A way out of the Brexit deadlock?

This article was first published in the Times of Malta

The Speaker in the UK Parliament has ruled out bringing Theresa May’s deal back for a third meaningful vote. Short of closing the current session of Parliament and starting a new one – and then actually winning the vote, the likelihood is that the deal is now dead.

The UK may now have no option but to request a long extension to the Article 50 process. The EU has, rightly, made it clear that any extension must have a clear purpose. Given where we are, what would have to happen for a long delay and attempts at renegotiation to have any purpose whatsoever?

Clearly a general election or a second referendum would be justifiable reasons for a long delay. But, assuming those two options remain off the table, and, again, who can possibly know, is there any clear purpose for a long delay?

As things stand today, probably not. Neither the UK nor the EU seemingly have any intention of moving away from their position on the Irish backstop – the ‘irreconcilable difference’ that drives many divorces. While that remains the case, no amount of delay will likely resolve the issue.

There is a reason why the Irish backstop is unresolvable in the current negotiation. Understanding that may yet provide a way forward in any new negotiations.

The origins of the current impasse can be traced to one action by the EU and the agreement to it by the UK: the decision to sequence the negotiations so that the Withdrawal Agreement was agreed first, and is legally binding, while the nature and shape of the future relationship was only to be the subject of a non-binding political declaration and then to be agreed later. This was a choice. There is no firm requirement in Article 50 of the Lisbon Treaty that prohibits simultaneous negotiations.

The net result of this sequencing has been the current impasse. The UK Parliament has not, so far, accepted a Withdrawal Agreement that leaves the future of the Irish border in question, somehow to be resolved later. It puts the UK in an impossible position and weakens its hand in second stage negotiations.

The framework of the negotiations remains the same as the one that has led us to the current impasse

That the EU insisted on such sequencing is understandable. It strengthened the EU’s negotiating position and weakened the UK’s leverage. Neither, I suspect, was it envisaged at the time just how intractable the Irish border question would become. After all, not only is the Irish question a peculiarly British/Irish question for which there is no parallel anywhere else in the EU, but this was the first time that Article 50 had been invoked. Nobody had any previous experience of how such a negotiation would evolve.

It is now time to recognise that no amount of delay will resolve this issue unless the sequencing is abandoned and the negotiations proceed to a single final agreement – withdrawal and future relationship – both legally binding.
Whether the EU27 would be prepared to abandon such sequencing remains to be seen. But without it, there is nowhere left to go absent a second referendum. Even then, it would be foolish to be complacent that a second vote will reverse the Brexit decision. And a UK general election might not resolve anything except for the removal of Mrs May to be replaced by who knows who – possibly someone worse, or much worse.

Granted, fusing the current sequencing and reaching a final comprehensive agreement may involve keeping the UK in the EU beyond the current budget cycle. This is a complication, but not an irresolvable one. It is preferable to a delay that turns out to be pointless because the framework of the negotiations remains the same as the one that has led us to the current impasse.


  1. Alexandra Wolff says

    Dear author,

    Allow me to clarify the legal position:

    Under Article 218 of the Treaty on the Functioning of the European Union (TFEU), the European Union can only negotiate and conclude Free Trade Agreements with third countries, while the UK is (still) a member state of the EU.

    Accordingly, Article 50 (2) of the Treaty on European Union (the provision which sets out the process for the exit negotiations), the European Union must first and foremost negotiate and conclude a withdrawal agreement with the UK, and can only take into account the framework of the future relationship between the European Union and the UK when doing so.

    At a practical level, it is worth mentioning that the conclusion of FTAs usually takes several years.

    Best regards


    • Joe Zammit-Lucia says

      Thanks Alexandra

      You are right of course about the third country thing. But this is a literal legalistic interpretation that the EU has taken as its starting point (quite reasonably given the previous circumstances). We have several examples in EU history – most recently during the Greek crisis – where things were interpreted with flexibility in spite of the literal reading of the treaties. This might also be possible here if there were the will.

      And you are right that FTAs usually take several years to resolve. But most FTAs are not starting from a position of total alignment in regulations between the negotiating countries. It seems to me that this very different starting point could make things quite a bit easier and might allow a long term relationship agreement to be concluded within two to three years.

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