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Breaking up is hard to do
On Sunday 25th November 2018, 885 days after the Brexit referendum took place, 606 days after the UK triggered the Article 50 TEU process and 124 days before the UK officially withdraws from the EU, the UK Prime Minister Theresa May travelled to Brussels to take part in the meeting of the European Council, which officially endorsed the text of the Withdrawal Agreement.
This legally binding international agreement together with the non-legally binding political declaration on the future UK-EU relationship are the by-products of painstaking negotiations that took place over the last 18 months.
In its 585 pages, the Agreement aims at tying up the loose ends created by the UK’s withdrawal from the EU such as the ‘divorce bill’, the rights of the EU citizens residing in the UK and UK citizens residing in one of the other 27 Member States and the transitional period. It is hardly surprising that the negotiations have proved difficult if one takes into account that secessions, even when they are a result of a consensual and democratic process are never easy. The disentanglement of highly integrated legal orders is a very sophisticated and time-consuming exercise. Of course the EU is not a sovereign state. However, the EU and the UK legal orders have been in a symbiotic relationship for more than four decades.
The thorniest issue, which has haunted the process from the beginning, is related to the status of the Irish Border post-Brexit. Theresa May has insisted that the result of the Brexit referendum ‘was a vote to take control of our borders’. In order to do that, the UK will be leaving both the EU single market and the customs union. At the same time, May’s government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. So, the UK and the EU have been facing an almost unsolvable riddle. How can they keep open a land border between an EU member state and a country that is outside the single market and the customs union?
In December of 2017, the UK and EU duly reached a political agreement that introduced the "backstop". This envisaged that if the future UK-EU trade deal did not provide for a frictionless Irish border, either Northern Ireland or the UK as a whole would remain aligned to the single market and the customs union after Brexit took place. Indeed, in the first draft of the Withdrawal Agreement, the EU proposed that Northern Ireland would remain part of the EU customs territory even after Brexit.
The notion of Northern Ireland remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures was outrageous to many, not least the DUP. This is why the backstop arrangement has been amended significantly and appears differently in the finalised version of the withdrawal treaty. Barring a deal on free trade, the UK as a whole will remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border.
Despite the shift from the original plan, this has attracted such significant opposition that the government does not seem able to secure a majority in the House of Commons that would approve the Withdrawal Agreement. As a result, the Prime Minister had to postpone the vote on the agreement that was planned to take place on Tuesday 11 December. Instead, she embarked on a mini tour of European capitals with the aim to convince her counter-parts to offer the UK extra assurances that the ‘backstop’ will never be used or alternatively, if it is used this would be for a defined short period.
Despite the doubts that exist concerning the success of her last-minute efforts to secure concessions from the EU, one has to point out that on 29 March 2019, the UK will be withdrawing from the EU by automatic operation of law. This means that there is very little time left for the UK and the EU to agree on an orderly Brexit.
A failure to achieve an agreement will mean that the UK will leave the EU without a deal. Such a ‘no-deal’ scenario would have significant political, economic, trade and legal costs. More importantly, it would exacerbate the deep divisions of the UK public with regard to the age-old existential question that relates to the relationship between the UK and the rest of Europe. If the current political and constitutional crisis is a preview of what is to come, there is the real danger that the UK will become the sick man of Europe.