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No, Brexit Isn’t Over Yet

Analyses - 2 October 2020

By Georgina Wright

Resident Senior Fellow and Director of the Europe Program

You would be excused for thinking Brexit was done and dusted. Boris Johnson was elected on the promise of getting Brexit done. The withdrawal agreement concluded, the Prime Minister – and the public – were keen to focus on other topics. And with a global pandemic to reckon with, attention has understandably been elsewhere.

But the past few weeks have seen Brexit soar up the news agenda. That’s not entirely surprising: the UK and EU have now less than 100 days to reach a deal. Neither side was prepared to make big trade-offs before the Autumn. But even though both sides are committed to a deal, there are still many things that could go wrong. With time running out, and many voices to please, it likely to be a dramatic Autumn.

The UK and EU still need to reach a deal

The UK and the EU are about to wrap up their ninth formal round of negotiations. The sticking points are well-known: both sides are at odds over the need for a level playing field, fishing quotas and access for EU vessels to British waters.

Though the mood music over recent weeks has been generally positive – with both sides stating they want a deal – they are still far off from a deal. The meeting between the Prime Minister and Ursula von der Leyen, the president of the EU Commission, tomorrow will be key to determining what happens next.

The withdrawal agreement must be applied in full

The UK and EU still need to agree some key practical decisions on trade flows between Great Britain and the Northern Ireland Protocol.

The EU has always been clear that there would only be a trade deal with the UK on condition the withdrawal agreement, which was passed in January 2020, is applied in full. 

The UK and EU still need to agree some key practical decisions on trade flows between Great Britain and the Northern Ireland Protocol. These discussions, which are separate to the trade talks, are taking place in the UK-EU joint committee. 

For the UK, these discussions are not moving fast enough. It’s one  one of the reasons why the UK decided has decided to take unilateral action through the UK internal market bill: if the the government has said that these provisions would act as a safety net: if the UK and the EU are unable to agree on all practical aspects of the Northern Ireland Protocol, then the bill would give UK ministers the power to make unilateral decisions on how to proceed, to ensure trade continues to flow smoothly across the whole of the UK. For the EU, these provisions constitute a direct breach of the withdrawal agreement. For the EU, these provisions constitute a direct breach of the withdrawal agreement.

The EU gave the UK until the end of September to remove the provisions from the bill. On 1 October, it took legal action by launching an infringement procedure against the UK.

The UK and EU need time for scrutiny

Although the transition period runs until 11pm (GMT) on December 31, the window for negotiations is a lot smaller. 

Boris Johnson enjoys a comfortable majority in Parliament. Passing any UK legislation, even last-minute, is unlikely to be a problem.

For starters, both sides will want their lawyers to review the text to make sure there are no loopholes or room for (mis)interpretation. Even the speediest of lawyers need time.

Then there is voting. In the UK, ratification is likely to be relatively straightforward. There is no obligatory vote on the final deal, though the government would need to introduce some legislation to adopt it into UK law. Unlike Theresa May, Boris Johnson enjoys a comfortable majority in Parliament. Passing any UK legislation, even last-minute, is unlikely to be a problem.

Voting on the EU side, however, is likely to be trickier. Over the years, the EU has tried to give the EU Parliament a greater role and say over trade policy. Today, to pass any trade deal, the EU requires a minimum of two votes: the Council – the grouping of the 27 governments – and the EU Parliament. The EU27 might informally sign off a deal, they won’t ratify it until the EU Parliament has had its say.

With so many businesses squeezed as a result of Covid-19, both sides may have no other choice but to explore new measures to phase in the new relationship.

This would need to happen soon, ideally between December 14 to 17, which is the EU Parliament’s last plenary of the year. MEPs could be recalled for an extraordinary vote, but no-one really wants that at Christmas. MEPs will want time to debate the deal at committee stage and at plenary level before voting happens. The less time they have, the more vocal – and threatening – they will become.

Both sides must continue to prepare for disruption

Finally, but perhaps most importantly, businesses and citizens will need time to adjust to the radically different trading relationship that will come into effect on January 1 – deal, or no deal. This includes having the right paperwork at hand, factoring in delays at the borders and making sure your pet has the passport and vaccines it needs to travel with you. The UK government must get the GB/Northern Ireland border up and ready.

With so many businesses squeezed as a result of Covid-19, and the uncertainty of a deal still looming, both sides may decide to explore new measures to gradually phase in the new relationship.  That too would need to be negotiated.

No-deal planning is essential

With so much in the balance, and so little time, a no-deal accident by default remains a possibility. As pressure piles on to reach a deal, so will the need to prepare for all eventualities. Charles Michel, the President of the European Council, is expected to say as much in his informal update to Member States today.

It has been a quiet summer for Brexit watchers – but the next weeks will be crucial. The negotiations still face significant hurdles – beyond the politics, there are some legal and technical requirements that need to be put in place. All of this takes time. Brace yourself: it will be a bumpy road ahead.

 

Copyright : JOHN THYS / AFP

 

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