Professor Michael Dougan - 10/12/2018

Brexit Insights

Prof Michael Dougan

Thanks very much for inviting me to Stoke to speak to you.  

The main theme of my talk is the proposed withdrawal package, which was endorsed by the leaders of the EU27 at an extraordinary meeting of the European Council on 25th November 2018.  

The package consists of two main things.  First, we have the text for a withdrawal agreement – which concerns the immediate challenges required to ensure that the UK’s withdrawal from the EU is smooth and orderly, rather than chaotic and disorderly.  That relatively hefty text will be a legally binding international treaty.  

Secondly, we have the political declaration which is intended to list the principles that should govern subsequent negotiations on the future EU-UK relationship in fields such as trade, security, the environment, research etc.  In itself, that relatively short political declaration is merely an aspirational statement of intent – it is neither legally binding nor enforceable.  

That entire package – legally binding withdrawal agreement on an orderly departure, plus political declaration on the framework for negotiations on the future relationship – must now be formally approved by the UK Parliament, by the EU27 governments meeting in the Council, and by the European Parliament.  If those approvals are granted: the withdrawal package can be ratified and the necessary steps taken for its implementation in time for 29 March 2019.

So that’s what we’re dealing with.  Let’s now offer some more detailed analysis of the content of that withdrawal package – starting with the proposed Withdrawal Treaty.

Much of the text of the Withdrawal Treaty was actually agreed back in March 2018 and hasn’t changed very much since then.  Since then, attention was largely focused on hammering out agreement on a relatively small number of more contentious issues.

It’s fair to say that large parts of the text are of little interest to a general audience.  For example: Part 3 of the treaty covers a wide array of pretty specialised, very technical situations where the UK’s engagement with EU rules or institutions has to be “wound down” in a managed way: for example, what to do with court proceedings that are still ongoing, or with intellectual property rights currently protected under EU rules, or with requests for cross-border police cooperation in criminal investigations that are still live.  

Or again: Part 5 of the treaty deals with the UK’s financial settlement – the “divorce bill” – which the Brexit Brigade still believe is the price the UK is willing to pay for a good future deal; but which the EU27 have been absolutely clear is merely the settlement of the UK’s past membership accounts – paying the bills which the UK had already promised to pay, which has little to do with talks on future relations.  But whatever the gap in political perception, the actual treaty provisions aren’t that interesting.  Indeed: even by the generally boring standards of most legal texts, Part 5 is something else – as we say in Liverpool, it would put a glass eye to sleep…

But of course the draft treaty also deals with some much more fundamental issues.  I’m going to deal with three of them tonight: 1) the protection of existing migrant citizens who have already made use of their free movement rights; 2) the transitional period which is intended to protect us all from the immediate consequences of withdrawal; and 3) the “backstop” which has been agreed to avoid the return of a hard border across the island of Ireland.

First up: citizens rights.  Here: we’re talking about the legal regime that will govern the future protection of citizens from the UK and the EU27 who have already exercised their free movement rights (to work or study or retire) by the cut-off date provided for under the proposed withdrawal treaty.  

We’re not talking about the UK or EU immigration regimes that will cover everyone else into the future.  On that point, suffice to say that Theresa May is fond of boasting about how free movement is coming to an end “once and for all”.  Indeed: it seems to be one of the few significant things she thinks she has “achieved” in the negotiations.  Certainly: the political declaration on future EU-UK relations makes clear there will be only limited provision for the mobility of people in any subsequent agreement.  Otherwise, that will be left to the new immigration regime of the UK; and to the 27 immigration regimes of the Member States (as supplemented by whatever common rules are agreed at the EU level).  

Of course: what Theresa May calls an achievement, is actually a victory for propaganda and bigotry over evidence and rational self-interest.  So, an achievement of sorts: one of the greatest triumphs of “fake news” so far in Brexit Britain.  But it’s not what the withdrawal treaty is about.  

Even focusing on the legal regime to govern the future protection of existing migrant citizens, I’m going to talk primarily about the terms agreed under the proposed treaty; not the way in which that treaty will then be implemented into 28 different legal systems in the UK and across the EU.  

Obviously, such national implementation is very important.  It’s true that most of the citizens rights provisions in the proposed withdrawal agreement are detailed and precise – they are intended to be directly enforceable on their own terms.  But certain provisions also allow individual countries to make important discretionary choices about how to treat existing migrant citizens – so that the overall treaty must be read within the context of each individual national system.  

Moreover, the treaty regime is explicitly described as a minimum standard of protection: individual countries can go beyond its provisions and enact more generous rules, on qualification for protection or when it comes to the content of many of its associated rights.  Obviously: we have neither the time, nor frankly the expertise, to examine 28 national implementation systems.  So although we’ll make reference – particularly to the UK scheme – we’re going to focus on the proposed withdrawal agreement itself.

The basic idea is fairly straightforward.  Those EU or UK nationals already lawfully resident in their host country, under EU rules, at the relevant cut-off date, will be offered a new system to protect their subsequent residency and associated rights.  If they have already built up at least 5 years of lawful residency: they will qualify for long term protection.  If not: they will be offered interim protection, in accordance with the same EU rules as before, until they reach that 5 year mark, when they can then qualify for those long term rights.

That’s the basic idea.  Let’s now break it down into some of its key elements – of which we’ll concentrate on four.  

First up: what is the relevant cut-off date?  After all: that date is absolutely crucial.  People who move before that date will continue to do so under existing EU free movement rules and are then potentially protected into the future in accordance with the proposed treaty.  By contrast: almost everyone who moves after that date will do so under the ordinary immigration rules applicable in the UK and the EU27.  

At the EU’s insistence, the relevant cut-off date will be, not the date of actual withdrawal in March 2019, but instead the end of the transitional period.  So that means 31 December 2020 – or later, if (as we’ll see shortly) the transitional period is eventually extended, using the facility now included in the proposed treaty.  So, that gives everyone at least 2 years, possibly 3 or maybe even 4, to build up more time – or indeed, to move country altogether and start building up their qualifying periods from scratch.  

The second key element of the new regime is that it relies on existing EU free movement law as its general baseline – both when it comes to identifying who is entitled to protection and as regards the actual content of their associated rights.  And as such: the new regime potentially incorporates some the familiar problems that we associate with EU free movement law.  

Forget the Leave and indeed Government propaganda about “unlimited free movement rights”.  There is no such thing.  Free movement rights are basically limited to either the economically active (workers and the self-employed) or the financially independent (people who have enough money to look after themselves and are covered by comprehensive sickness insurance for their host country).  There are a few exceptions: for example, more generous rights for people who are forced out of work through industrial accidents; less generous rights for workseekers who haven’t yet entered but are genuinely trying to find employment.  But there is no right, simply to go and live in another country at its public expense.  
Remember that, to qualify for protection under the withdrawal agreement, migrant citizens must be lawfully resident in their host state in accordance with those EU rules both at the end of the transitional period and also during the crucial 5 years of time when they are building up their entitlement for long term protection.  And that’s potentially problematic for anyone whose residence hasn’t been strictly in line with free movement law.

After all: many Member States (including the UK) simply haven’t enforced the EU free movement regime very rigorously in the past.  They didn’t insist on people meeting various requirements, they didn’t pursue situations of non-compliance.  And that potentially leads to problems, if and when the “real rules” are enforced more rigorously against migrant citizens under this withdrawal treaty: for example, by insisting upon evidence of current or previous comprehensive sickness insurance for periods of non-work.  

If any given country soon decides to start enforcing the EU baseline rules more strictly: some people who believed themselves to be lawfully resident (indeed, who were effectively encouraged in that belief by their host state) may find their application for protection under the withdrawal treaty more complicated than expected.
Nevertheless: as we said before, the withdrawal regime is a minimum standard only.  A country can decide not to enforce the EU baseline strictly and to the letter.  So, for example, the UK has said that it will operate a more straightforward system for EU citizens living in the UK at the end of the transitional period – based primarily on evidence of residence – without having to prove (say) comprehensive sickness insurance for students or retirees.
The third key element of the new regime concerns those situations where it deviates from the general baseline provided by current EU free movement law.
In particular, there are a series of situations where the proposed regime allows for restrictions on future citizens rights protection which would not comply with existing EU law.  In particular: countries are entitled to insist that migrant citizens go through a formal application process in order to qualify for protection – failing which they may ending up losing their rights altogether – as the UK has done with its “settled status scheme”.  Similarly: the range of family members, who would be entitled to join a migrant citizen in their host state, after the end of the transitional period, is more limited than now.  Be careful who you fall in love with!

Moreover: there are several situations where the loss of existing EU rights has not been addressed by the proposed treaty at all.  For example: there is no provision for continued rights to vote in local elections – the EU having treated this as a matter for national competence.  And most strikingly: there is no provision for the onward movement rights of UK nationals outside their host country and across the wider EU27 – the problem of the so-called “golden cage”.  The UK says this should be dealt with during the future relationship negotiations.  Though in the meantime, at least some UK citizens may be able to rely on the existing EU rules governing the treatment of long-term resident third country nationals, which provide for onward movement rights similar (albeit not identical) to those of Union citizens themselves.  

But there is a broader point we need to bear in mind here.  After Brexit, the entire basis for and context of EU-UK migration will change profoundly – for everyone, of course; but even for those existing migrant citizens specifically protected under this treaty.  Things which weren’t such a problem before, risk becoming much more serious problems in future. Especially because: whereas a change in or loss of status under EU law is relatively flexible and only ever temporary; a change in or loss of status under this citizens rights regime is potentially terminal and / or permanent.  
The fourth and final key element of the new regime concerns its interpretation and enforcement – particularly on the ground, within the UK and across the EU27.  Here, the proposed treaty sets out a fairly comprehensive regime.  There are rules about consistent interpretation of the citizens rights provisions; provisions about legal enforcement by individuals before the national courts; and extra provisions on monitoring and compliance – by the Commission as regards the EU27 and by a new “independent authority” within the UK.  

In fact, most of the concerns raised about the citizens rights provisions are more empirical than legal.  Taking the UK as an example: the sheer number of people involved, combined with the novelty of the situation, makes it inevitable that some things will go wrong.  And there will be large numbers of people who have had only limited engagement with the national immigration system, or who might simply assume they are not covered or affected by the new regime.  Will the Government’s publicity be adequate?  And what should the authorities do if significant numbers of people simply don’t engage with the registration scheme?  Deport them all?

Another group of issues relate not to potential abuses of power by public authorities; and rather to the intersection between the citizens rights regime and private sector behaviour.  What will be the impact of all this uncertainty and new complexity, upon the treatment of EU or UK citizens by private employers, private landlords, private businesses?  In the UK at least, such worries are exacerbated by the Government’s decision not to issue protected EU citizens with a new residency document.  They propose to rely instead on some digital reference that private sector employers and landlords can then verify online.  Sounds foolproof, doesn’t it?

Let’s wrap up on citizens rights.  We could say that this part of the deal is generally satisfactory.  We can hope that individual countries err on the side of generosity in their national implementation plans.  We can keep our fingers crossed that most people’s experience of registration and protection proves essentially smooth and straightforward.  We can cynically assume that many of the deal’s shortcomings will only have limited negative impacts or at least only on limited numbers of people.  

But is that really good enough?  Not for me.  Even if Brexit gave no other cause for concern, created no other grounds for complaint: the very fact that millions of people, here and across the rest of Europe, have seen their lives and futures thrown into uncertainty and anxiety is an unforgiveable act of cruelty.    

And it’s not just uncertainty or anxiety.  Let’s not forget the bigger picture here.  For years, EU nationals have had to listen to themselves and their families being demonised and scapegoated by thoroughly dishonest and oft-times overtly bigoted Leave campaigners.  Since the referendum, such anti-European anti-immigrant rhetoric – devoid of any objective basis, fuelled purely by political calculation – has been directly endorsed and adopted by the Government as official UK state policy.  Though that turned out to be merely a continuation of the “hostile environment” policy towards migrants as a whole – as exemplified by the Windrush scandal and presided over by Theresa May.

Should anyone be surprised that all this political venom and official animosity sits alongside a reported rise in hate crimes as well as discrimination against EU nationals in employment, housing and service provision?  It is any wonder that growing numbers of (generally better educated, hard working, tax paying) EU citizens are shunning the UK – with potentially damaging implications not only for private sector businesses but also public services in health and science?  Leave campaigners, as well as this Government, should hang their heads in shame.    

Let’s move on to our second main issue under the proposed withdrawal treaty: transition.  Every informed observer knows that the UK remains ill-prepared to cope with the full consequences of the Government’s decision to leave the EU on 29 March 2019.  That is true not only of public, but also private sector preparations; not only of having in place the necessary regulatory frameworks and institutions, but also of having made the appropriate logistical and infrastructural changes; not only of sorting out constitutional relationships within and across the UK, but also of regularising and rebuilding international relations with a host of other countries and organisations.  

In order to protect us all from such a potentially terrible failure of responsible public administration, the UK Government requested and the Withdrawal Treaty now provides for a transitional period.  So: although the UK will leave the EU at the end of March 2019, not much is actually going to change on the ground, until the end of December 2020, because the UK will remain subject to almost all of the same EU rules and regulations as if it were still a Member State.

The provisions on the transitional period were largely agreed back in March 2018.  And the idea is pretty straightfoward.  The UK has to respect and apply all EU rules – including new EU legislation and caselaw from the Court of Justice – until the end of transition.  There are a few exceptions: for example, there will be restrictions on the UK’s ability to opt into new EU measures tackling cross-border crime – hurrah for taking back control!  

But the main difference is that the UK will have no institutional representation in the EU: no seat at the European Council, no vote in the Council of Ministers, no MEPs in the European Parliament, no Commissioner, no judges in the EU court system.  When Jacob Rees Mogg describes this transition as a condition of vassalage, he isn’t far wrong – even if the real responsibility for the UK’s weakness and desperation actually lies with him and his fellow Leave campaigners and their delusions about “taking back control”.  

But we shouldn’t smirk too much at the sight of the Brexit Brigade fuming and raging.  After all: the UK Government didn’t just request a transition because it would protect us all from a cliff-edge catastrophe in 2019.  It also conceived and designed that transition with another, less benign goal in mind.  

The UK will leave the EU in 2019.  But thanks to the status quo transition, many people aren’t going to notice much of a difference – at least not until 2021, when the real consequences of withdrawal start to become clearer – by which time, it will be too late for anyone to do anything about it.

So let’s be clear: the Government was desperate to secure its transitional regime, not just to give us all more time to prepare for the consequences of its own incompetence, but also because that transition is a key part of their overall plan to deliver “Brexit at any cost” – and to shield themselves from responsibility let alone accountability for the ultimate consequences of their own actions.  

Returning to the withdrawal treaty: the only significant new amendment to the terms which were agreed back in March 2018 concerns Theresa May’s additional request for a power to extend the transitional period.  And although she tried to lie about in public (as usual) this was in fact her request: the idea didn’t come from the EU or emerge spontaneously from the primordial soup.  Of course, the request for an extension is an implicit admission that even the extra 20 months already agreed is simply not enough time to achieve what the UK needs to achieve in order to protect itself from the full, immediate consequences of Brexit.  

But the power of extension can only be used once.  And it can only be for a fixed period of additional time: either one year, or two years, to be decided in due course.  Either such extension would still require the EU’s positive agreement – and we can see from Sunday’s European Council meeting that the EU27 are already setting out their conditions and demands, e.g. that the UK behaves itself like a good little child and does what it promised to do under the withdrawal agreement.  

If an extension is eventually agreed upon, the UK would still be required to make an appropriate contribution to the EU budget.  But UK participation in any EU programmes (such as for research and science) would be on the terms offered to third countries, not Member States, though again with a price tag.

Otherwise, however, the UK would largely remain bound by the “vassalage” terms of transition.  And that would of course have important knock on consequences: for example, all new EU legislation and executive acts and judicial caselaw adopted during the extended transition would be fully incorporated into and retained under domestic UK law thanks to the European Union (Withdrawal) Act 2018.  And as we already mentioned before, the final “end of free movement”, so longed for by the Brexit bigots and promised to them by Theresa May, would be postponed; while the group of individuals entitled to future protection under the citizens rights provisions would be expanded in line with the extended transition.    

Third main issue: the “backstop” to prevent a hard border in Ireland.  The challenges created by Brexit for Northern Ireland – and there are many – are dealt with in a lengthy Protocol to the withdrawal treaty.  Chief among them – and the main cause of controversy both during the negotiations and with the final proposals – is the so-called “backstop” guarantee for avoiding the return of a hard border, affecting the physical movement of goods across the island of Ireland.

Now, the current fashion in Leave propaganda is to portray the Irish border as a problem deliberately and falsely manufactured by the evil Europeans so as to punish and harm the UK; or by wicked Remainers hell-bent on trying to keep the UK tied into the Single Market and the Customs Union in some form of hellish perpetuity.  In reality, of course, every rational and responsible actor agrees that this is both a very serious and a very difficult challenge.  

The prospect of a physical border for the movement of goods across the island of Ireland causes concern: partly because of the potential economic impact (e.g. on highly integrated agricultural and manufacturing processes and supply chains); partly also for the likely social disruption (especially to border communities accustomed to a life free from border checkpoints); and partly for sheer logistical reasons (not least the difficulty of effectively policing over 200 formal crossing points across over three hundred miles of frontier).  

But most of all, the idea of a return to some physical manifestation of the border between Northern Ireland and the Republic carries enormous political significance.  Part of the genius of the Good Friday Agreement is that it allows both Unionists and Nationalists to feel that the existing constitutional settlement serves their respective (though often differing) interests.  For Unionists, the Agreement promises that Northern Ireland will remain part of the UK for as long as a majority of its population so desires.  Nationalists can regard reunification with the Republic as a long term aspiration – but in the meanwhile, one can move freely across the island, with the only obvious difference being the change on roadsigns from miles to kilometres.  

Put simply: the absence of a physical frontier is a crucial part of a wider political settlement that helps secure and maintain cross-community support for the peace process.  That process is already under strain from the continuing inability of Northern Ireland’s politicians to cooperate in running an effective devolved administration in Belfast.  The deep divisions and negative consequences inherent in the very process and final act of Brexit were always bound to make the challenges more acute.  The added prospect of a return to past borders can only risk pouring oil on the fire.  

Not that such concerns are universally shared or felt.  You may have read about the research published in Edinburgh a few weeks ago which suggested that well over 80% of English leave voters believed a collapse of the peace process in Northern Ireland would be a price worth paying for Brexit.  This is “Brexit at any cost” – even one measured in blood.  

What was always going to be a difficult problem has been made far worse by the decisions and actions of the UK Government.  After the 2016 referendum, the Government announced (with almost no public or parliamentary debate or discussion) that the UK would be leaving the Single Market and the Customs Union. That inevitably means having a customs and regulatory frontier with the EU – including the Republic of Ireland.  But the Government also promised there would be no return to a hard border on the island of Ireland.  The only feasible way to deliver that promise is for Northern Ireland to remain (de facto) within the Customs Union and at least parts of the Single Market (even if the rest of the UK does not).  Yet the Government insists that there will be no new trade barriers erected within the UK itself, between Northern Ireland and Great Britain.  However, the only way to avoid that prospect is… for the UK as a whole to remain within the Customs Union and the Single Market – so we’re right back where we started!

In other words: the UK Government has been promising irreconcilable things to different groups of people.  The situation is made all the more complicated by the fact that a clear majority of the population in Northern Ireland voted to remain within the EU during the 2016 referendum; and yet, since the UK’s 2017 general election, the minority Conservative Government in London has been propped up in power only through the support of the (hardline unionist, hard right politics, Europhobic and fervently pro-Leave) Democratic Unionist Party.  Indeed, it is fair to say that the UK Government has dropped even the slightest pretence of acting as an “honest broker” between the two main communities in Northern Ireland; its dependence on the parliamentary support of the DUP has offered the latter disproportionate influence over these negotiations.

That’s the problem we have to solve (well - one of a thousand problems, but it’s the one we’re focusing on right now).  What about a solution?  

Both sides hope (rather optimistically) that the need for a hard border can be avoided, simply through the future trading relationship between the EU and the UK as a whole.  If that doesn’t look likely to be in place by the middle of 2020, the UK could ask for the status quo transitional period to be prolonged (using the power to agree a one-off extension we talked about just before).  But in any event, the “backstop” may well be needed if and when the transitional period expires and no satisfactory alternative solution has been found or is at least ready to be put into operation.

Designing that backstop has been tortuous.  As we said before: an inherently difficult conundrum was made far worse by the UK Government’s insistence on promising irreconcilable things to different groups of people.  Something had to give.  Someone had to be disappointed.  But amazingly: the solution brought forward by the Government has managed to disappoint almost everyone at the same time.

The centrepiece of the proposed backstop is a de facto customs union between the EU and the whole of the UK, which would remove tariffs in trade between the two parties – thereby solving half of the “hard border” problem in Ireland.  

But this is a customs arrangement built almost entirely on the EU’s terms: for example, the UK would have to comply with the EU’s tariff system and much of its trade regime in relations with third countries; and the UK would have to respect a whole range of minimum standards in fields like competition, state aid, environmental and labour protection – so as to guarantee that UK businesses operate on a level playing field with EU businesses.  

And just as importantly: this is a customs union with no definite expiry date.  The two parties may hope to replace the backstop with a better alternative in the future.  But there is no guarantee that that will happen within any clear timescale or indeed that it will ever happen at all.  And although the Government has made much of securing an explicit mechanism for reviewing the backstop, the fact remains that replacing or terminating these arrangements will ultimately require the EU’s positive consent.    

On the one hand, of course, the hard Brexit brigade find this thoroughly objectionable: they don’t want any form of customs union with the EU; and they see this one (quite rightly) as a perpetuation of the vassalage already introduced by the transitional period; it also significantly limits the UK’s room for trade agreements with other countries; and it prevents the Brexit brigade pursuing their hard right dreams of deregulating the UK’s existing social and welfare protection standards once outside the EU.   

On the other hand, it is obvious that Remain supporters should also feel unhappy with these proposals: they do not offer full and full-blooded UK membership not only of a Customs Union but also of the entire Single Market; and of course, it seems insane to swop the UK’s current position of leadership and influence within the EU for the status of a mere rule-taker – outside the Union’s institutions but still bound by their rules.  

But the EU-UK customs plan isn’t the only element of the proposed backstop.  Dealing with customs duties solves half the Irish border problem.  There remains the challenge of how to avoid the need for extensive checks on goods moving between Northern Ireland and the Republic, so as to guarantee compliance with a wide range of core EU regulatory standards.  

To achieve that, the withdrawal treaty proposes that Northern Ireland should remain subject to the relevant EU rules and processes.  In turn, that means introducing or expanding various checks on goods travelling from Great Britain to Northern Ireland – albeit that the proposed deal seeks to minimise the burden and visibility of such additional controls.  

Inevitably: that prospect has attracted the fury of the DUP – who are ideologically fixated on the idea that Northern Ireland cannot be treated any differently from the rest of the UK.  Small matter that Northern Ireland is already and self-evidently treated very differently from the rest of the UK for all manner of regulatory and fiscal purposes.  And nor does it seem to count that Northern Irish businesses are actually being offered a very advantageous and indeed privileged relationship both within the UK and with the EU.  

To make matters even more complicated, the special treatment being proposed for Northern Ireland hasn’t just upset the DUP.  It has also caused serious concerns in Scotland.  The UK Government has tried to sweeten the pill of differential treatment for Northern Ireland, by providing a unilateral guarantee that Northern Irish businesses should have full and unfettered – but essentially one-way – access to the market in Great Britain.  Not only does that guarantee cut across the devolved competences of Scotland and Wales.  It also distorts the founding principles of the UK’s own nascent “internal market” by offering a significant competitive advantage to Northern Ireland which is not being offered to either Scotland or Wales or (indeed) any of the English regions.  

So: if the backstop proposals agreed in the withdrawal treaty have proven explosive – it’s not entirely without justification.

And there we have the proposed withdrawal treaty.  A lot of boring technical stuff, but also some crucial and controversial provisions.  

Let’s now say a few words about the political declaration on the principles that should govern subsequent negotiations about the potential future relationship between the EU and the UK.

The text we now have is largely in line with the guidelines adopted by the European Council back in March 2018.  An ambitious and wide-ranging partnership.  In some fields: based on international law and international standards.  In other fields: based on existing EU rules or existing EU models for relations with third countries.  In other fields still: seeking to go beyond those familiar templates and provide for a deeper level of cooperation or alignment.  

Otherwise: the political declaration is pretty sketchy.  There is very little detail.  Though nor could there be: these are matters for long, detailed and technical as well as sensitive and controversial, future negotiations.  A 26 page political declaration has to be converted into a 3,000 or 4,000 page legally binding treaty.  The two sides might never reach a satisfactory agreement at all or at least on certain issues.  And any significant deal they do manage to agree will eventually require the full endorsement not only of the UK but also of the European Parliament and the EU27 – including through their national parliaments, regional parliaments and possibly even by domestic referenda.  

For now, let’s just highlight a couple of interesting points about the political declaration, particularly in future relations concerning trade.  

Of course: it’s hardly a shock to see that the UK’s “cake and eat it” fantasy – of having “special treatment” in the form of privileged access to the Single Market, but without having to play by the same rules and obligations as the Member States themselves – has finally been killed off, in black and white, so that even the Government finds it pretty difficult to lie about it anymore.  

The “coup de grace” had to wait longest in the field of trade in goods, where the UK clung onto its “cake and eat it” fantasy most stubbornly.  Remember the cornerstone of the Government’s Chequers Plan?  It was the idea of creating a combined customs territory in which the UK would continue to apply and enforce all of the EU’s tariffs and regulatory policies, while simultaneously pursuing its own potentially divergent tariffs and regulatory policies, without the need for any form of customs checks or controls at the border between the two parties.  

Even though the EU27 and almost every informed commentator dismissed the entire idea as fantastical and unworkable, Theresa May still insisted, month after month, that it was the only deal the UK was putting on the table.  Well: the political declaration now confirms that that centrepiece of the Chequers Plan is dead and buried.  The declaration explicitly envisages a future system of border checks and controls between the EU and the UK as the price for the UK’s decision to leave the Single Market, the Customs Union and the Common Commercial Policy.  

But of course: from another perspective, that admission is also rather confusing!  As we’ve seen: the EU and the UK say they want to find with a better alternative to replace the UK-wide backstop for dealing with the Irish border problem as soon as possible.  But the alternative relationship described in the political declaration explicitly involves border checks and controls between the UK and the EU – which is hardly going to avoid a hard border between Northern Ireland and the Republic.  

So what’s going on?  Maybe the UK Government is thinking: as soon as the next general election is over, and they no longer need the votes of the DUP in the Commons, the EU and the UK can agree to scrap the UK-wide backstop and replace it with a Northern Ireland-only model – something the EU wanted right from the outset but which the UK couldn’t agree to because of the DUP.      

At the same time, however, the political declaration also suggests that any future relationship on trade in goods between the EU and the UK should build on the “backstop” plans for a customs union, as well as the extensive level playing field commitments, contained in the Irish Protocol.  So: it may well be that the “backstop” proves to be only the starting point for a much closer trade alignment by the UK to the EU than the Government is publicly willing to admit?  

Who knows.  Though the point is: there is no answer here.  In fact, the point is: that’s just one example of how vague this political declaration really is; and how little it really tells us about the future relationship between the EU and the UK.

It’s time for me to wrap up, so that we can move on to questions.  So what should we make of this proposed withdrawal package?

Of course: we need to be wary of simplistic, binary assessments about whether this is a “good deal” or a “bad deal”.  At the same time, Brexit is such a horror show that we also need to resist falling for the argument that anything which isn’t a complete catastrophe is somehow to be considered a “success”.

Instead, we should acknowledge that the proposed deal is the product both of certain political choices and of certain stark realities.  

The political choices started with the Cameron Government’s decision to call a referendum without any proper preparations for its potential consequences.  They continued with the May Government’s decision to endorse and pursue some of the very worst fantasies of the Leave campaign – such as the delusion that we could have our cake and eat it in relations with the EU; or that “Global Britain” is about to swan around redesigning relations with the rest of the world.  The 2017 general election was yet another pivotal political choice – not least because the Government’s subsequent parliamentary dependence on the DUP has offered the latter disproportionate influence, not only over the negotiations, but over this entire country’s very future.  

Those were all political choices.  Our politicians could have made very different choices.  Instead, this deal is partly the product of the decisions – the generally very bad decisions – they made.    

Yet this deal is also the product of certain stark and indeed inescapable realities – not least the reality of what it means for a medium sized country to engage in international negotiations with a global power bloc.  Let alone in a situation where the inherently weaker country is also utterly and hopelessly divided within itself; whereas the inevitably stronger power bloc has proven perhaps surprisingly but resolutely united.  To say nothing of a situation in which the UK is desperate for some sort of deal in order to avert inflicting immediate disaster upon itself, in the form of a “no deal Brexit”.

Against that background, the draft deal of course has certain merits.  It would avoid the short term chaos of a “no deal Brexit”.  It would prevent the return of a hard border and with it the political destabilisation of Northern Ireland.  However, those merits come at a significant cost – the “vassal state” of the transitional period and likely also of the backstop; further mistrust and alienation between London, Edinburgh and Cardiff; to say nothing of the ever more bitter divisions with the UK Government and Parliament.  

But just as importantly: nothing in the Government’s proposed deal will actually change the underlying fundamentals of the UK’s position.  

First, there is still no real clarity, and certainly no guarantees, about the longer term EU-UK relationship.  This is a “blindfold Brexit”.  And don’t forget: it’s only until relatively recently that Theresa May and David Davies and the rest of the Brexit Brigade were assuring us that the entire future relationship – in all its myriad fields, in all its mindboggling detail – would be ready for signature one nano-second after leaving on 29 March 2019.  What dishonest, incompetent fools.

Secondly, Brexit is still an act of profound, long term national diminishment – squandering our leadership within the EU and through it a significant part of our influence in the world.  

Let’s be clear: the world does not belong to medium sized countries.  Whether we like it or not, the rules of international relations – whether it be the economy, security or defence – are determined by regional and global power blocs.  And the EU was our regional and global power bloc.  Within it and through it, we defended and promoted our interests and those of our closest friends and allies.  Anyone who believes that the UK can replicate – let alone increase – that level of influence on its own is an ignorant and dangerous fool.  And yet, that’s exactly what the Leave campaigners within as well as outside Government claim.  

Thirdly, Brexit is still one of the largest and most far-reaching decisions, by any population in modern history, to disenfranchise itself from a vast range of rights and freedoms, protections and safeguards – not least against its own future governments.  

For millions of people now and into the future, our life choices and horizons have been positively and actively diminished: many of the freedoms and opportunities and protections and aspirations that I have taken for granted throughout my entire life will no longer be open to you, or to your children, or to your grandchildren.  

It’s easy to focus on the obvious things: the chance to study or work or retire across an entire continent; the right to free emergency healthcare while we’re on holiday in France or Spain.  But it’s the less obvious things that are actually more important: the guarantee of minimum rights for workers and consumers; the guarantee of minimum standards of environmental protection; the guarantee of basic standards of protection for public health.  

Fourthly, the draft deal does nothing to repair our damaged democracy or rebuild our fractured social cohesion.  

Let’s not mince words: the 2016 referendum and its aftermath have made a mockery of the UK as a mature and responsible democracy.  It’s not just that the systematic dishonesty, the deliberate scaremongering and the false promises of the Leave campaign were on a scale the like of which this country had not seen before in its modern political history.  Or even the mounting evidence that the 2016 Leave victory was assisted by its campaigners’ unlawful abuses, certainly of data protection legislation, and potentially also of the electoral funding rules.  It’s also the fact that their fantastical delusions have continue unabated and indeed in defiance of any contact with reality.  

A democracy shouldn’t really be driven by systematic dishonesty – indeed, it shouldn’t really actively encourage and reward liars and charlatans.  But let’s not kid ourselves: the politics of Brexit Britain has been dictated and is still being driven precisely by systematic dishonesty.  So I have about as much respect for the democratic credentials of Brexit as I do for the intellectual capacities of Donald Trump.  

Fifthly, Brexit remains a vast distraction, a vast waste of time and energy and money and resources – all of which are being poured – not into trying to improve our country and the lives of its people – but simply into trying to limit the self-inflicted damage of Brexit.  

Replacing regulatory regimes that already worked fine.  Replicating institutions that will just end up duplicating the work of bodies that already function perfectly well.  Finding new solutions to problems that had already been solved.  

But addressing inequality?  No time.  Alleviating poverty?  Too busy.  Promoting fair and equal opportunities?  Sorry – got other priorities.  We’re too busy worrying about how to replace the huge skills gaps in the NHS caused by the collapse in recruitment of EU doctors and nurses; or how to maintain a viable manufacturing and agricultural sector, faced with the imminent disruption of frictionless trade conditions.   

Last and yet very far from least: Brexit remains an inspiration for the forces of illiberal authoritarianism (for the Trumps, the Salvinis, the Bolsonaros and the Putins) who are on the march right across the Western world.

Some of you will have heard this before, but we can never say it often enough: for many of the leading Leave Campaigners, leaving the EU is not an end itself.  It is an opportunity to further their ulterior political objectives: dangerous, hard right dreams of some sort of political, economic, social and cultural revolution in the UK.  

Climate change denial.  The return of capital punishment.  Massive deregulation of the economy and society.  Goodbye hated employment and equality laws.  The final destruction of the welfare state and the dismantling of the NHS.  This is their once-in-a-generation chance to reshape British life – root and branch.  

But Brexit hasn’t just fuelled support for anti-rational, socially divisive, politically aggressive movements in this country but elsewhere too.  Across the world: Brexit has become an inspiration for nationalists and populists, charlatans and demagogues.  See what can happen when you lie big, when you play on people’s fears, when you offer up enemies rather than solutions?  You can win too!  

So whatever its limited merits, in the grand scheme of things, this deal really doesn’t deliver very much.  

Where does all of that lead us?  The reaction of hard core Leave campaigners has, of course, been entirely predictable.  This mess has nothing to do with them, or their pathological lies, or their bizarre delusions.  Not long ago, the UK “held all the cards” and this was going to be the “easiest deal in human history”?  Having lost out in the battle with reality, those lies now need to be replaced with a new one.  Brexit could have been so big, so bold, so brilliant, so beautiful.  But it is being ruined by the “Brussels bullies” and the “Remain traitors”.  Just another version of the “stabbed in the back” myth which has been the common currency of populist charlatans and demagogues across the ages.  

For their part, the less extreme Brexiteers may fantasise about “going back to the negotiating table” or even “back to the drawing board”.  But the fact is: most of the alternative choices and outcomes that may once have been available and possible have now been ruled out simply by lack of adequate time to pursue them.  It looks like we are indeed facing a choice between this deal; or no deal; or no Brexit.  I know which one I want.  

Thanks for your attention.  I’ll look forward to your questions.  


Professor Michael Dougan, Professor of European Law and Jean Monnet Chair in EU Law, University of Liverpool
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