Confused about what Brexit actually means and how it will impact you? This month, STAND’s Brexit Series will help you understand how we got in this situation, what the proposed deal contains, where the negotiations are at now, and how a no-deal will impact Ireland, the UK and more widely the EU.

 

Let’s start with the basics…

 

 A bit of history: How did the UK get to vote for Leave? 

When World War II was over, many countries around the world, especially in Europe, decided it was time to cooperate to insure peace and stability for all. But in the mid 20th century, as the European Economic Community (ECC) started to take shape, the UK showed no real interest to be part of any kind of Union, even though they were at negotiation tables. Eventually, when the UK realised that the EEC was actually working well, it tried to jump on the bandwagon. 

Once within the EU, the UK objected to every reform of the fundamental Treaties the Union wanted to make. It also negotiated every possible opt-out, signifying that it has always asked for a special status when the Union legislates on a particular subject, and obtained it. Sometimes, it has brought Ireland along to the opt-out side, as in the negotiations of the Treaty of Amsterdam (1997). Indeed, the UK didn’t want to join the European Customs Union as intended in the Schengen agreement, which was to be part of the Amsterdam’s Treaty. Ireland and the UK already having a customs union of their own, Ireland opted-out too. 

When it comes to understanding the relationship between the Union and the UK, the British electoral system is also of great importance. Every national campaign has been based on addressing what the outgoing Government failed to achieve. So, whenever a national issue emerged, politicians blamed the decisions made by the country’s leaders at the time. In an attempt to be re-elected, most of them would accuse the Union to be the mother of all devils. In response, the opposition would promise that this would never have happened under their governance, because they would never let the Union dictate them what decision to make. One could think this has instilled a sense of mistrust towards the EU in many British citizens.

In running for re-election in 2015, David Cameron, Prime Minister at the time, made the Brexit referendum a campaign promise. Once re-elected, he organized the election on the 23rd of June 2016. What came next was not on his agenda. The “leave” poll won by 51,9%. Forced to admit the defeat of the “remain” campaign, Cameron stepped down the very next day. A few weeks later, Theresa May swore in. The British Parliament gave the green light to trigger article 50 of the Treaty of Rome in February, and so did PM May on the 29th March of 2017. 

 

 

A bit of legal procedure: What says article 50?

The Treaty on the functioning of the European Union, also called Treaty of Rome, equipped itself with article 50 in 2007 thanks to the Treaty of Lisbon. This article gives a unilateral right to any member state which would want to leave the Union to do so, as long as it notifies the European Council and respects its national constitutional rules. Once triggered, the leaving state has two years to negotiate a “divorce” settlement. Obviously, this lapse can be extended, if the departing state asks for it and if the European Council agrees to it by unanimity. 

However, nothing is said in the treaty about revoking this notification to leave. Therefore, the Court of Justice of the European Union had to rule on this eventuality, and decided that such a revoking right exists, that it is a unilateral right such as the right to leave (understand: the EU could not go against a withdrawal). 

 

 

A closer look at the negotiations results: What is in the draft agreement negociated by the EU and PM May?

Heads up: we don’t pretend to give a complete lecture of the 585 page draft agreement here! We are just trying to give an overall view of what’s written in this draft. 

The draft agreement is divided into six parts and three protocols. 

The first part enumerates the common provisions. It lays some general rules, including the obligation for the UK to keep following the European Court of Justice (ECJ) decisions whenever European law keeps applying. Interesting when you remember the leave campaign stated that the UK would be outside the reach of the ECJ… The draft also reveals that the agreement shall have a direct effect, allowing the judges to find breaches of the agreement itself. Therefore, no need to invoke another bill that would transpose the content of the agreement into national law.

In part II, the negotiators focused on the European citizens. Every British individual that lives in another Union state, and every foreign European citizen that lives in the UK, will be granted the same rights he/she enjoys now in various matters such as rights of residence, social security rights, workers’ rights, until the end of the transition period.

Talking about the transition period, it is organized in Part IV of the draft. At the time, the parties agreed on the 31stDecember 2020 as the date of the end of the transition. An adjournment might be granted but only once and it can’t exceed two years. Being in transition would mean that the UK is officially out of the Union, so it can’t vote nor take part of the decision anymore, but has to keep following many European rules in the meantime, while the future of the British-European relationships is discussed. The purpose of the transition is to give some more time to negotiate a Treaty on future relations, once the divorce has been consummated. 

The fifth part settles the financial agreement. Both sides agreed on the maths instead of an amount. The formula is based on three principles. One, no European state should pay more to, nor receive less from the Union because of Brexit. Two, the UK has to pay for the commitments it made while being in the Union. Three, the UK should not pay more to the Union than if it had stayed within the Union. 

The first Protocol talks about Ireland and Northern Ireland. It seems clear that the negotiators did all they could to prevent the implementation of a hard border on the Irish isle, mainly to preserve the peace process in Ulster. So they came up with the “backstop”. Concretely, there would be a deeply intense cooperation between the two parties. So deep that the UK would follow most of the European customs rules, preventing the need of border controls. This solution is meant to be applicable during the transition period only, again to give the parties more time to reach a settlement on the matter post-divorce. 

At the origin, the backstop was supposed to be applicable in Ulster only and not in Great Britain. That was without thinking about the DUP, a unionist party in Northern Ireland that allowed PM May to have a majority coalition in the Parliament. The DUP refused to consider an offer that would put Northern Ireland under different rules than the rest of the UK, and additionally quite similar than those followed by Ireland. Therefore, PM May had no choice but to extend the backstop to the whole UK. 

This solution doesn’t please many Brits, and is the main reason why the draft is still a draft. On one hand, the backstop goes against the hard Brexit encouraged by some, and on the other hand, this means following some rules that you don’t get to edict anymore.

 

 

A quick update: What’s happening now? 

Since late July 2019, Boris Johnson is the head of the British state. His dearest wish is to deliver a “Halloween” Brexit no matter what, with or without a deal. But that was leaving aside the Parliament’s will. On the 4th of September 2019, the Lords voted a bill against a no-deal Brexit. If by the 19th of October PM Johnson has not reached an agreement with the Union, he will have to ask for an adjournment. 

So far, the Union was opposed to both reopening the negotiations and granting an adjournment, in regards of the PM’s declarations about Brexit and the EU. Anyway, things might be getting slightly different now. Johnson recently submitted an updated version of the draft agreement to the Union. The latter might be more open to consider an adjournment if the British PM made interesting propositions, and if elections were to be held in the country. Slight problem, the Parliament voted twice against the holding of new legislative elections… However, the Lords might change their minds if the Union gives the UK more time.

We should know a bit more about how the situation will evolve on the 4th October, as Stephen Barclay, the British Brexit Secretary, and Michel Barnier, the EU’s chief negotiator, will meet. 

 

 

 

Photo by John Cameron on Unsplash

 

 

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