Mrs May aimed to get (legal) assurances from her EU partners about the modalities how to apply –and end– the agreed ‘backstop’, the arrangement according to which at the end of the transition period –and unless by that time an alternative solution would have been agreed– a EU-UK ‘single customs territory’ will be established in the context of which Northern Ireland will also remain bound to the EU basic internal market rules. Brexiteers do consider such a straitjacket unacceptable because, according to the present texts, the UK will not be able to terminate the backstop unilaterally. The arrangement will also hinder the UK to conclude trade agreements with other countries.
However, the European Council of 13 December only concluded that it is ‘the Union’s firm determination’ to work speedily on a further agreement with the UK that establishes by the end of the transition period alternative arrangements, so that the backstop will not need to be triggered. So, the European Council offers a political expression of good will, however no (legal) assurances.
Now, three points:
- The consequences of a departure from the EU have -from the outset- not been thought through by the British Government and, therefore, also not been explained to the public. In a poisonous atmosphere UK citizens were in 2016 essentially provided with a ‘black’ or ‘white’ choice: ‘leave’ or ‘remain’. However, the withdrawal negotiations have shown that the problematic is a bit more complicated than that!
- Once the British Government realized the consequences of a Brexit in the particular context of the border between Northern Ireland and Ireland, it proposed to make that new external EU border ‘invisible’. However, that is an almost impossible objective to achieve. Because, goods crossing an external EU border have to be submitted to customs controls and checked on substantive standards and requirements. Now, certainly, for the customs dimension of the controls a solution may be found. On the contrary, ‘technology’, as Mrs May hinted at during her address to Parliament on 10 December, can –at least for the time being– not be a, let alone the only, solution to facilitate free movement at that border.
- The way the Brexit file has been dealt with by British politics, illustrates that the remaining problems cannot be solved by the EU, but exclusively in the UK. However, the ruling Conservative party is deeply divided; Labour Party Leader Jeremy Corbyn essentially aims to reject the –or, rather, any– Withdrawal Agreement in order to provoke new general elections; and the Brexit deal itself has gradually become –too much by now– the ‘personal baby’ of the Prime Minister.
As a result Mrs May has become isolated in the debate in Parliament. And, perhaps more importantly, there seems to be no majority in the British Parliament for whichever withdrawal approach.
All in all British politics is not in a position to take a carefully considered decision about the Withdrawal Agreement. The organisation of new general elections will also not solve the matter, as divisions about Brexit within and between the most important parties will continue to exist.
The only logical option therefore is to allow the British people to speak out once more. The people has been misinformed –not to say mislead– in 2016 when asked for a vote on Brexit; the people has witnessed what a chaos has arisen in Britain during and after the end of the withdrawal negotiations; and politics in the country finds itself in complete disarray.
Again, if politics cannot solve the issue, then let the people do it! A second referendum is –by far– the best option. Three choices should be submitted to the people: the present deal, no deal or remain.
In this context two side-remarks:
- In its judgment of 10 December the Court of Justice has concluded that the United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU, as long as the departure has not effectively taken place. For obvious reasons that option has never been considered by the British Government. However, in the confused situation that has come about, no option can be excluded anymore.
- According to the third paragraph of Article 50 TEU the European Council, in agreement with the British Government, can decide unanimously to postpone the withdrawal date. Also this option has always been considered as outside political reality. However, since the whole Brexit discussion has become somewhat unrealistic, this possibility can serve as another tool to find a way out from the present impasse.
Discussion to be continued…
Jaap de Zwaan, TEPSA Secretary-General