The Brexit Deal

Federico Fabbrini (Director of the DCU Brexit Institute)

Yesterday evening, Wednesday 14 November 2018, the United Kingdom and the European Union reached an agreement on the terms of an orderly withdrawal of the UK from the EU. The Brexit deal, which includes the full text of a withdrawal treaty as well as the outline of a political declaration on the framework of future EU-UK relations, was published following a tense UK cabinet meeting at 10 Downing Street which, not without internal opposition, eventually gave Prime Minister Theresa May the green light to strike an agreement with the EU.

The last obstacle on the road toward a successful agreement – the resolution of the Irish border issue – was solved by the negotiators by agreeing that the UK will remain in a single customs territory with the EU after the end of the transition period (which, however, can itself be extended beyond 2020) for as long as it is necessary to avoid a hard border between the Republic of Ireland and Northern Ireland. This legally binding backstop solution removes the need for customs and regulatory checks on the island of Ireland while simultaneously avoiding any kind of border in the Irish Sea between Northern Ireland and Great Britain – thus meeting the red lines advanced by both the EU institutions and the UK government during the past months.

While the outline for a political declaration is a short (8-page) aspirational document – which will have to be teased out by the heads of state and government in the European Council at the next special summit, called for 25 November 2018 – the withdrawal treaty is a long (585 pages), detailed document which will require careful analysis. In the coming days the Brexit Institute will engage in a careful analysis of the Brexit deal – but some initial considerations are in order: Getting a deal was difficult. Challenges remain ahead. But the outcome was somehow inevitable.

Getting a deal was difficult

Reaching an agreement between the UK and the EU turned out to be extremely challenging. Even though the two parties had reached consensus on almost 75% of a draft withdrawal treaty back in March 2018, it took eight more months to break the stalemate on the remaining issues. In fact, a ‘hard Brexit’ scenario appeared at some point as the default option in EU-UK relations, giving the ever-ticking clock and the unwillingness of both parties to make a meaningful compromise.

As already mentioned, the main outstanding issue in the negotiation was the issue of the Irish border – which acquired a symbolic political relevance particularly in the UK, not least due to the confidence and supply agreement between the Tory government and the DUP, which perceived any Northern Ireland-specific backstop as an infringement of the constitutional integrity of the UK. Nevertheless efforts to de-dramatize the border issue succeeded and, following proposals by the UK, the negotiators were able to agree on a whole-UK backstop, which ensures customs and regulatory alignment between the EU and both Northern Ireland and Great Britain.

Challenges remain ahead

If the Brexit deal represents a crucial step toward an orderly withdrawal, the risks of a ‘hard Brexit’ are not yet to be excluded. In fact, the important challenges remain ahead as the withdrawal agreement and the political declaration on the framework of future EU-UK relations will need to obtain parliamentary approval for ratification. While few surprises are to be expected from the European Parliament and the EU Council – both of which were regularly briefed on the advancement of the negotiations on the EU side – major uncertainties remain as to whether a majority in favor of the deal will coalesce within the British Parliament at Westminster.

In fact, while the withdrawal agreement – and notably the backstop solution envisioned for the Irish border – should allay any concern of an infringement of the UK’s constitutional integrity, there is no doubt that the solution found by the negotiations – with the possibility to extend the transition period beyond 2020, and the commitment for the UK to remain in a single customs territory with the EU for as long as it is necessary to prevent a hard border – foretells the prospect of close ties between the UK and the EU for long after Brexit – a scenario which is anathema to the Brexiteers.

The outcome was somehow inevitable

And yet, seen from a systemic perspective, this outcome was inevitable. From a strategic point of view, it was clear that the UK needed a transition period to phase out of the EU smoothly, and accepting the Irish backstop was a necessary condition to obtain such a transition. From an economic point of view, otherwise, only a customs union with membership of the EU internal market would guarantee to the UK economy the benefits which firms and citizens currently enjoy. Besides the political posturing, therefore, it was predictable that at least the UK Government would try to reach a deal with the EU which prevented a dramatic operational disruption and immediate economic damage to the country. Hence, what may appear as a political defeat for British politics actually represents a victory for the British economy – while certainly exposing the inevitable consequences of voting to leave the EU in terms of loss of voice within the EU itself.

In conclusion, the deal reached yesterday is a crucial step toward an orderly Brexit, but the next few months will be crucial – with votes in the UK House of Commons and meetings in the European Council determining the final shape and implications of the UK withdrawal from the EU. In fact, the early resignations from the UK Cabinet signal that even the next few hours will be an important test of the times ahead.

Federico Fabbrini is Full Professor of European law at the School of Law & Government of DCU and the Principal of the Brexit Institute. He holds a PhD in Law from the European University Institute and previously had academic positions in the Netherlands and Denmark. He recently wrote an In-Depth Analysis, requested by the AFCO Committee of the European Parliament, on The Institutional Consequences of a ‘Hard Brexit’.