October 2019 (‘do or die’), and is obviously willing to close down parliament so that it cannot get in his way.

Theresa May, in her last weeks as PM, has again made an ‘invaluable’ contribution by reminding her party as well as her successor that the preservation of the union (the UK) is the primary duty of every PM. This is the same May who spent 3 years describing it as her almost sacred duty to deliver Brexit to the British (meaning English) people, who made herself dependent on the DUP, and who constantly put the interests of her party before the union’s interest.

The leader of the opposition has so far managed to withstand any pressure to turn the Labour Party into a ‘Remain’ party or to outline any clear strategy for a second referendum. He remains a true last century socialist nationalist who believes that economies should be planned and run by national governments, a position that is in fundamental conflict with EU law on state aid and irreconcilable with the core EU concept of a single market.

And the English public does not make any greater impression. In the European election, millions voted for the Brexit Party, which used the first opportunity to draw an unambiguous picture of themselves and the people they represent (who knew exactly what they voted for) by turning their back on the European Parliament and waffling something about ending slavery.

The EU27 made it absolutely clear from the beginning that the core issues that needed to be addressed in the WA were money (the financial settlement amount estimated to be around £37.8 billion), people (citizenship rights) and Ireland (meaning the currently open border between the Republic of Ireland and Northern Ireland). Consequently, the negotiated WA addresses those matters and provides (amongst other things) for a transition period ending on 31 December 2020. The most controversial element of the draft WA, which the hardliners in the Conservative Party including Boris Johnson want removed, is the ‘backstop’. In order to maintain the open border in Northern Ireland, the ‘backstop’ effectively keeps the whole of the UK in the customs union with the EU until an agreement regarding the future is reached. For the EU, the ‘backstop’ is absolutely critical (and arguably the most important element of the WA) as it provides the lowest acceptable degree of certainty that the border in Northern Ireland remains open and the Good Friday Agreement will be respected.

The EU and the governments of the EU27 have repeatedly stated that; (a) the WA will not be reopened and remains the only agreement on offer; (b) if the UK Parliament does not approve the WA in full and as it currently stands, then all aspects of the package including the transition period and the political declaration regarding the future EU/UK relationship are off the table, effectively meaning that there won’t be any negotiations about a “deep and special” relationship in the foreseeable future; and (c) any extension of the Article 50 period beyond 31 October 2019 would require a commitment by the UK to a ‘democratic event’, currently understood to be either a general election or a second referendum. It is also important to emphasise that any change of the EU’s current position would require a unanimous decision of all 27 Heads of State and Government in the European Council.

So, what realistic scenarios does this all leave?

(1) Even if there was a possibility to renegotiate the WA, it is inconceivable that such a process could be completed by 31 October 2019, meaning without a further extension of the Article 50 period. There is simply not enough time.

(2) Without extension, only three scenarios remain possible:

(a) The new PM could miraculously convince himself and the majority in parliament that the current draft WA is not just the only deal on offer but also the best option for the UK. In this case, the UK would leave the EU on 31 October 2019 in an orderly fashion and both sides could commence negotiations about the future without delay. However, this would make it immediately obvious that Brexit and the WA were only the smaller and easer parts of the process and that the real big topics would now need to be attacked The new government (being still a minority government) would be fully occupied with the negotiations about the future relationship until the end of its term in 2022. Fundamental disputes in parliament and within the Conservative Party about every single aspect would dominate the government’s daily life, accompanied by media storms and public outcries and a series of no-confidence votes. This all sounds too hard, particularly for somebody like Boris Johnson.

(b) The new PM could surprise us all by deciding to revoke the Article 50 notice during the last days before 31 October. He would, of course, make a point of reserving the UK’s right to issue a new notice whenever it thinks fit. Yes, this would upset the hardliners in his own party, but the majority in parliament would probably follow him. Such a coup could buy the government much needed breathing space and enough time to regroup before the next general election. A likely scenario? Certainly not, but the outlook of a quieter term with more room for lazy government by kicking the Brexit can (far) down the road, might still be tempting for Boris Johnson, who has never really been troubled by values, political principles or his own promises.

(c) Finally, there is the (still most likely) scenario of a no-deal Brexit. Nobody can really predict the consequences in detail, but it appears to be clear that the UK has much more to lose than the EU, whilst the EU is much better prepared for this scenario. The UK government will immediately find itself in crisis mode, and crisis management and delivering bad news to the British people will become the new government’s daily bread and butter. Not really appealing to a new PM either.

(3) So, is this it? Is there really no proposal that could convince the EU to reopen the WA and allow the new PM to ask for, and the EU to grant a further extension, whilst still delivering Brexit and paving the way for a deep and special relationship? Not necessarily, but such a proposal would require a PM who is willing to make an effort to fully understand his counterpart (the EU), who is able to accept realities, and who is able to show strong leadership.

First and foremost, the new PM and his aides must be able to paint a very realistic picture of what is likely to happen in the UK and in Europe after Brexit. Even in the case of an orderly Brexit (with a WA), the UK will soon realise that trade is by far not the most pressing issue for the EU in subsequent negotiations. The EU will have no other option but to make any substantial trade deal conditional upon the resolution of open territorial questions. Spain (who could only just be persuaded to not link Gibraltar to the WA) will veto any future deal unless the Gibraltar conflict is also resolved to its satisfaction. Ireland will insist that a permanent solution of the Northern Irish question will be prioritised and such a solution is hardly thinkable without a cleverly designed referendum on Irish unification. The support for Scottish independence in the EU is also growing and Nicola Sturgeon will have little trouble in drumming up further support in Brussels and the EU27 for Scottish independence and subsequent EU membership.

The future after a no-deal Brexit looks even bleaker. The EU will have no reason to offer the UK any special deal and new violence in Northern Ireland may only be a question of time. The new PM may soon be confronted with the question whether he wants to resort to police/military force in order to secure the union (in Northern Ireland, Gibraltar and potentially Scotland) and what such a step would do to the relationship between the UK and the rest of Europe. A cold war between the UK and the EU would not be a completely unrealistic scenario.

If the new PM accepts early that the union is a lost cause after Brexit in any event, and that the union could only ever survive within the framework of the EU, then the PM has an opportunity to turn the tables in the negotiations with the EU. The EU will not simply forego the ‘backstop’ in the WA. However, as the ‘backstop’ is only designed as a temporary guarantee until a permanent solution is agreed, the EU could and would not hesitate to reopen the WA, if the UK offered a permanent solution for Northern Ireland which would need to include a binding pathway to a referendum on Irish unification. The EU would most likely consider a planned referendum in Northern Ireland as a ‘democratic event’ justifying a further (possibly long) extension of the Article 50 period. The new PM could rely on the fact that the English have long lost their interest in Northern Ireland and also point to recent polls showing that the majority of Brexiteers would happily sacrifice Northern Ireland and Scotland for Brexit. The then very realistic prospect of a better WA as well as a much deeper relationship with the EU in the future may well convince parliament (only the DUP would jump up and down) and the public to support the necessary extension under Article 50. The new PM could then also hope for a relatively quiet remainder of the parliamentary term with the good chance (if all goes according to plan) of winning the next election, achieving immortality, and possibly even being nominated for the Nobel Peace Prize.

So, will the new PM have what it takes and accept that two out of three (Brexit, preservation of the union, deep future relationship with the EU) is the best possible outcome for any UK government, or will he risk losing everything for a Pyrrhic Brexit victory? The world will be watching.

Hajo Duken is a lawyer admitted in Germany and Australia. He has practised in EU law and designed and delivered seminars and lectures on EU, constitutional and international law throughout his career. In Australia he worked in private practice and held senior legal in-house positions in various industries.

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