Nothing got done

The fate of Ireland, Brexit and the UK unresolved after the election

The result of the recent UK election, whether one likes or not, has been unambiguous: there is a new and clear majority determined to “get Brexit done”. Brexit, however, contrary to what the Prime Minister “promised” and won the election on, remains far from done and far from clear. The first step, approval of the Withdrawal Bill, on the basis of the text agreed on the 18th of October, has become a certainty, but three major issues remain completely unresolved: the “Irish question”, the “new trade relationship” with the EU and the UK situation, starting with its unity, before and after the trade deal, if there is one. It is therefore time, after the celebrations and the commiserations, to revisit the real problems which lie stubbornly ahead despite having been neglected in the electoral campaign.

Scrutiny of the elements of Mr. Johnson’s already negotiated and not to be re-opened “withdrawal arrangement” would reveal it to be the opposite of a “good deal”. Understanding of how the EU tackles and agrees trade deals with its partners would show that such a deal cannot be negotiated in eleven months and cannot be “amicable”, in the sense that the PM and his new majority understand it. And using logic and realism, instead of the alchemic recipe which produced both the “withdrawal arrangement” and the electoral result, would point at a worse future both for the UK and the EU, regardless of how and when their “divorce” is sealed.

A fatal reversal on Ireland
Nowhere is the discrepancy between presentation and reality more pronounced than in the arrangements concerning the Irish problem. In fact, the agreed “arrangement” reneges on at least three of the essential pledges Mr. Johnson has repeatedly made and constitutes a step backward, even when compared to the “May arrangement”.

Firstly, the contentious and vilified backstop has been replaced with what one could call a “full stop”, a quasi-definitive future arrangement whereby Northern Ireland would remain in a different legal and practical regime from the rest of the UK for an indeterminate period of time. This period could turn out to be four years (the special transition period enshrined for Northern Ireland) starting from 1/1/2021 (the overall transition period granted to the whole of the UK), or eight years (if by a very complex institutional arrangement a body deemed to be representative of all Northern Ireland communities so decides) or forever (following subsequent votes or the force of things).

Secondly, the arrangement hinges on a totally unheard of, both from a constitutional and a political point of view, transformation of meat into fish: “de jure”, i.e in what will be officially agreed, Northern Ireland is supposed to be staying in the UK legal sphere, whereas “de facto”, i.e in real life, it will, possibly forever, remain in the EU customs Union. The EU institutions are bracing themselves on how to confront this strange dish, but at least they will not have to digest it. This will be left to the UK and Ireland, and so the question pops up even more urgently than before the elections: can the UK parliamentarians and the UK public, in the name of “moving on” and “getting over with this mess”, accept to be so openly misled by their political leaders?

Thirdly, from “no barriers”, a “fully united UK” and “completely frictionless trade” within both the whole of the UK and the whole of Ireland, what is being put forward would entail a border –hard or light, it will always be a border, since checks will take place- down the Irish Sea. Customs checks, following EU and not UK standards, will take place for goods, and people, travelling from Britain to Ireland and vice versa. This is the –logical- price to pay in order that there are no checks and no barriers within the island of Ireland; but it greatly differs from Mrs. May’s never admitting divisions within the UK isles, or Mr. Johnson’s pronouncement that no red lines have been crossed.

What is even more extraordinary, and undemocratic, is that the Prime Minister has consciously opted, both before and during the electoral campaign, for not telling the truth (“there will be no checks between Northern Ireland and Britain under the new deal”), despite being corrected by the ever vigilant Mr. Barnier (“all applicable procedures on goods will take place at the points of entry into Northern Ireland”) and by both the Home Secretary and the Brexit Minister (“firms in Northern Ireland would have to fill out forms when sending goods to Britain”) of his former government. Will those officials forget what they said, and what is true, if they remain in the new government? Mr. Barnier, who will continue as EU-negotiator-in-chief during the whole transitional period, will surely not.

Towards sustained animosity with the EU
Perhaps less immediately important for the British population, and certainly less fatal for the Irish, is another consequence of the “arrangement”, which also constitutes a departure of what had been previously negotiated: from the prospect of future amicable relationship with the EU, Mr. Johnson, especially after the election, will be openly pulling the UK towards a confrontational path.

The reference in the political declaration that the “United Kingdom will –not “may”- consider aligning with Union rules in relevant areas” has disappeared. Instead, albeit grudgingly accepting that EU law will still apply, and supersede UK law, during the transition period and that the “divorce bill” will be honoured, the new “arrangement” will put in place two mechanisms not facilitating the search of common solutions: a) a “parliamentary lock” over extending the transition period, whereby only the government may, if it so wishes, pass a motion in Parliament asking for an extension, while the Parliament cannot take the same initiative and b) a “legal lock” over the future relationship, which excludes customs union and aligned free trade agreements. There, in flames, go “Canada-plus” and “Norway” and there, in bright letters, it is written “third country with no special regime”.

For the UK, the name of the game, after 2021, will be competition, uneven playing field and unreliability. This is how Mr. Johnson understands “friendship” and this how he shall enact it if he wants to honour his electoral pledges.

In preparing the future “deal” between the UK and the EU, the parties will be starting with opposing objectives: the EU will be aiming at a libre-echange Treaty with no tariffs, no quotas and no social dumping by the UK; the UK will be trying to extract itself from as much regulation as it can, forge a separate, and competitive, “business identity” and agree on “general principles” rather than on the technical and very intricate aspects of all the complex and disparate fields to be covered before a new deal may be finalised. The simultaneous pursuit of these objectives by the parties will make a deal very difficult, if not impossible: as the French President has already warned, regulatory harmonisation would be the price for the continuation of UK-EU trade flows –but this harmonisation, at least in some areas, is exactly what the UK government will try to avert.

The calendar is very tight and does not seem to give the UK any advantage. After the “withdrawal arrangement” is passed by the new UK parliament, probably in the course of this year, and then the “Withdrawal Bill” is voted, with possible amendments, well before the 31st of January 2020, so as to give time for ratification to the European Parliament, there are three main steps/decisions to be jointly taken: a decision, as soon as possible after the official departure of the UK on the 31st of January 2020, on the overall architecture of the new deal; a decision, at the latest in July 2020, on whether to extend the transition period for one or two years; and a decision, before the end of 2020, on whether a deal is possible or if it must be discarded. In all those steps, the EU, already better prepared, will be calling the shots, as demonstrated in the previous phase of the negotiations, in which it imposed both the rhythm and the topics of the negotiations.

The politics of abandonment
On the deepest level, both the “withdrawal arrangement” and the “new deal” will very probably signify weaker labour market, climate and environmental standards for UK citizens. Non-alignment with EU standards has been enshrined as a possibility and the UK government has been given a saying, which in fact is a decision-making power, on whether the protection granted on EU worker’s rights is greater than the protection granted by UK legislation and on whether the UK “intends” –but does not commit itself, even if EU protection is deemed to be higher- to replicate them.

Moreover, it now transpires that the “guaranteed” rights of EU citizens residing in the UK have a cut-off date –the end of the transitional period- and, after that, nothing is secured or settled. EU citizens would retain for eight years the right to appeal before the European Court of Justice (whose decisions, by that time, will not be fully recognised by the UK), but their legal status would be uncertain and would depend on “independent” and unilateral UK legislation.
It is obvious that the “arrangement” sees people as chips in a game and is less interested in granting them the highest possible standards of working and living.

The loss of the existing “passport” for financial activities will necessitate a different, and completely antagonistic, stance in one of most important sectors for both the UK and the EU economy. Here also there is a danger that the UK opts for a “Singapore” model within Europe, with less regulation, taxation and consumer protection. If this can still be avoided, since it is not to the benefit of the City of London to appear as directly confrontational to the rest of the EU markets, the demise of the Capital Market Unions project is all but certain.

Neither Johnson’s “arrangement”, nor his electoral victory resolves any issue. Almost everything remains open, and one or more years of acrimonious negotiations loom ahead. There is no realistic chance of an “amicable” deal if that were to be finalised by the end of 2020. Within such a deadline, there are only two possibilities: a “minimal” deal, i.e either insubstantial or containing major concessions from the UK, or no deal. The British PM, however, has won the election mainly in order to put an end to the uncertainty as soon as possible, and has reiterated that pledge just after the election: it means that agreeing to an extension of the negotiation period would be seen as a denegation.

The choice is difficult and the EU will not make it easier. One thing is certain: Brexit has not been “delivered” with the elections and will not be delivered on the new government’s terms. Painful for both parties, the divorce will in all probability mostly hurt the English people -the same people who granted Mr. Johnson the mandate to hurt them on their own behalf.

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