Against seemingly all the odds, we have a new Brexit deal. As an apparent vindication of UK prime minister Boris Johnson’s strategy to ramp up the threat of a no-deal departure from the EU and to force concessions from Brussels, one would imagine that Number 10 is rather happy right now. But that happiness will be tempered with caution, because some major issues lie ahead.
Negotiations in Brussels have produced legal texts on arrangements for Northern Ireland and on the political declaration, which outlines the broad outline of what the two sides want from their future relationship. These are the product of months of planning by the British government, so it’s reasonable to ask what has actually changed since former prime minister Theresa May struck her original deal.
Reading the text, the first impression is that there’s much more that hasn’t changed than has.
The protocol on Northern Ireland and Ireland has long been in the firing line. It proposes a backstop arrangement that would keep Northern Ireland in close alignment with the EU unless and until both UK and EU agreed to change that.
On that front, the introduction of a section on “democratic consent” is an important shift on the EU side. This provides a mechanism for the Northern Ireland Assembly to vote on whether to maintain the provisions of the protocol, with a requirement to have cross-community support. That means the UK is now no longer subject to the EU’s approval if it wants to end the backstop arrangement.
That said, a voting requirement to have majorities from both unionist and nationalist groupings makes it very hard to achieve – especially since the Northern Ireland Executive broke down several years ago and is still not in operation. While the Democratic Unionist Party (DUP) might control unionist voting, it can only do the same with nationalists if it creates a much more benign and cooperative environment. And even if that does happen and arrangements are voted down by Stormont, there is still a long phasing-out period, so things cannot move too quickly.
From the EU’s perspective, this arrangement provides a degree of security, mainly because any decision to overturn the system is not solely in the hands of the UK – which has not been the most reliable partner of late.
The other big change is on customs arrangements. Instead of creating a temporary customs area for the whole of the UK, the revised Protocol makes Northern Ireland a part of the UK’s customs territory. Because that would imply border controls, a rather convoluted system of custom duty collection is set out.
In essence, the system collects duties from businesses, dependent upon where goods are coming from and going to, with the possibility of various exemptions that will be agreed down the line.
It’s a much more complex system than before, but it does allow Johnson to argue that the entire UK is leaving the EU’s customs union, allowing it to benefit from any new trade deals that might be concluded.
Meanwhile, the political declaration, the main change is that the UK now suggests it is looking for a much looser future relationship, based on a free trade agreement, rather than anything that might include participation in the EU’s single market or customs union.
Less is more?
While these are all noteworthy, they do represent only a very small part of the totality of the withdrawal agreement, as agreed by May last November. The Protocol still kicks into effect at the end of a transition period and the effect is still that Northern Ireland is kept very close to EU’s regulatory standards for many years. The future relationship remains as aspirational as May’s plans – until such a document is negotiated and ratified, by some future British government, no one can be sure what it will look like.
Nor did this negotiation touch on citizens’ rights, financial liabilities, the power of the EU’s courts to issue definitive rulings on matters of dispute (an important matter for hard Brexit supporters in the Conservative Party) or the institutional arrangements for managing all of this. Even as Number 10 goes into its selling mode, those continuities from last year’s text will be present in many people’s minds.
The plan still seems to be for the government to present this deal to the UK parliament in a special Saturday sitting on October 19. We already know that the DUP has issues with the revised text because it places Northern Ireland in a different legal position to the rest of the UK, so winning that vote looks even harder than it already did. The government will hope that it can present the deal to MPs as the last, best hope for a Brexit settlement – but, with wobbles from the DUP, Johnson will struggle to get close to a majority.
Even if he does, the potential to keep that majority together for the subsequent passage of the Withdrawal Agreement Bill looks even less likely. And remember that, as things stand today, this text isn’t even signed off by the 27 EU member states – there’s now not really enough time for them to digest and approve something that moves them off their previous position.
In short, this might still fall apart for Johnson, just as it did for May.
There is a song by the Melbourne band Little Heroes, called One Perfect Day, from back in 1982 (though it still attracts a cult following). In it, the lead singer asks his ex-girlfriend in England: tell me, is it still raining there in England, and did the government fall last night?
Well, it is still raining. And there is still talk of the government of Theresa May falling. We just observed a week of three parliamentary votes on Brexit, where the government was defeated in two of them.
In another extraordinary day yesterday, the Speaker of the House of Commons, John Bercow, invoked the “Erskine May” parliamentary rules of procedure. That means that an amendment “which is the same, in substance” as an issue that has already been voted on cannot be proposed again in parliament. The speaker said that a new proposal must be “not different in terms of wording, but different in terms of substance”. Unless there are significant changes to the substance of the government’s proposed Withdrawal Agreement, it cannot be sent back to the House for a third “meaningful” vote.
So, what might happen now, with nine days to go until the UK is supposed to leave the EU?
The UK could still leave without an agreement
If there is no parliamentary support for the Withdrawal Agreement, that does not mean the UK does not leave. The UK will leave on 29 March unless the UK government requests an extension to Article 50, which was activated by Theresa May two years ago on 29 March 2017. The Article says, among other things:
The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
If the UK leaves in a little over a week, it will no longer be in the EU and will no longer be party to hundreds of international treaties and thousands of pieces of legislation.
Proroguing the parliament is an option
What are the options in order to avoid crashing out this way? Could the British government somehow get the Withdrawal Agreement through parliament on a third attempt?
One step that Theresa May might be contemplating is taking the extraordinary measure of “proroguing” the parliament. Proroguing effectively means terminating the current session, without actually dissolving it, and having parliament reconvene in a new session. The government would then have the option – if the temporary suspension of the parliament goes smoothly – to re-send the Withdrawal Agreement for a meaningful vote to a newly-convened parliament.
This may not occur in time for the looming exit deadline, and May is unlikely to attempt to present the deal for a third time, unless the Speaker changes his position. So, May could be obliged to yet again set out for Brussels and some EU national capitals to shore up support for an extension of Article 50.
Now, a request to extend Article 50
The EU has just received a formal request for an extension of Article 50. The House of Commons voted last week for such an extension and May indicated she would request one.
Perhaps giving a sense of the frustration in some EU capitals about the negotiations, Loiseau revealed she has called her cat Brexit because it is indecisive, as it “meows loudly to be let out each morning, but then refuses to go outside when she opens the door”.
The EU would no doubt request that an extension be fully justified – and there is little European appetite to reopen negotiations with Britain. The EU has been preparing for Brexit for some time.
It is conceivable that the UK could need to justify a further request that Article 50 be extended well beyond the 30 June 2019 date that Theresa May has requested in her letter to European Council President Donald Tusk. But there are major problems with this, as the UK would need to take part in the European Parliament elections to take place in May this year. It could also be obliged to contribute to the new EU budget round, known as the Multiannual Financial Framework.
The Brexit saga continues
Of course, the idea of voting more than once on a Brexit deal in Parliament raises again the call for a second referendum on EU membership by the people – a people’s vote.
Alternatively, the UK could remain in the EU and revoke Article 50. A recent EU court ruling that this does not require the consent of the other 27 EU states has emboldened those who are campaigning for a new referendum – although it is far from clear what questions would appear on the ballot paper.
The possibility of Theresa May resigning is never far from the minds of her detractors – whether the European Research Group in her own party, or the Labour party leadership under Jeremy Corbyn.
Meanwhile, the UK Trade Secretary Liam Fox has announced a trade deal that has just been initialled with Iceland and Norway. He stated that this was in addition to the agreement signed with Liechtenstein. At least Norway and Iceland are larger than Liechtenstein, a country of fewer than 38,000 people – famous for being the world’s largest exporter of false teeth.
These new trading partners are considerably smaller than the EU Single Market of over 500 million that the UK currently belongs to. They will certainly not fill the huge void left by Brexit.
Yet again, Theresa May’s government is no doubt hoping for just One Perfect Day, but it is not looking likely at the moment.
Imagine an internet where you couldn’t access any content unless it complied with every law of all the countries in the world.
In this scenario, you would be prevented from expressing views that were critical of many of the world’s dictatorships. You would not be able to question aspects of some religions due to blasphemy laws. And some of the photos you post of your children would be illegal.
A development like this is not as far fetched as it currently may seem.
Every country wants its laws respected online. The scenario above may be an unavoidable outcome if countries are successful in seeking to impose their laws globally. Even though they can’t prosecute the person who posted the content, they can try to force the internet platforms that host the content to remove or block it.
A legal opinion released last week in a case currently before the courts in the European Union argues content should generally only be blocked in countries where it breaches the law, not globally. This is a sensible approach, and a necessity if we wish to continue to enjoy the benefits currently offered by the internet.
A trend of global orders
There have been numerous examples of courts seeking to impose their content restrictions globally by ordering the major internet platforms to remove or block access to specific content.
The most recent high profile case is a 2017 decision by the Supreme Court of Canada, in which the court sought to compel Google to block certain search results globally. That dispute is still ongoing after a US court sided with Google.
Courts in Australia and the United States have also opted for global content restrictions, without regard for the impact on internet users in other countries. For example, in the Australian case, Justice Pembroke ordered Twitter to block all future postings globally – regardless of topic – by a particular Twitter user.
This is troubling. After all, what is illegal in one country may be perfectly legal in all other countries. Why should the harshest laws determine what can be posted online? Why should duties imposed by one country trump rights afforded to us by the laws in many other countries – particularly international human rights laws?
The Google France case
The latest case to address this question is an ongoing dispute in the EU. The French data protection authority (CNIL) sought to force search engines to remove search results (known as de-referencing) globally where those results violate the EU’s so-called “right to be forgotten” legislation.
The right to be forgotten is an aspect of the EU’s data privacy law that, in simplified terms, gives people the right to have online content blocked on search engines, where the content is no longer relevant.
Google disputed this and the matter has reached the EU’s highest court – the Court of Justice of the European Union (CJEU). On 10 January 2019, an Advocate General of the court issued his opinion on the matter (so far only available in French). Such opinions are not binding on the court, but the judgment often follows the reasoning of the Advocate General. The judges are now beginning their deliberations in this case and their judgment will be given at a later date.
In his opinion, the Advocate General concluded that, in relation to the right to be forgotten, search engines:
…must take every measure available to it to ensure full and effective de-referencing within the EU.
He went on to say that de-referencing of the search results should only apply inside the EU.
But he didn’t rule out the possibility that:
…in certain situations, a search engine operator may be required to take de-referencing actions at the worldwide level.
If the EU court adopts the approach of the Canadian Supreme Court and seeks to impose EU law globally, many other countries – including repressive dictatorships – are likely to view this as a “green light” to impose their laws globally.
But if the EU court adopts the more measured approach proposed in the Advocate General’s opinion, we may see a reversal of the current dangerous trend of global content restriction orders.
It may be months until we see the final judgment. But the stakes are high and the future of the internet, as we know it, hangs in the balance.
On June 23, 2016 the United Kingdom held a referendum to decide whether it should leave or remain in the European Union. More than 30 million people took part in the vote with 51.9% choosing to leave and 48.1% to remain.
Six months later, the new Prime Minister Theresa May delivered a speech in which she said:
the British people voted for change… And it is the job of this government to deliver it.
Where it got messy is deciding how to leave the Union. Would it be a clean break, the so-called hard Brexit, or a softer version where some links to the EU remained?
But first, a bit about the EU
The European Union is an economic and political partnership of 28 European countries across the whole continent, including France, Germany, Italy, Sweden, Finland, the UK and Ireland. It operates under a “single market” which means goods, services, capitals and people can move around as if the member states were one country.
Nineteen of the member countries, not including the UK, share a common currency, the Euro. The EU also has its own parliament which sets rules in areas including the environment, transport and consumer rights.
May’s hard Brexit strategy
Theresa May’s vision for leaving the European Union came in a Brexit White Paper, which she delivered to Parliament on February 2, 2017. The paper explained that, in negotiating the exit with the EU, the UK would:
- not be seeking membership of the EU’s single market
- pursue a new strategic partnership with the EU
- pursue a new customs arrangement with the EU to secure new trade agreements with other countries bilaterally and in wider groupings.
In substance, this white paper is a clear indication for the hard Brexit option. A soft Brexit would be where the UK would somehow remain in the European single market, or at the very least become an external member of the EU Customs Union. This is the case for Turkey and some micro-nations including Monaco, Andorra and San Marino.
A customs union is an arrangement between two or more countries which allows goods to circulate freely in the area of the union. This is done by removing tariffs between the countries inside the union and introducing a common external tariff for the countries outside the union.
A customs union does not cover trade in services and flows of capital and people. But the treaties that have established the EU enshrine the single market (of which the customs union is a component) in four inextricable pillars: the free movement of goods, services, capital and labour. For the EU this is an all-or-nothing package, so that single market members cannot pick and choose only some of the four freedoms.
Hard or soft, deal or no deal?
The issue of a hard or soft Brexit is different from that of the deal, or no-deal, Brexit. The first issue has already been set: it’s a hard Brexit, as Theresa May is not seeking membership of both the EU single market and Customs Union.
This allows the UK to independently negotiate international trade agreements either with individual countries or other customs unions after the UK’s official withdrawal date: March, 29 2019. After this date, the UK and EU may or may not strike a deal on what happens next.
So, the post-withdrawal arrangements with the EU comprise the deal or no-deal issue currently at stake: will the UK crash out of the EU with or without shared plans, and with or without a gradual implementation period?
The Brexit deal
Both the UK government and the EU governing bodies clearly prefer to split with a deal and a more gradual separation process. To this aim, the two sides have spent nearly two years in the painstaking negotiation of a withdrawal agreement.
This is the now infamous “Brexit deal” – a 585-page legally-binding text agreed to by the EU and UK government on November, 14 2018. The deal sets the terms of the UK’s divorce from the EU and can only enter into force once ratified by the UK parliament.
But, on January 15, 2019 Britain’s House of Commons rejected the Brexit deal by a stunning and unprecedented majority of 230. More than one third of Theresa May’s majority MPs joined the opposition parties against the Brexit deal despite confirming their confidence on the government the following day.
So what’s the problem with the deal?
Like in an actual divorce, the rejected agreement sets the terms for splitting the assets, liabilities and people shared across the two sides. Leaving aside the numerous legal resolutions especially affecting commerce, the deal in particular defines how much money the UK owes the EU and the terms under which the estimated £39bn will be paid.
The deal also preserves the existing residency and working rights of UK citizens living elsewhere in the EU and of the EU citizens living in the UK up until the end of the Brexit implementation period set for 31 December 2020.
But the thorniest issue of the Brexit deal, and the one that proved to be its major fault line, is the proposed method of avoiding the return of a physical border between the UK’s Northern Ireland and the Republic of Ireland – an EU member state.
The Northern Ireland backstop
The island of Ireland is divided into two separate entities: the Republic of Ireland, which is an independent nation member of the EU, and Northern Ireland, which is part of the UK and has 18 seats in the UK parliament.
The Northern Ireland backstop is a convoluted measure of last resort to maintain an open border between Northern Ireland and the Republic of Ireland until the UK and the EU can find a long-term solution for an indefinite period – even after the expiration of the Brexit implementation period (December, 31 2020).
The fact is – with or without the Brexit deal – the Brexit White Paper’s outline to stay outside the EU Single Market and Customs Union means that, eventually, a physical border will reappear on the island of Ireland.
This is an ominous prospect as memories of the “Troubles”, the bloody Northern Ireland conflict triggered by border clashes in the late 1960s – between the majority unionist or UK loyalist Protestant population and the minority Catholic or Irish nationalist one – are still fresh.
Over the years the UK and Ireland’s EU membership eliminated any hard borders in Ireland. This played a major part in spelling the end of the Troubles in the 1998 Good Friday Agreement, which is also based on keeping the whole of Ireland border-free.
A hard Brexit repudiates one of the cornerstones of the Good Friday Agreements and, short of a customs union with the EU, any deal would only kick the can down the road. Theresa May’s proposed solution is the Irish border Brexit backstop.
It’s called a backstop precisely because it pushes the UK border with the EU back away from Northern Ireland. This would mean Northern Ireland would all but remain subject to the EU legal framework and be kept virtually separate from the rest of the UK for an indefinite time.
And this is why the conservative Brexit hardliners, and the small but indispensable Northern Irish Democratic Union Party (DUP), voted against Theresa May’s deal. Despite the fact a majority of Northern Irish voted to remain in the EU in the 2016 referendum, the DUP fears the backstop would provide momentum to those who wish to reunify Ireland.
On the other hand, despite Theresa May’s insistence, the EU is not providing any legally binding guarantee of a definite expiry date for the Irish backstop. The EU’s strategic game is clear, as the continuing existence of the Irish backstop provides yet another strong negotiating chip in respect to any future dealings with the UK.
So what are the alternatives to Theresa May’s hard Brexit deal? Wild guesses include delaying or withdrawing the withdrawal, so to speak, while some even call for a second Brexit referendum. Considering the political uncertainties and legal realities, any guess is little more than wishful thinking.
US President Donald Trump’s eyebrow-raising visit to Europe has confirmed Europeans’ worst fears: if another “Crimea-like” take-over by Russia occurs somewhere on the continent, they will likely be on their own.
Trump had made it abundantly clear that European leaders can no longer rely on the US for its protection. He was not only harshly criticised by his own party for being too conciliatory with Russian President Vladimir Putin during their Helsinki summit, he also lashed out at US allies once more, going so far as to call the European Union a “foe”.
The US may have more than 60,000 troops stationed in Europe, but a recent report stating the Pentagon is assessing the impact of a possible reduction of troop numbers, coupled with Trump’s unpredictability, has made America’s traditional allies nervous.
Indeed, by initiating trade wars and continuously attacking his closest allies, Trump has weakened the entire West.
Another war in Europe remains possible
Despite his reassurances last week that the US still values NATO, Trump’s divisive visit to Europe may embolden Putin in his assessment that occupying more European land may not be met with much military resistance.
Poland is so concerned, it has recently offered to pay the US up to US$2bn to permanently deploy an armoured division on its soil.
The on-going conflict in Ukraine, coupled with Putin’s increased emphasis in recent years on Russia’s “right” and “obligation” to “protect” ethnic Russians and Russian speakers beyond its borders, contribute further to the unease between Moscow in the West. This is particularly being felt in the Baltic states, two of which (Estonia and Latvia) have sizeable Russian minorities.
It certainly doesn’t help when Russia conducts military drills or dispatches warplanes on the borders with the Baltics, giving a real sense that military escalation in this part of Europe is entirely plausible.
Tensions are building in Eastern Europe
The focus of any possible Russian military incursion could be a thin stretch of land between Poland and Lithuania known as the Suwalki Gap (named after the nearby Polish town of Suwałki), which would allow Russia to reinforce its only access to the Baltic Sea through its Kaliningrad exclave and cut the Baltics off from the rest of Europe.
The Suwalki Gap also links Kaliningrad with Belarus, a staunch Russian ally. Moscow regularly organises joint strategic military exercises with Minsk, the most recent being the Zapad (meaning “West” in Russian) war games last September.
Reflecting their concerns about a possible invasion, NATO members held military exercises last June that focused for the first time on defending this 104km strip of land from a possible Russian attack. Then, last month, NATO held the Trojan Footprint 18 joint military exercise in Poland and the Baltics, which was one of its biggest-ever war games in the region.
These military build-ups on NATO’s eastern flank are reminiscent of the Cold War and feed both Russia’s “deep-seated sense of vulnerability vis-à-vis the West” and Europe’s own feelings of insecurity.
Going it alone
But should Russia decide to invade the Suwalki Gap, would Europe go to war over it?
It may not be able to. European military options remain limited as NATO does not have the military means to go to war against Russia without the US. Acutely aware of this, European leaders launched a new regional defence fund last year to develop the continent’s military capabilities outside of NATO.
While a direct Russian invasion of a NATO member would be the worst-case scenario, it’s more likely that Putin would seek to further destabilise the bloc’s eastern flank through a hybrid war involving cyber-attacks, divisive propaganda campaigns and the use of armed proxies like the “little green men” that appeared during the Ukraine conflict.
Even here, though, it’s clear that Europe cannot provide a unified front to counter potential Russian actions. Some countries like Hungary and Italy seek a closer relationship with Russia, while others like the UK are already embroiled in diplomatic conflicts with it.
France and Germany have already announced plans to increase defence spending not because of commitments made to Trump during the latest NATO summit, but out of real concerns that another confrontation with Russia is becoming a real threat.
Trump has weakened the Western alliance at a time when Europe is not ready to step up and ensure its own security. He may have united Europeans around shared fears and their collective response, but he’s also made them more vulnerable.