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Divorced, But Still Living Together
How Theresa May’s deal with Brussels would keep Britain in the European Union in all but name.
According to Brexit’s leading advocates, the United Kingdom’s withdrawal from the European Union was going to be simple. Striking a free trade deal with the EU should be “one of the easiest in human history,” International Trade Secretary Liam Fox told reporters in July 2017. “The day after we vote to leave, we hold all the cards and we can choose the path we want,” Environment Secretary Michael Gove promised voters on the campaign trail in April 2016. Overall, Brexit would result in “a better deal for the people of this country, to save them money and to take control,” vowed leading Brexit ideologue Boris Johnson in the run-up to the 2016 referendum—a “deal that is exhilarating for this country, that is a massive opportunity and that liberates us to champion free trade round the world.”
Few of those heady promises have survived contact with reality. After two years of talks, and with less than six months to go before the U.K. is due to formally leave the EU on March 29, 2019, Prime Minister Theresa May emerged last week with a draft withdrawal plan that she must now persuade Parliament to ratify. The 500-plus-page text is “a remarkable document that’s united all kinds of people from every side of the debate,” observed one former senior Downing Street advisor. “Everybody hates it.”
Both ardent supporters of leaving the EU and those passionate about remaining agree—May’s deal offers something considerably worse than Britain’s current full membership of the EU, with none of the promised upsides.
Prominent Leaver Dominic Raab, who quit his post as Brexit secretary in protest of the deal, denounced the EU’s insistence that Britain follow its rules indefinitely as the price of continuing access to Europe’s single market. “No democratic nation has ever signed up to be bound by such an extensive regime, imposed externally without any democratic control over the laws to be applied, nor the ability to exit the arrangement,” Raab wrote in his resignation letter. He is one of the front-runners to succeed May in the event of a successful leadership challenge by hard-line Brexiteers.
Leading Remainer Jo Johnson likewise resigned as transport minister, for almost identical reasons. Asking Parliament to choose between May’s deal or no deal at all presented “a choice between two deeply unattractive outcomes, vassalage and chaos,” wrote Johnson, who described the deal as “a failure of British statecraft on a scale unseen since the Suez crisis.” (Johnson is the brother of arch-Leaver Boris Johnson.)
Other groups in Westminster’s Parliament also rushed to denounce May’s plan. Scottish Conservatives complained about fishing rights for European boats in British waters. Northern Ireland’s Democratic Unionist Party—on whose votes May depends for her working majority in Parliament—also vowed never to support the deal because it stipulates that an internal customs border between Northern Ireland and the rest of Britain would have to be set up if Britain were ever to move away from its current de facto membership of the single European market. And a border in the Irish Sea is something that the Democratic Unionist Party, which professes extreme loyalty to the U.K., would never countenance.
For good measure, the Labour opposition also confirmed that it would not support May’s deal and would press for a general election instead. With May’s chances of getting a majority for her deal close to nil, the Sun tabloid—hitherto a strong May supporter—described the current mess as “Brexs*it.”
Cue confusion and plots that have “plunged Britain into a state of chaos unprecedented in the postwar era,” in the words of Guardian columnist Owen Jones. One set of ultra-Brexiteer Conservative members of parliament known as the European Research Group has mounted a leadership challenge against May, hoping to replace her with a more ideologically committed Leaver. These ultras—led by the fogeyish former banker Jacob Rees-Mogg—offer little in terms of concrete alternatives to May’s plan other than crashing out of the union with no deal at all, which would bring swathes of the U.K. economy to a standstill. Even the influential Daily Mail newspaper, until recently a staunch defender of Brexit, lost patience with the anti-May plotters. “Have they lost the plot?” the paper asked in a vitriolic editorial last week denouncing the “preening Tory saboteurs.” But the paper also reported that nearly four out of five voters thought Brexit was “going badly”—and admitted that there have been significant swings toward staying in the European Union in some areas that voted to leave.
The reality is that May has “zero chance of getting a better deal” from Brussels, said one senior British official with knowledge of the talks. “And even this draft is too generous for many members.” A special meeting of the EU’s 27 remaining members in late November will have to approve the final draft even before the U.K. Parliament gets to vote on it. Spain has already signaled that it won’t agree unless assurances over the future status of Gibraltar—a British colony since 1713—are included. Other members could follow suit with their own demands—for instance over the rights of their citizens in the U.K.—despite chief EU negotiator Michel Barnier’s warning to members not to complicate the deal with last-minute interventions.
May promised that her plan would help the U.K. control its borders—a key concern among many Leave voters —and that the agreement with the EU meant that “we will be fully in control of who comes here.” In fact, that’s not true. Under the terms of Article 39 of the draft deal, the rights of EU citizens already living in the U.K. are guaranteed “for their lifetime”—in other words, as long as the youngest EU passport-carrying baby alive today lives. In the future, EU citizens will still have the right to travel and work freely in the U.K., say Articles 15 and 16—as well as having the right to settle in the U.K. after five years, just as they do today. On Monday, May promised in a speech to the Confederation of British Industry that EU citizens in the future would not be able to jump the line for residency and jobs—though under the terms of the Withdrawal Agreement, the only way the U.K. will be able to do that will be to give non-EU nationals the same rights as EU citizens.
The document also undermines claims that Britain will be taking back control in several significant ways. Article 7 of the Withdrawal Agreement says that “all references to Member States … shall be understood as including the United Kingdom.” For legal and trading purposes, therefore, the EU will regard the U.K. as effectively still a member—but without any members of the European Parliament, a commissioner, or judges on the European Court of Justice.
Furthermore, despite May’s explicit promise in October 2016 that “the authority of EU law in this country has ended forever … We are not leaving only to return to the jurisdiction of the ECJ. That’s not going to happen,” the draft agreement says just the opposite. In Article 158, it stipulates that the European Court of Justice’s authority will remain supreme until eight years after the end of the transition period. Currently, that transition period is set for two years—but the Withdrawal Agreement states clearly that the permanent deal that replaces it will be made on Europe’s terms.
The draft deal is “actually rather grimly comic. It’s worse than membership in every possible way,” complained the British official with knowledge of the negotiations, who was not authorized to speak on the record. “There’s literally no visible upside.” The proposed arrangement—effectively membership in all but name—not only prevents the U.K. from striking its own trade deals with outside countries but also binds Britain to accept all future EU trade deals and legislation without having any say in them. Even May’s much-publicized plans for controlling immigration would be quite possible within EU law, according to a piece in the Guardian by Charles Clarke and Alan Johnson, both former Labour home secretaries.
And then there’s the money. Under the deal, the U.K. agrees to make payments said to total some 40 billion euros, over $45 billion, to receive all of the dubious “privileges” of associate membership set out in the document.
There are now at least three possible outcomes—assuming that May survives a possible leadership challenge (which looks likely given that she is outscoring her nearest contender, Boris Johnson, by 62 percent to 15 percent among Conservative voters). If both the EU and Parliament ratify the agreement, the U.K. will formally leave the EU next March—but effectively continue to follow all its rules. If May cannot summon a parliamentary majority, she has two options: to call another general election (an extremely unlikely option, given that the ruling Conservatives are suffering badly in the polls as a result of their poor handling of the Brexit crisis) or to announce a second referendum (a course of action that she herself has explicitly rejected). Or, of course, Britain could blunder toward the door with no deal in place and take its chances trading with the EU under World Trade Organization rules. But even that option would be subject to ratification by all WTO members, including Russia, which has already issued a formal objection to the U.K.’s proposed post-Brexit list of tariffs. The WTO can’t certify the terms of British trade with the EU until the problem is resolved. This “no deal” Brexit is opposed by the vast majority of MPs fearful of disruption to food and medical supplies and the devastation of just-in-time cross-European supply chains.
The likelihood of a second referendum—or People’s Vote, as its supporters euphemistically call it—will certainly rise if there is parliamentary deadlock. But Labour’s left-leaning leader, Jeremy Corbyn, is a lifelong Euroskeptic (unlike the majority of the members of his party) and has hitherto been lukewarm about calling for a new referendum. And though backing inside all parties for a People’s Vote has increased in the wake of a 700,000-strong demonstration last month in London, the government continues to oppose it—and is able to deny Parliament time to debate the option. Instead, according to a source close to a recently resigned cabinet minister, the government will likely doggedly press for ratification of its deal throughout the winter.
“Theresa’s a juggernaut. She’ll just bang on about ‘my way or the highway’ and terrify MPs with [the prospect of] no-deal until they fall in line,” the source said. “The question is going to be: deal or no deal, not Brexit or no Brexit. Or at least that’s what the government want the question to be.”
The EU, for its part, has signaled that it may be willing to postpone the date of Britain’s departure—but only if a second referendum is actually called, not merely for more negotiations.
So far, the most likely outcome of the Brexit deal is the one outlined in the Withdrawal Agreement: Brexit in name only, on the EU’s terms, with Britain unequivocally forfeiting control to Brussels. In other words, more or less exactly the opposite of what the Brexit campaign promised its voters.