May's Brexit deal: Real test yet to come  

Muhammad Zamir   | Published: December 02, 2018 20:59:19 | Updated: December 02, 2018 22:06:26

The last week of this November will be remembered in the historical evolution of Europe not only for its geo-strategic and economic implications but also for its social denotations pertaining to citizen's rights.

Two important meetings in London and Brussels saw final discussion and general agreement spelt out on November 25 on two separate documents which had been drafted and agreed to by negotiators from the United Kingdom (UK) and the European Union (EU) in the past two weeks.

 The first one termed as the withdrawal agreement, also known as the "divorce" deal set out the terms of Brexit in the wake of a landmark June 2016 referendum, which saw 52 per cent of voters opting to leave the group that UK had joined in 1973. At 585 pages, its legally binding text deals with a number of issues, including citizens' rights, the so-called "divorce settlement" and a mechanism pertaining to the controversial issue of preventing a hard border between Ireland and Northern Ireland being implemented in the immediate future. It also includes details on the length of Britain's transition period, whereby no major changes will be made to the UK-EU relationship, as the two parties work out a post-Brexit trade deal. That period has currently been set to last from March 2019 until December 2020. This length of the transition might however change subsequently.

The second document related to a political declaration, an aspirational, non-legally binding text that set out the terms of the future relationship between the EU and the UK over 26 pages. It deals with ambitions for a future trading relationship, as well as close ties on foreign policy, criminal justice, law enforcement, security and defence.

It is being hoped by both the EU and UK that the mutually agreed to political declaration will be the basis for a trade agreement, to be hammered out during a 21-month transition period that is due to kick-off after  March 29, 2019 and will last till  December 31, 2020 when the UK will still continue to be a member of the EU single market and customs union. The UK will need to abide by all EU rules, but will lose membership of its institutions - the European Parliament, the European Commission and the European Court of Justice. The draft withdrawal agreement says the transition can be extended, but this can only happen once and for a limited period. Both the UK and EU must agree to any extension and the decision must be taken before  July 01, 2020.

The draft document is particularly important as it stresses that any final deal with the UK must not interfere with the EU's "four freedoms" - the free movement of goods, services, capital and people within the remaining 27 EU nations. Analysts have pointed out the declaration in principle reiterates that the future relationship between UK and the rest of EU will be based on a balance of rights and obligations, taking into account the principles of each party. This balance apparently must also ensure the autonomy of the Union's decision-making and be consistent with the Union's principles, in particular with respect to the integrity of the single market and the Customs Union and the indivisibility of the four freedoms. It also underlines that any future and final deal must respect the result of the 2016 referendum and the development of UK's independent trade policy.

The 585-page document focuses on how much money the UK must pay to the EU as a settlement (often dubbed the divorce bill), details of the transition period and citizens' rights. It also covers the so-called principle of "backstop"- a last-resort option to maintain an open border on the island of Ireland in the event the UK leaves the EU without securing a trade deal. This would avoid the need for bringing back physical border checks. The backstop would also involve a temporary single customs territory, encompassing Northern Ireland and the rest of the UK, effectively keeping the whole of the UK in the EU customs union - until both the EU and UK agree that it is no longer necessary.

Chris Morris of the BBC has made some observations about the proposed UK Brexit deal. 

The first relates to the financial settlement (or "divorce bill") that the UK will need to pay to the EU to settle all of its obligations. This is expected to be at least £39 billion and it will have to be paid over a number of years as UK's financial contribution towards the annual budget of the EU budget. This amount, as expected, has become a cause of controversy among many Brexit supporters.

The next point is regarding citizens' rights. Efforts are underway so that UK citizens in the EU, and EU citizens in the UK, can retain their residency and social security rights after Brexit, be able to take up residency in another EU country during the transition period, including the UK, and be allowed to stay in that country after the transition and also if anyone stays in the same EU country for five years be allowed to apply for permanent residence. The negotiations are causing an enormous amount of anxiety and uncertainty as British citizens in other EU countries, still do not know whether they will be able to work across borders in the future.

Economists have also drawn attention to the continuing problem being faced with regard to Northern Ireland by the UK. They have noted that if no long-term trade deal has been agreed by the end of 2020 that avoids a hard border between Northern Ireland and the Republic of Ireland, and if there is no extension to the transition period, then a backstop consisting of "a single customs territory between the (European) Union and the United Kingdom" will be triggered. Northern Ireland consequently will be in a deeper customs relationship with the EU than the rest of the UK. The UK will be subject to "level playing field conditions", to ensure it cannot gain a competitive advantage while remaining in the same customs territory. Such a measure is creating anxiety and has already triggered a series of government resignations.

Another issue that is creating concern is rights associated with fishing. This relates to access to EU fishing in UK waters. Chris Morris has observed that fishing has been left out of plans for a single customs territory because several EU countries have objected to the idea that UK fish produce would be allowed unimpeded access to EU markets, without any corresponding guarantee that EU boats would be granted access to UK fishing waters.

The fifth issue that has drawn attention of the legal practitioners relates to the resolution of disputes. It is being pointed out that the UK will remain under the European Court of Justice (ECJ) jurisdiction during the period of transition and this might create difficulties in efforts to resolve a dispute through arbitration.

The next aspect that is continuing to draw attention is what future UK-EU relationship might be towards existing protocols pertaining to Gibraltar and British military bases in Cyprus. There is also the matter of UK withdrawing from the European Atomic Energy Community (EURATOM), which relates to how nuclear material is handled. Spain's Prime Minister Pedro Sanchez has already warned that Spain will oppose the Brexit agreement if the future status of Gibraltar is not clarified. His anxiety has originated from the fact that more than 10,000 Spanish workers cross the border into UK-controlled Gibraltar each day to work there in the industrial sector. It has also been pointed out that those staying in Gibraltar have voted overwhelmingly to stay within the EU. This has led him to demand that Madrid should be able to directly negotiate with London in this regard. Theresa May has however reiterated that Gibraltar's present controversial status is not likely to change.

CNN has noted that all 27 remaining European Union leaders, despite differing opinions, have signed off Britain's Brexit agreement - the Withdrawal Agreement and the Political Declaration - with mixed emotions at a special summit in Brussels on November 25 -but the deal's real test is yet to come. The process will now require the assent of the British Parliament and subsequent ratification by the European Parliament.

This debate within the Brexit matrix has led critics to express their concern that the UK, because of the latest Agreement, might find itself in a situation where it will have to continue to follow EU rules for an indefinite time without having any say over them.

These proposals also appear to have been taken forward by the present British government without full support of all the political parties in the UK Parliament. The Labour and the other UK opposition parties have said they will vote against the withdrawal agreement - as have Mrs May's partners the Democratic Unionist Party, on whom she relies for staying on in power. Dozens of her own Conservative MPs have also expressed opinions against it, arguing that it will keep the UK tied too closely to the EU and that, consequently, will not be a "proper" Brexit. Several Cabinet Ministers have already resigned over the proposed deal.

Meanwhile, campaigners have also emerged demanding that there should be a second referendum on Brexit - to secure a new public vote, including the option for the UK to remain in the EU. There however is no clear indication that politicians, including Theresa May, or the public, have the appetite for a second referendum. This is despite former UK Prime Minister and pro-EU campaigner Tony Blair mentioning in a BBC interview that a second referendum was "the only way you are going to unite the country."

British Prime Minister Theresa May in her own way has tried to salvage her efforts towards Brexit. She has written a letter to the British public pleading for their support for her Brexit deal, as the EU prepared to formally sign it off. In her media conference in Brussels on November 25, she has not only promised a "brighter future" for the UK after leaving the EU in 2019 but has also assured that it will be "a moment of renewal and reconciliation for our whole country".

The rest of the world, including the EU leaders in Brussels, will now have to wait and hope for the best.

Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance.


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