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.
Like the cigarette and alcohol markets, it took a long time to prove that poorly regulated data collection can do us harm. And as with passive smoking, we now know that data trading can harm those around us as well as ourselves.
Regulators in the European Union are cracking down on the problem with the introduction the new strict General Data Protection Regulation (GDPR) from May 25. The hope is that the new rules will shift the balance of power in the market for data away from companies and back to the owners of that data.
The GDPR applies to companies who trade in the EU or process the data of people in the EU. This includes some of Australia’s biggest companies, such as the Commonwealth Bank and Bunnings Warehouse. Since companies that don’t operate in the EU or process the data of people in the EU aren’t required to comply, Australian consumers could soon be facing a two-tier system of privacy protections.
That isn’t all bad news. By choosing to deal with companies with better data protection policies, Australian consumers can create pressure for change in how personal data is handled across the board.
How the GDPR empowers consumers
The GDPR makes it clearer what companies should be doing to protect personal data and empowers consumers like never before.
When dealing with companies operating in the EU, you will now have the right to:
access your own data and any derived or inferred data
rectify errors and challenge decisions based on it, including to object to direct marketing
be forgotten and erased in most situations
move your data more easily, such as when changing insurance companies or banks
object to certain types of data processing and challenge significant decisions based purely on profiling, such as for medical insurance or loans
This final right will lead to another profound improvement in regulation of the market for personal data.
Consumers as a regulating force
As a result of these new rights and powers, consumers themselves can help regulate company behaviour by monitoring how well they comply with GDPR.
In addition to complaining to authorities, such as the Information Commissioner, when consumers encounter breaches they can complain directly to the company, share stories online and alert fellow users.
This can be powerful – especially when whistleblowers actually work in the industry, as was the case with Cambridge Analytica’s Christopher Wylie.
Companies that don’t protect people’s personal data will face fines from the regulator of up to 4% of global turnover, or €20 million. In addition, they could be required to pay compensation directly to consumers who have asked investigating authorities to claim on their behalf.
This potentially means that all those millions of EU citizens who were caught up in the Facebook Cambridge Analytica scandal could, in the future, be able to sue Facebook.
From the viewpoint of empowering and motivating consumers to monitor what companies do with their data, this is a momentous change.
A shift in our expectations of data privacy
The way things currently stand, there is an imbalance in the personal data market. Companies take all the profit from our personal data, yet we pay the price as individuals, or as a society, for privacy breaches.
But as a result of GDPR, we are likely to see expectations of how companies should act begin to shift. This will create pressure for change.
You’ve probably already been sent notifications from companies asking you to re-consent to their privacy policies. This is because GDPR expects consent to be more explicit and active – default settings and pre-checked boxes are considered inadequate.
Consumers should also expect companies to make it just as easy to withdraw consent as it is to give it.
Unlike New Zealand, which has strong privacy laws, personal data protections in Australia – and the massive data markets of BRIC countries – are not considered “adequate”, and fall below EU standards.
Consumers should be wary of vested interest arguments, such as Facebook’s claim that it just wants to connect people. To use an analogy, that’s comparable to an alcohol manufacturer saying it just wants people to have a good time, without highlighting the potential risks of alcohol use.
If you want these greater rights and protections, now is the perfect time to lobby your Members of Parliament and demand the best available protection from all the companies you deal with.
After a tumultuous 2017 election and six months of political uncertainty, Germany finally has a government. The so-called “grand coalition” made up of the centre-right Christian Democrats (CDU), its right-wing sister party, the Christian Social Union (CSU), and the centre-left Social Democrats (SPD), will govern Germany for the next four years.
The agreement explains “a new direction for Europe, a new dynamic for Germany, a new cohesion for our country”. It notes two changes in German leadership: a change in the power dynamics among the ruling parties, and a strong emphasis on using the European Union (EU) to achieve German political objectives.
With a weakened CDU under Chancellor Angela Merkel ceding considerable control to the anti-immigration CSU and the socialist SPD, the centre of German political power has shifted. This shift will have a profound impact on German and EU refugee policies.
The issue of refugees is discussed deeply in German society. Since the height of the refugee crisis in 2016, when 722,370 people applied for asylum in Germany, the number of asylum applicants has decreased significantly.
At first, Merkel gained praise for her humanitarian, liberal refugee policy focused on refugee reception and integration. However, growing anti-immigrant sentiment, evident in the rise of groups like Patriotic Europeans Against the Islamisation of the West (PEGIDA), the electoral success of the far-right Alternative for Germany (AfD) and the difficulties in integrating a large number of refugees all resulted in increasingly protectionist sentiment.
Merkel had pushed for refugee responsibility-sharing across the EU. However, no pan-EU approach drawing on the German example eventuated. Many EU member states refused to honour the major instrument for delegating responsibility for refugees, the Dublin Regulation, or participate in the EU-wide refugee redistribution scheme.
Given Merkel’s weakened position in the coalition, it is not clear that Germany will continue her humanitarian approach.
The government faces two leadership challenges in refugee policy. Firstly, it needs to provide Germany with a feasible refugee policy that is manageable and does not split the coalition. Secondly, it is attempting to lead a different type of coalition – namely, the EU’s 28 member states.
Leadership in Germany: Can Merkel still say ‘wir schaffen das’?
In domestic refugee policy, Germany is fractured. Of the three coalition partners, the anti-immigration CSU is the primary winner in migration and refugee policy. CSU leader and Interior Minister Horst Seehofer is leading dramatic restrictions in refugee policy. Although the SPD negotiated a modest victory with 1,000 family reunification visas per month for refugees, government parties are refusing to do more than this.
Creating a cap on refugee visas was a major point of controversy between the CDU and CSU. The CSU prevailed, with the coalition agreement calling for an annual cap of 180,000-220,000 refugees. However, that cap may not take effect as only 198,317 first-time asylum applications were filed in Germany in 2017. Yet this threshold creates distraction from Merkel’s humanitarian approach as it prioritises immigration control over humanitarian obligation.
This, coupled with the limitations on movement of refugees imposed by centralised processing centres and repatriation centres for failed asylum seekers, demonstrates new constraints in refugee policy. This in turn demonstrates the CDU’s diminishing power and the fracturing of the centre of policy leadership.
Yet there is some good news for refugee integration. The grand coalition still maintains a focus on refugee integration, especially through language acquisition and participation in the labour market.
As Germany struggles with its fractured leadership and seeks consolidation and centralisation of refugee processing procedures, the German approach is becoming increasingly binary: if you are not a refugee, you must leave; if you are a refugee, you must integrate.
Leadership in Europe?
When it comes to the EU, the grand coalition government has four objectives: halt secondary movement of refugees; toughen the EU’s external borders; tackle external push factors; and create a robust mechanism for responsibility-sharing.
The Common European Asylum System aims for common application procedures for refugees and accommodation standards to prevent asylum-shopping across countries. The German government is also renewing calls for a quota-based refugee redistribution and resettlement scheme among EU states.
In calling for increased policing of the EU’s external borders and a common approach to push factors, these mechanisms paint refugee protection as a security issue rather than a humanitarian one.
During the Eurozone crisis, Germany showed strong leadership in EU policy. However, it has failed to persuade other member states to follow its leadership on refugees. Its leadership may further weaken as other states refuse to follow.
Will Germany step up to lead in Europe?
The EU is deeply divided on refugee policy and distracted by other concerns. The United Kingdom is consumed by Brexit negotiations, while many eastern and central European states refuse to participate in EU-level refugee resettlement schemes.
The anti-refugee populist parties have increased influence across Europe. Merkel has few natural allies, if any, in the grand coalition or within the EU on this issue.
Yet Germany regards leadership of the EU as the key to achieving its interests. Merkel is emphatic that “Germany will only do well if Europe is doing well”.
However, Germany is falling in line with more restrictive policies, rather than leading the EU towards a more comprehensive and humanitarian solution to the refugee crisis.
If Germany leads EU policy change, we may well see increased blocking of access to the EU for refugees and policies that emphasise control and expediency over humanitarian values.
Kelly Soderstrom, PhD Candidate in International Relations, University of Melbourne and Philomena Murray, Professor, School of Social and Political Sciences and EU Centre on Shared Complex Challenges, University of Melbourne
Katy Hayward, Queen’s University Belfast; Alan Wager, King’s College London; Brendan Ciarán Browne, Trinity College Dublin; David Phinnemore, Queen’s University Belfast; Feargal Cochrane, University of Kent; Gavin Barrett, University College Dublin; Patricia Hogwood, University of Westminster, and Stijn Smismans, Cardiff University
EU negotiators announced on December 8 that enough progress has been achieved in Brexit negotiations for talks to move on to a second phase – the nature of the future relationship between the UK and the EU. A deal on the Irish border, a major sticking point in the talks, was given the go-ahead by both the EU and UK. Here academic experts explain aspects of the agreement.
The Irish border
Katy Hayward, Reader in Sociology, Queen’s University Belfast
The UK government still seeks a future deal with the EU that brings the benefits of single market and customs union membership without the obligations. This goal set alarm bells ringing in Brussels and Dublin long ago. Its sheer impossibility meant hurtling towards either a “no deal” scenario (in which case the Irish border would become a hard border) or an “ignore the problem” scenario, in which case the border would be a dangerously gaping hole in the top left corner of the single market.
The joint agreement between the UK and EU secures against both these risks. It asserts that the UK seeks to realise its aims of avoiding a hard border between Ireland and Northern Ireland “through the overall EU-UK relationship”. But it then allows that “should this not be possible”, it will propose “specific solutions” to tie up the loose ends.
In the event that there is a failure to find such agreed solutions, the UK will “maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”
This is such a major concession, of the tail-wags-dog type, that efforts will be concentrated on finding those “agreed solutions” for Northern Ireland – which we can safely assume will be necessary. The Irish question is far from resolved and there are laborious and detailed negotiations to come.
As such, the joint agreement wisely allows for a special strand of the phase two discussions between the EU and the UK to be dedicated to the “detailed arrangements” necessary to give effect to the ambitious commitments to Northern Ireland/Ireland contained here.
Feargal Cochrane, Professor of International Conflict Analysis, School of Politics and International Relations, University of Kent
So there we have it – more constructive ambiguity, which is fitting in terms of the Good Friday Agreement and broader peace process. This agreement can, and is, being read differently by the Irish government and the DUP, which is hardly surprising.
However, the Irish government position is unequivocal and the deal is essentially much the same as the one rejected by the DUP just days previously, certainly in terms of the implications for trade harmonisation in the two parts of Ireland.
The Irish government is clearly convinced that this means there will, in practice, be no need for border checks between the two jurisdictions after the UK leaves the EU.
The DUP, for its part, is reassured that Northern Ireland will be constitutionally aligned with the rest of the UK after Brexit and there will be no air-lock at Great Britain that differentiates Northern Ireland from the rest of the UK. However, the DUP has, at the same time, admitted that the details of how full alignment will work in practice while maintaining NI’s alignment with the rest of the UK require more detailed explanation.
The implication of the wording is that the UK will have to harmonise with Ireland (which, by the way, means the EU). So it’s not entirely clear how the UK is leaving the customs union and single market, other than saying it has left but in practical terms not actually leaving. This might put the wind up some of prime minister Theresa May’s colleagues, who thought Brexit was going to give them their country back.
It seems like the Irish government has received the guarantee it needed that there will be no visible border in Ireland after Brexit. The UK government and DUP have also bought some time to unscramble how to do this in the next phase of the process.
In essence, while the DUP may choose to dress it up in red, white and blue, it looks like Northern Ireland will be clad in blue and gold for the foreseeable future following this agreement.
Brendan Ciarán Browne, Assistant Professor & Course Coordinator MPhil Conflict Resolution, Trinity College Dublin
Beyond practical realities, symbolically the deal is important. In explicitly dismissing the notion of a hard border on the island of Ireland the negotiating teams have been sensitive to what this could lead to in terms of further political instability in Northern Ireland and the potential for a return to violence.
The hard fought strand in the 1998 Good Friday Agreement focusing on self-determination, that affords citizens born in the north the right to determine as Irish, has undoubtedly been safeguarded as a result of the deal. This allows those in the north who identity as Irish to also remain as European citizens.
By placing the Irish question at the heart of this phase of the negotiations, the EU negotiators realised the symbolic importance of the right to self-determination for citizens in the north. They have also further demonstrated their commitment to upholding the values that are enshrined in the Good Friday Agreement.
David Phinnemore, Professor of European Politics, Queen’s University Belfast
The Irish dimension of Brexit has at last gained the profile it deserves in UK political debate. The assumption that you can leave the EU, its customs union and its single market and avoid any hardening of the Irish border has been exposed as folly.
This is made abundantly clear in the text agreed by the UK and the EU. It commits the UK to regulatory alignment with those EU rules regarding the single market and the customs union that support not just north-south cooperation on the island of the Ireland, but also the “all-island economy” and the protection of the 1998 Good Friday Agreement.
How this is to be achieved has still to be worked out. The same goes for the range of regulations where alignment would be required. Ultimately, if the UK and EU don’t reach agreement on all this when striking a trade deal, the UK has committed to maintaining the “full alignment” necessary. Given the EU’s insistence on respecting the integrity of its own legal order and the UK pledge not to impose a border between Northern Ireland and the rest of the UK, that could in effect mean the whole of the UK staying in the single market and a customs union arrangement with the EU.
The autonomous alignment this entails does not sit well with the “take back control” mantra of many Brexiteers, and that’s before its decided who oversees the eventual arrangement. Whether London can and will deliver remains to be seen.
Gavin Barrett, Professor at the Sutherland School of Law, University College Dublin
With this joint agreement, an unfamiliar concept has found its way into the world’s political lexicon: regulatory alignment. It seem innocuous but don’t be fooled. Regulatory alignment will be the terrain on which Brexit’s ultimate shape will be determined.
The British prime minister, Theresa May, effectively needed Ireland’s assent to move to phase two of Brexit negotiations. Ireland wanted protection against any prospect of renewed controls on the Northern Irish frontier. The result was article 49 of the agreement, promising Ireland that the UK will “maintain full alignment” with the customs union and those internal market rules supporting Ireland’s all-island economy, cooperation and the 1998 Good Friday Agreement. But to please the DUP, article 50 of the agreement nonetheless promises Northern Irish businesses “unfettered access” to the UK single market.
For hardline eurosceptics such as Jacob Rees-Mogg, the ability to diverge from EU regulations in pursuit of international trade deals is an “indelible” red line in Brexit talks. Pleasing them, May still insists the UK will leave both the customs union and the single European market.
These three commitments seem impossible to square – unless the UK does one of three things, each of which anger somebody. First, it angers Eurosceptics by recreating the present EU customs union with another similar EU-UK customs arrangement and by mirroring most single European market rules. Second, it angers the DUP by introducing customs controls on Northern Ireland, while keeping Northern Ireland in the UK’s single market, like a little Norway to the EU’s single market. Or, third, it angers Ireland by giving “full alignment” much less significance than Ireland thinks it has.
It is an impossible trilemma. Something has to give. But that is for another day. For now May’s government, and the truly lunatic escapade that is Brexit, hurtle onwards.
Stijn Smismans, Professor of European Law, Director of the Centre for European Law and Governance, Cardiff University
EU citizens in the UK and British citizens in Europe remain in a lot of uncertainty following the deal on the first stage of Brexit negotiations.
There is some progress in the Joint Agreement on the status and rights people will hold once they have obtained what’s called “settled status”, particularly in relation to family reunion and their acquired social security rights. However, this is far from a guarantee protecting their current rights.
Settled status will not be as protective as the current status of permanent residence. Even people who already hold permanent residence could be deported more easily on grounds of criminality, which goes beyond the restrictive criteria on when EU citizens can be deported that the EU currently allows.
The main problem is that the criteria and checks for registration to get “settled status” remain unclear. Neither is it clear which documents people will need to provide as proof. The previous application system for permanent residence for EU citizens led to nearly 30% of applications being rejected. If similar criteria are applied, such as applicants needing to prove being in work or having sufficient resources to live on, the consequences would be dramatic.
The agreement promises a simplified registration system but does not explain how this will be organised. Neither the criteria for application nor the way in which the online system could reach those most vulnerable are explained.
EU citizens have been promised to have their status guaranteed for life – but the proposal that the EU Court of Justice would lose its control powers over this after eight years undermines that principle.
How Europe reacted
Patricia Hogwood, Reader in European Politics, University of Westminster
The first reactions from Europe to the deal were predictably anodyne. Donald Tusk, president of the European Council, gave all the credit for the breakthrough to Theresa May. While this flatters the prime minister, it also serves the main aim of the European institutions and leading member states – to prop up May’s failing government long enough to conclude a viable Brexit deal.
The Dutch prime minister has declared that he is “happy” that the talks can move on. Only a few have dared to prod the gap between the constructive ambiguity of the statement and the problems that will arise in translating it into an acceptable political compromise in practice. Sven Giegold, a German MEP, has branded the deal a “fake compromise” and claimed that regulatory alignment won’t be enough to avoid a hard border.
What happens now?
Alan Wager, Research Associate, The UK in a Changing Europe at King’s College London
This agreement looks like a political fudge that tells us very little, but keeps the show on the road. In fact, it’s the opposite. We now have a much clearer idea of what Brexit will look like. But, as a result, its political shelf life is limited.
Brexit means “full alignment” – putting the UK firmly in the EU’s sphere of influence when it comes to rules on trade. The Brexit choice at this stage can be boiled down to two different paths: one that continued to hug the EU27 close and remain in their trading sphere of influence, and another that returned “British laws” to the UK and facilitated expansive global trade deals. The first path is looking a lot more likely.
The key issue – how to leave the EU’s frameworks, while not hardening the Irish border – remains unresolved. This is because it is an intractable logical problem that cannot be meaningfully resolved. So the UK will, in any meaningful sense, remain subject to these rules and regulations. The question is, once all this comes out in the wash, whether this softer form of Brexit will still be sellable to Theresa May’s party.
Leading Brexit figures such as Boris Johnson and Michael Gove, sensing in the lead up to this crunch point that the Brexit process could have stalled, have rediscovered the joys of collective cabinet responsibility. But, in the new year, this could come to look less like a fudge, and more like one of those leftover stale mince pies: no one wants it, and harder than it looks.
Katy Hayward, Reader in Sociology, Queen’s University Belfast; Alan Wager, Research Associate, The UK in a Changing Europe at King’s College London, King’s College London; Brendan Ciarán Browne, Assistant Professor & Course Coordinator MPhil Conflict Resolution, Trinity College Dublin; David Phinnemore, Professor of European Politics, Queen’s University Belfast; Feargal Cochrane, Professor of International Conflict Analysis, School of Politics and International Relations, University of Kent; Gavin Barrett, Professor at the Sutherland School of Law, University College Dublin; Patricia Hogwood, Reader in European Politics, University of Westminster, and Stijn Smismans, Professor of European Law, Director of the Centre for European Law and Governance, Cardiff University
On Sunday, more than 2 million Catalans voted in a referendum on the question:
Should Catalonia become an independent state?
The vote was a milestone in the century-long struggle for self-determination in Catalonia, a region in northeast Spain. The claim for independence, though, was again met with opposition by the Spanish government, with Spanish police seizing polling stations and beating would-be voters.
Further reading: Catalonians and Kurds have a long battle ahead for true independence
Catalonia’s claim for independence
Catalonian President Carles Puigdemont said on Monday that Catalan “citizens have earned the right to [be] an independent state”. Puigdemont sees the 90% referendum win as a self-evident claim for independence.
Catalonia’s claim to independence is historical. It has always considered itself a distinct entity. While Catalonia has co-existed with Spain for centuries, the 1979 Statute of Autonomy under the 1978 Spanish Constitution permitted Catalonia some autonomy, with self-government of education, health care and welfare.
Catalonia has also maintained a culture and language distinct from its Spanish neighbours. For Catalans, strong national identity has been demonstrated through resistance of repressive expressions of Spanish influence – notably the Franco dictatorship’s attempts to suppress Catalan culture and language.
As one of the strongest and most productive economic regions in Spain, the perception among Catalans is that they give more in tax than they receive in state benefits. In 2015, 20% of Spain’s total GDP came from Catalonia, while the state budget for Catalonia received a 6.5% decrease from 2003.
The current Catalan claim for independence has been energised by the perceived economic and political repression of the region by the central government in recent years. Many Catalans believe Catalonia would be more successful if it could self-rule.
Parallel to inequitable economic treatment, the Spanish government has also moved recently to tightly constrain Catalan autonomy. In 2010, the Spanish Constitutional Court struck down an expanded version of the Statute of Autonomy that granted Catalonia the title of a “nation”.
In March 2017, former Catalan leader Artur Mas was banned from holding public office after being found guilty of disobeying the Constitutional Court by holding a symbolic referendum in 2014. Such aggressive responses by Spain to the idea of secession have driven increasing numbers of Catalonians toward the independence movement.
In the context of Sunday’s referendum, Puigdemont argued that his people’s sovereignty lies with the Catalan parliament, and that no other court or political power could ban or suspend the vote.
The referendum’s legality is certainly contentious, notably because it did not adhere to democratic conventions like the requirement for a minimum threshold of votes. Regardless, Puigdemont is looking to make a declaration of independence in the coming days.
Why does the Spanish government oppose Catalonian independence?
While Catalans claim independence, Madrid refuses to recognise the referendum’s legitimacy at all. According to Spanish President Mariano Rajoy:
There has not been a self-determination referendum in Catalonia.
Rajoy labelled the referendum as a “constitutional and democratic atrocity” and slammed the Catalan leaders for creating “serious damage to co-existence” between Spain and Catalonia.
In line with the 2010 Constitutional Court decision, the Spanish government opposes Catalan independence on the grounds of constitutional invalidity. The 1978 Spanish Constitution denies the independence of Catalonia, declaring the “indissoluble unity of the Spanish nation”.
Madrid argues there is no provision in the Spanish Constitution for self-determination, and that a unilateral vote of independence is at odds with Article 155’s requirement for democratic participation of all Spaniards. On these grounds, the Constitutional Court banned the referendum – which nevertheless proceeded on Sunday.
What happened during the referendum on Sunday?
Sunday’s referendum was marred by violence and repression. Spanish national police forcibly blocked voting, seizing ballot boxes and voting papers, physically removing voters from polling stations, and attacking civilians with batons and rubber bullets.
Catalan emergency officials say that 761 Catalan civilians and 12 police were injured during the police actions in Barcelona and Girona.
Catalan and Spanish leaders blame each other for the violence. Rajoy condemned the Catalans for their “radicalism and disobedience”, praising the Spanish police for their “firmness and serenity” in response.
This response sits uncomfortably with images of voters being removed from polling stations by their hair and attacked with batons while raising their hands in peaceful protest.
The UN has criticised Madrid for its disproportionate and violent response to a peaceful attempt at self-determination. Human Rights Watch has condemned the Spanish government for violating Catalans’ civil right to peaceful assembly and free expression.
In contrast, the European Union regards the vote as illegal but has called for unity and peaceful relations between Spain and Catalonia.
As Catalans call for a national strike in response to Madrid’s repressive actions, the world waits to see whether this act of protest will be met with greater repression. Madrid could use emergency powers to take full administrative control of Catalonia.
Catalonia and the struggle for self-determination
On Monday, Puigdemont said the Catalan people:
… have sent a message to the world, we have the right to decide our future, we have the right to be free and we want to live in peace.
Catalonia is effectively asserting the right of its people to self-determination. This is a collective human right, enshrined in common Article 1(1) of the twin human rights covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
In voting at a referendum and preparing for a declaration of independence, Catalonia is following a similar contested path to the emerging state of Kosovo. In 2010, the International Court of Justice found that Kosovo’s declaration of independence did not violate international law.
Spain is the only major country in Western Europe to refuse recognition to Kosovo as an independent country. Spain’s insistence that unilateral secession cannot be permitted for Kosovo is intertwined with its determination not to lose Catalonia.
Self-determination can be realised in a range of ways, including through forms of autonomy within a nation-state. It may be that a negotiated arrangement that would preserve Spain’s sovereignty over Catalonia would still be possible.
However, by meeting Sunday’s assertion of self-determination with repression, Spain has undoubtedly fuelled Catalonia’s determination to establish an independent state.
Other EU member nations, including the UK, will be watching with concern that Catalonia may inspire separatist movements in Scotland, Bavaria and Flanders.