The Single Sentence That Would Rescue Theresa May's Brexit Deal

by Malcolm Lowe
November 21, 2018 at 4:00 am

https://www.gatestoneinstitute.org/13327/brexit-northern-ireland-protocol

Article 20 of the Protocol on Ireland/Northern Ireland should be supplemented by a sentence of the form: "If not earlier, this Protocol shall cease to apply [x] years after the end of the transition period unless both the Union and the United Kingdom agree to extend its application in whole or in part." Here "[x]" should be a number (of years) that is sufficiently large to convict the European Union of bad faith if it refuses to countenance such a sentence, but sufficiently small not to be absurd. We think that "three" would be a suitable number of years, but even "five" would establish the principle that the United Kingdom must have a guaranteed prospect of liberty.

The border between Northern Ireland and the Republic of Ireland. (Photo by Charles McQuillan/Getty Images)

Theresa May presented her Brexit deal to her cabinet on November 14, 2018 and to the House of Commons the next day. It consists of two documents, the "Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community" (585 pages) and the "Outline of the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland" (8 pages). The documents were released to the public only after the conclusion of that cabinet meeting.

The Problematic Protocol

The Members of Parliament hardly had time overnight to read the Draft Agreement in its entirety. Instead, they rushed to read the "Protocol on Ireland/Northern Ireland" because they knew that this had been the most controversial element in the negotiations between the United Kingdom and the European Union.

The Protocol recalls in its preamble that "the Withdrawal Agreement... does not aim at establishing a permanent future relationship between the Union and the United Kingdom" while noting that both parties recognize the need to maintain the "soft border" that exists between Northern Ireland, as an integral part of the United Kingdom, and the Irish Republic. Although it is hoped that that "permanent future relationship" will have been negotiated by the end of the "transition period" during which the United Kingdom completes its withdrawal from the EU, this may not happen. The aim of the Protocol, therefore, is to serve, if necessary, as a "backstop" arrangement to preserve the soft border even after the transition period while negotiations on the permanent future relationship are completed.

The mechanism of the Protocol is to define a certain kind of "customs union" between the United Kingdom and the European Union in lieu of a permanent relationship. Both Theresa May and her EU counterparts have expressed their firm belief that the Protocol will never need to be activated.

What Members of Parliament noted, however, was that the Protocol does not give the United Kingdom the right to withdraw unilaterally from the operation of the Protocol. Article 20 of the Protocol merely permits the United Kingdom to make a claim, sometime in the future, that the Protocol is no longer needed and to request that the EU agree to end the application of the Protocol. If the EU refuses, Article 20 permits the case to be taken to arbitration, which may rule against the United Kingdom. Thus the Protocol could go on forever and the United Kingdom would never escape from the grip of the EU.

Conservative Opposition to May

Although both Theresa May herself and probably a considerable majority of the Conservative MPs are prepared to risk that danger, two groups within the Conservative parliamentary faction do not agree with her. Moreover, the Conservatives are a few MPs short of a majority in the House of Commons and rely on the support of the Democratic Unionist Party of Northern Ireland (DUP), which is intensely suspicious of the Protocol. May's hope of nevertheless obtaining a majority for her Brexit deal in the Commons, which she is pursuing with impressive vigour, is surely in vain.

The one group styles itself the European Research Group (ERG). It claims some 60 MPs, most of whom are currently determined to vote against the deal. Conservative MP Jacob Rees-Mogg, leader of the ERG, has requested a vote of no-confidence in Theresa May, in a formal letter to the Conservative Party's parliamentary group. If 48 MPs (namely, 15% of the Conservative MPs) make such formal requests, an election for party leader must be called. May seems likely to win reelection, but the process would take some weeks as March 29 looms -- the date on which the United Kingdom is due to leave the Union and the transition period will begin. Reelection would also bring May no closer to getting her Brexit deal through the Commons.

The second group consists of five senior ministers who decided not to resign alongside others on November 15, but to stay on in the hope of persuading May to seek modification of the Protocol, although both she and her EU counterparts insist that it is too late to do so. The members of this "Gang of Five" are (in alphabetical order) Liam Fox, Michael Gove, Chris Grayling, Andrea Leadsom and Penny Mordaunt. If May is intransigent in refusing their request and they resign, her prospects of gaining a parliamentary majority for her Brexit deal -- or even surviving as leader of the Conservative Party -- will be all the slimmer.

The One-Sentence Solution

The problem is that neither the ERG nor the Gang of Five has explained what would persuade it to support the Brexit deal. The ERG is simply content that on March 29, 2019 the United Kingdom should leave the European Union and that trading relations should switch to World Trade Organization terms.

Overnight, therefore, all sorts of tariffs would be imposed on the vast number of individual goods, components and spare parts, etc., that currently flow in both directions tariff-free, while all means of transport and communications would themselves be disrupted, along with police and judicial cooperation, etc. In short, all those detailed issues would spring up which half of the Withdrawal Agreement is devoted to preventing. That is, the half of the text -- diligently and conscientiously compiled by experts -- that MPs did not have time to read before the Commons debate, There is no need to describe the disastrous impact on industry, agriculture, the 66 million population of the United Kingdom and a larger number of residents of the EU; others have already eloquently spelled it out.

As for the Gang of Five, they are reported to be demanding "a unilateral exit mechanism from the so-called 'backstop' arrangement over Northern Ireland," but they have not specified what form that would take. But it would doubtless be, like Article 20 of the Protocol, a procedure in which the United Kingdom would have to submit an application and negotiate the timetable of its implementation. In short, a tedious process, however assured its outcome.

What is needed is rather not "a unilateral exit mechanism" but a "self-termination mechanism" -- an automatic expiry date. We have carefully studied the terminology of the Protocol and the whole Withdrawal Agreement and discovered that the addition of a single sentence to the Protocol would suffice.

Article 20 of the Protocol on Ireland/Northern Ireland should be supplemented by a sentence of the form:

"If not earlier, this Protocol shall cease to apply [x] years after the end of the transition period unless both the Union and the United Kingdom agree to extend its application in whole or in part."

Here "[x]" should be a number (of years) that is sufficiently large to convict the European Union of bad faith if it refuses to countenance such a sentence, but sufficiently small not to be absurd. We think that "three" would be a suitable number of years, but even "five" would establish the principle that the United Kingdom must have a guaranteed prospect of liberty.

By refusing to permit that modification to the Protocol, the EU's negotiators would demonstrate that they do intend to submit the United Kingdom to indefinite captivity. Repudiation of the deal in the UK would be justly overwhelming. If the EU accepts the sentence, the biggest obstacle to obtaining a majority in the Commons for the Brexit deal would be removed. Even many ERG members, as well as the DUP, might reconsider their intention to vote against the deal. The prospect of an election for leader of the Conservative Party would likely vanish.

Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.

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Comment on this item

9 Reader Comments

Martin Lavengood • Nov 22, 2018 at 21:05

Finally, a spice of thought is poured on the pot of emotionalism that is brewing between Parliament and the ruling elites of the EU. It's incumbent on May or whoever leads the country to create a vision of what post-EU life looks like and stick with it; otherwise, yes, the EU will never let them go.

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Bisley • Nov 21, 2018 at 23:13

There is no sentence that could rescue May's deal with the EU, and it shouldn't be rescued because it isn't leaving. It's staying a part of the EU in most ways (and still under control of their laws, regulations, standards, and courts), for an indefinite period, without any voice in decisions, and still paying. The Irish border is only one problem of literally hundreds involved in this, and if there was no argument at all about it, most of the rest is still unacceptable.

The only solution to this at the present time is for Parliament to reject the agreement and leave without any constraints. This should have been the policy from the beginning (since it was what the public thought they were voting for), and the last two years spent preparing for it, but May had no intention of really leaving the EU, and always planned on a deal that kept the UK in the EU, but claimed to be out. Really leaving (rather than pretending to) without proper preparation is going to result in a certain amount of chaos and disruption, but it will be sorted out as quickly as possible because both sides must have the continuation of commerce under something close to the present conditions to avoid economic disaster. May and the Tory establishment have tried to sell out the public that voted to leave the EU by only pretending to leave -- and they may do it yet, but if they succeed it will be the end of the party at the next election.

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Malcolm Lowe

Bisley • Nov 23, 2018 at 05:41

(1) The sentence that I am proposing to add would precisely replace the "indefinite period" that you complain about with a fixed period (I suggest three years). Please take the trouble to read the article and understand it before repeating complaints that my proposed sentence would eliminate. (2) Even if the Protocol is not amended as I suggest, from the moment that it starts to operate (if it ever does) the UK will no longer be paying its annual contribution to the EU. (3) The first 300 pages of the Withdrawal Agreement contain many protections for UK citizens, especially if they currently work in the EU or if they work in the UK but have to visit the EU in the course of their work, also intellectual property rights, police and judicial cooperation, etc. All this would vanish with "no-deal." The people who glibly talk about a "no-deal" Brexit have not taken the trouble to read the Agreement and are unaware of the disastrous impact on the personal lives of millions of people in both the UK and the EU.

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Bisley

Malcolm Lowe • Nov 25, 2018 at 13:19

I read the article very well, and my comment is more accurate than either your article, or your response. Keeping the UK aligned with the EU is not leaving, and will not improve Britain's situation -- leaving will.

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Sylvan Moir • Nov 21, 2018 at 19:20

If this additional sentence with a set period inserted could demonstrate the good faith of the EU, doesn't its absence now, the lack of any time limit, already demonstrate lack of good faith on their part?

The UK government must know this. Theresa May can see the clear signs of lack of good faith from the EU, but presumably wants to hide this from the public and other politicians (perhaps also herself?), like some dirty secret .

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CeCelia Squires • Nov 21, 2018 at 12:05

Apparently May is naïve not to understand that the EU does not want them to leave and will make it impossible if not painful! The EU must make an example of the UK to keep other countries from also fleeing the failing EU!

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Genty

CeCelia Squires • Nov 21, 2018 at 17:28

I am sorry to disagree but Mrs. May voted in the referendum to remain in the EU. All else follows from that. The chaos is of her own making. She has undermined two Brexit Secretaries of State (they resigned) by ordering an unelected civil servant to countermand them in secret negotiations. This is not naivete; it is duplicity.

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Fred H • Nov 21, 2018 at 09:25

Theresa May frames the benefits of her deal in terms of economics. But she has failed to grasp that Brexit is not about money. It is about reclaiming national sovereignity and getting off the burning ship that is the EU. As it attempts to stave off break-up, the EU is going to try all kinds of crazy things, of which the proposed European army is one. It is a dying empire and may well end up being the cause of precisely the thing was originally supposed to prevent: war in Europe.

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Michael S • Nov 21, 2018 at 04:22

"By refusing to permit that modification to the Protocol, the EU's negotiators would demonstrate that they do intend to submit the United Kingdom to indefinite captivity."

Yet another test of the EU's good intentions, at the UK's expense.

I think matters have gone quite beyond this. Either the UK will become a completely free and independent, sovereign state, or it will become a vassal of the EU. Many, including Theresa May, seem to favor the latter.

I'm just waiting for the Brits to get on with it. If they want the benefits of trade and other contacts with the US, they need to get out of the EU.

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