DISCUSSION PAPER EUROPEAN POLITICS AND INSTITUTIONS PROGRAMME 17 SEPTEMBER 2019 Brexit: How was it for you? Andrew Duff Credit: European Union - 2019 Table of contents PART ONE: THE PRESENT 3 Bumps in the secession road 3 There can still be a deal 3 Goodbye to the Political Declaration 4 Yet another extension? 4 PART TWO: THE PAST 5 Article 50 revisited 5 Cameron’s legacy 6 Second chance 6 Guidelines and core principles 6 Toughening up 7 A constitutional moment 8 PART THREE: THE FUTURE 8 Towards association 8 The need for bipartisanship 9 Rejoining under Article 49 9 A Reformed European Union 10 Endnotes 11 ABOUT THE AUTHOR Andrew Duff is President of the Spinelli Group and a Visiting Fellow at the European Policy Centre. He was a member of the European Parliament 1999-2014. He tweets @AndrewDuffEU. 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PART ONE: THE PRESENT BUMPS IN THE SECESSION ROAD The Act says that the purpose of the extension is “in order to debate and pass a Bill to implement” the On 10 November 2015, after months of veiled threats, Withdrawal Agreement, “including provisions reflecting Prime Minister David Cameron wrote a letter to Donald the outcome of inter-party talks as announced by the Tusk, President of the European Council, demanding Prime Minister on 21 May 2019, and in particular the a renegotiation of the terms of Britain’s membership need for the UK to secure changes to the political of the European Union.1 Four years on and three prime declaration to reflect the outcome of those interparty ministers later, we may be about to see the denouement talks”. That last clause was tabled by Stephen Kinnock of Brexit. MP, a leading Labour figure on the side of compromise. Significantly, the amendment was accepted by the government without a vote. In the speech referred to, Mrs May offered a ‘New Against the sceptics and cynics, Brexit Deal’ with a ten-point plan, to be guaranteed by law, some of which merely concerned parliamentary Mr Johnson continues to argue that procedures at Westminster, along with the promise of he is trying for a deal. a Commons’ vote on holding a second referendum. The sticking point at the cross-party talks concerned the degree to which the UK would continue to align itself with the EU customs union. Mrs May offered Labour a compromise option of a temporary customs union on Nothing is yet certain, and there will be many more goods only, including seeking a UK say in relevant EU surprises – “bumps in the road”, as Boris Johnson calls trade policy. Effectively, this meant that it would be them – before the UK’s relationship with the EU is up to the next government, after the May 2022 general stabilised. But if the prime minister is to be believed election, to decide on the final direction of UK policy. (and why not?) the UK will secede from the EU at Her ten concessions were Mrs May’s last roll of the dice. midnight on 31 October – deal or no deal.2 After a brutal reception in the Commons and a cabinet resignation on 22 May, and the results of the European Against the sceptics and cynics, Mr Johnson continues Parliamentary elections on 23rd, the prime minister to argue that he is trying for a deal. He has good reason resigned on 24th. to do so. He knows, like we do, that Brexit without a deal would be very harmful for the British economy It is nevertheless significant that Boris Johnson has and society. The threat of no deal has split his own tacitly agreed to resurrect the May package. He has more party, perhaps irrevocably. The prime minister has lost flexibility than his predecessor for two reasons. Having the slender parliamentary majority he inherited from lost his Commons majority he is no longer dependent Theresa May. Cabinet responsibility, which is one of on the votes of the ten DUP MPs who oppose a Northern the core disciplines of Britain’s famously unwritten Ireland-only deal. Few English nationalists make constitution, has disintegrated. Civic disorder is rising. Ireland, North or South, their priority. And the hard- The devolution arrangements in Scotland, Wales and right Brexiteers know that if Mr Johnson does not deliver Northern Ireland are creaking under pressure. The Brexit, nobody else will: he is their last chance. courts, including the UK Supreme Court, have had to intervene on the matter of parliamentary prerogative versus executive power. The government’s decision to prorogue Parliament on 9 September until 14 October has dragged the Queen into the constitutional furore. The very great advantage that a deal brings over no deal is the gift of the THERE CAN STILL BE A DEAL transition period. To add insult to his injury, the prime minister finds himself trammelled by the cleverly crafted terms of the EU Withdrawal (No. 2) Act 2019, promoted by Labour’s Hilary Benn MP with the support of pro-European Tory A revised Irish backstop that left Northern Ireland fully rebels. The new law instructs Mr Johnson to write to Mr aligned with the Republic for trade in farm produce Tusk by 19 October requesting an extension of Article 50 – which is, in any case, the preferred option of the until 31 January 2020 if either no deal has been reached European Commission – is unlikely to be blocked in by then, or if there has been no agreement by then fixing the House of Commons. The EU has already committed a date for a no deal exit. itself to helping the UK and Ireland discover ‘alternative arrangements’ that would minimise the need for border 3 checks. It should be possible to specify more exactly consensus about the Withdrawal Agreement now turns what ‘no hard border’ really means in terms of trade in out to be an obstacle. essential goods and services. Other clarifications could be made to bring the governance of the post-Brexit settlement more explicitly in line with the North-South institutional machinery established under the Good Friday Agreement, which might include a bigger role for It remains the case that the best way the Stormont executive and assembly in determining the future of the province. Stormont could even be given to avoid no deal is to do a deal. As a guaranteed place on the Joint Committee that is to successive votes have shown, there is manage the Withdrawal Agreement. no obvious Commons’ majority for any other option – including a second If Mr Johnson delivers the concessions in the Kinnock referendum, revocation of Article 50 package guaranteeing no regression by the UK from the highest EU social and environmental standards, he or a snap general election. will gain support at Westminster from the moderate majority. He could even risk a Commons’ vote on a second referendum, as did Mrs May, in the safe knowledge that it would not pass. In these circumstances, it would seem best to jettison The very great advantage that a deal brings over no deal the Political Declaration entirely, and invite the is the gift of the transition period, designed under the Commons to vote only on the Withdrawal Agreement. terms of the Withdrawal Agreement to avoid disruption An exchange of letters setting out the modalities of the and keep supply lines open. The transition period is future talks, with scope and timetable, should suffice due to expire in December 2020, but can be extended to fulfil the Article 50 requirement to take into account by one or two years.3 Even that, however, may not give the framework for the future relationship. In truth, enough time to conclude the final treaty with the UK. nothing substantive can be agreed on customs outside So Mr Johnson would be wise to ask for a new protocol the negotiations of the future free trade agreement. to be added to the Withdrawal Agreement that would Only the nitty-gritty of a trade negotiation undertaken allow the transition period to be further extended, if during a necessarily lengthy transition period will settle necessary, to elide with the entry into force of whatever the issues of customs and tariffs and determine how the final treaty between the EU and the UK will be. frictionless future trade will be. Apart from other advantages, such a flexible extension to the transition would obviate the need to deploy the A deal on these lines is possible before the end of Irish backstop. October. It remains the case that the best way to avoid no deal is to do a deal. As successive votes have shown, there is no obvious Commons’ majority for any other option – including a second referendum, revocation of Article 50 or a snap general election. In these circumstances, it would seem If the deal on such a basis can be done at the European best to jettison the Political Declaration Council on 17-18 October, the House of Commons will entirely, and invite the Commons to vote have to deliver its positive ‘meaningful vote’ (as it is only on the Withdrawal Agreement. bound to do under the terms of the EU Withdrawal Act 2018) in double-quick time, so that the European Parliament can then ratify the package.4 Thereafter, once the deal is done, both Houses of the British Parliament will need to enact the much-anticipated Withdrawal Agreement Bill, which should be the priority item of the GOODBYE TO THE POLITICAL DECLARATION Queen’s Speech on 14 October.