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The Deal -v- No Deal -v- No Brexit

This article may partially self-destruct soon, when it is likely that Parliament will decisively vote down Theresa May’s Brexit deal, known as ‘the withdrawal agreement.’ But then what?

Currently, according to Prime Minister, Theresa May, and EU Council President, Donald Tusk, the choice is the deal, no deal, or no Brexit. But who will end up making that choice?

Currently, not us, ‘the people’.

Theresa May has fundamentally ruled out any chance of a ‘people’s vote’ on Brexit, and realistically, a ‘people’s vote’ could only happen with the support of the government.

Yes, there could be a private member’s bill for another referendum, but the chances of that being successful without the government’s backing are very remote.

So, there would have to be a fundamental shift by the government, or a new government, for the idea of a ‘people’s vote’ to have a real chance of materialising.

  • Did the electorate truly realise just how complicated Brexit would be when we had the referendum on 23 June 2016?

Clearly not.

Exiting the EU has taxed some of the best legal brains in the UK and the rest of the EU, and even many of them are now scratching their heads.

Brexit is not simple, but the referendum question was ridiculously simplistic – and the choice of just one of two one-word answers in response totally unrealistic.

The country clearly didn’t have enough information to make any realistic choice or decision in the referendum.

And even now, the details of Brexit are so arduous and perplexing that many people are struggling to understand what any of it means.

  • Would the electorate have voted for Brexit if they had known on 23 June 2016 what we know now?

The evidence indicates definitely not.

Professor Adrian Low, who has been analysing all the polls since referendum day, told me:

“The latest polling figures, from YouGov on 3 and 4 December for Great Britain, are very grim reading for Brexiters.

“From a winning position of 52% at the referendum, their support has dropped to less than 44%, whilst those who think it wrong to leave are now at 56%.

“Poll after poll – more than 50 of them – since last year’s general election show that UK no longer wants Brexit

“One poll, or maybe a handful, can be wrong, but not this time. There are too many of them saying the same thing.

“The will of the people is to remain in the EU.”

[∞ Link to Professor Low’s latest analysis].

Given the choice of the deal, no deal or no Brexit, it is becoming increasingly obvious that ‘the people’ by a substantially clear majority want ‘no Brexit’.

Even by the government’s own independent assessments and admission, ‘no deal’ would be catastrophic for the UK, and many believe it would be entirely irresponsible to put such a choice on any ballot paper.

  • So, the realistic choice comes down to ‘the deal’ (the withdrawal agreement) or ‘no Brexit’.

The EU asserts – and the government agrees – that ‘the deal’ is the only deal on the table and there cannot be any other deal offered or negotiated, especially as the government has ruled out remaining in the Single Market after Brexit (i.e. a Norway option, which would mean continuing with ‘free movement of people’).

  • What exactly is ‘the deal’?

As my graphic shows, Theresa May’s deal means that from 30 March 2018 – known as ‘Brexit Day’ – the UK would continue to be ‘in’ the EU, as if we were a member as now, except we would have to obey almost all the rules of the EU, including any new rules, without any say in them.

This arrangement, called the ‘transition period’ would end on 31 December 2020.

  • What happens after the ‘transition period’ has not yet been agreed, apart from the arrangements regarding Northern Ireland.

If by the end of 2020, a satisfactory arrangement has not been mutually agreed between the UK and the EU on how to avoid a hard border on the island of Ireland, then something called a ‘backstop’ would automatically kick in.

Under the backstop the whole of the UK would enter a “single customs territory” with the EU.

There are many parts to this but essentially there would be no tariffs on trade in goods between the UK and the EU and some (though not all) trade restrictions will be removed.

Northern Ireland alone would remain aligned to some extra rules of the EU’s Single Market to ensure the border between Northern Ireland and the Republic of Ireland will remain open as it is today.

  • The government doesn’t want the backstop to happen.

But in the withdrawal agreement, the backstop would go ahead regardless, unless both the EU and the UK agree that alternative arrangements to avoid a hard border on the island of Ireland are acceptable to all sides.

In other words, both sides would have to jointly agree before the backstop could be stopped.

  • Yes, it is complicated.

Fortunately, I have on hand the expertise of EU law expert, Professor Steve Peers of Essex University, who has written a comprehensive overview answering some of the key questions on what ‘the deal’ means, which I am summarising here.

  • Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

No. The withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU.

  • What if the withdrawal agreement is not ratified?

Unless the two sides agree to amend it and then ratify the amended text, in principle the alternatives are the UK leaving the EU without any withdrawal agreement (‘no deal’), or staying in the European Union (‘no Brexit’).

However, it remains to be seen if remaining by revoking the Article 50 notice of withdrawing is legally possible. (This will be clarified by a ruling of the European Court of Justice, expected on Monday).

A general election might be held, but that will not in itself change the options available.

The Brexit date could be delayed, but both the UK government and the EU27 Member States (acting unanimously) would have to agree to this.

– The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. [∞ Link ]

– The UK government has also issued its own no deal notices. [∞ Link]

  • Does the withdrawal agreement end free movement of people?

Yes, free movement ends at the end of the transition period (31 December 2020), unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea.

The ‘backstop’ relating to Northern Ireland, if it ends up applying, does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue.

  • Does the CJEU (European Court of Justice) have jurisdiction in the UK indefinitely?

No. The Court will have jurisdiction during the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus.

After the transition period, UK courts can send the CJEU cases only in limited contexts.

The European Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition.

The Commission can also sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward.

  • Which EU laws does the transition period cover?

The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions.

  • Can the UK be forced to stay in the transition period indefinitely?

No. Any extension of the transition period has to be agreed jointly.

Furthermore, any extension won’t be indefinite, since the negotiators will add a final possible date for extension when they agree the final text of the withdrawal agreement.

On the other hand, the UK might theoretically end up in the backstop relating to Northern Ireland indefinitely.

Although the withdrawal agreement says that this arrangement must be temporary, unlike the transition period, there is no final date to end it and the UK cannot unilaterally end it at a certain date.

• The article here contains just a brief summary of Professor Steve Peers 5,000-word analysis of the withdrawal agreement (for ‘non-lawyers’). To see his full article, with links to his other explanatory blogs about the legal aspects of Brexit go to EU Law Analysis.

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