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16 November 2018

The Federal Trust: Brexit: The Beginning of the End?

Director Brendan Donnelly argues that the Prime Minister’s proposed Withdrawal Agreement and Political Declaration need to be read together. When they are read together they demonstrate the weakness and incoherence of Mrs May’s negotiating position and make a People’s Vote more likely.

In the documents released this week by the British government and the EU there is a striking contrast between the detailed and specific nature of the proposed Withdrawal Agreement (WA) and the cursory, imprecise nature of the accompanying Political Declaration (PD.) The WA is a binding legal document, creating bankable rights and obligations. The Political Declaration is a purely aspirational text, pointing towards a range of long-term outcomes for the next stage of the Brexit negotiations, and expressing the pious hope that these outcomes will be as benevolent as possible for all concerned.

The contrast between the WA and the PD should not, over two years after the EU referendum, be entirely surprising. Once the Article 50 notification took place in March 2017 the operation of the Treaty set in train a timetable for creating a Withdrawal Agreement in order to regulate issues arising immediately out of the British decision to leave the EU. No such timetable exists for the conclusion of an agreement between the UK and the EU on the future long-term relationship. Given the chaotic incapacity of the British side to set itself realistic negotiating goals for this relationship it is no surprise that the proposed PD is so vague and noncommittally aspirational. The pressure of the Article 50 timetable on the other hand has produced a solid and coherent text in the shape of the WA.

When the House of Commons votes on the outcome of the Brexit negotiations, its primary vote will be on the WA, and not on the largely rhetorical PD. There are, however, important political and legal linkages between the two documents, despite differences in style and scope. Two linkages are particularly important in this context: those relating to the transition period and to Northern Ireland. These two issues figure importantly in the WA but can only be properly understood when read in conjunction with the PD. In both cases the linkages operate greatly to the disadvantage of the current British government and vividly illustrate the weakness of its position in the Brexit negotiations.

A core delusion of the pro-Brexit campaign was the claim that the UK, once it had left the EU, would be able rapidly to negotiate with the Union a new and favourable trading relationship to replace existing arrangements. This fantasy did not long survive contact with the negotiating realities of Brexit. It rapidly became clear to the British negotiators that renegotiation would be a difficult, arduous process and to all except some of the British negotiators it became clear that the future relationship would be far from the “frictionless trade” sought originally by Mrs. May. Out of this partial recognition was born the acceptance on the British side that it would be necessary for a “transitional” period to be established for the weeks, months or even years after March 2019, when trading relations between the UK and EU would otherwise fall into a legal limbo. A “transitional” period was also attractive to the EU, eager to minimise the economic disruption Brexit would inevitably cause and happy to continue British payments into the EU’s budget until the end of 2020, when the present EU “Multiannual Financial Framework (MFF)” comes to an end. [...]

Full article on The Federal Trust

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