When Brexit does not mean Brexit

Published in Newsroom Pro (Wellington), 20 November 2018

What Brexit is in the early 21st century, the Schleswig-Holstein Question was in the mid-19th century. That international calamity of dazzling complexity also gave one of the most memorable quotes in diplomatic history.

Lord Palmerston said: “The Schleswig-Holstein question is so complicated, only three men in Europe have ever understood it. One was Prince Albert, who is dead. The second was a German professor who became mad. I am the third and I have forgotten all about it.”

The draft withdrawal agreement between the United Kingdom and the European Union is similarly complicated. It would be surprising if more than three people could ever understand this 585-page agreement in all its details.

Still, the broad direction of this complicated document is easy enough to understand. Brush aside the legal jargon, the technicalities and the spin. Consider a few prominent articles of the agreement, and it’s clear why no self-respecting British government could consign their country to such a deal.

The first example is Article 7: “For the purposes of this Agreement, all references to Member States … shall be understood as including the United Kingdom … except as regards … the participation in the decision-making and governance of the bodies, offices and agencies of the Union.”

What we have is a divorce agreement that treats the two divorcees as if they were still a married couple. Article 7 is based on the premise that it is easier to include Britain among EU member states and draft the rest of the agreement accordingly. This is all legal, mind you. The political symbolism, however, is astounding.

Moving on, Article 131 lays out what will happen after Brexit Day on 29 March 2019 when the so-called transition period begins.

Not much will change between the UK and the EU during the transition: “During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law in relation to the United Kingdom and to natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.”

This is a case of “plus ça change, plus c’est la même chose” – the more things change, the more they stay the same. And it makes a mockery of UK Prime Minister Theresa May’s promise that “Brexit means Brexit”. In this initial period, Brexit means the UK remains locked in the EU and its customs union.

Now, of course May and her Government could argue this is just an interim period and that Brexit will eventually happen. But wait, there is an Article for that too.

Article 164 establishes a “Joint Committee” co-chaired by the EU and the UK. This committee will be “responsible for the implementation and application of this Agreement”. Everything in this agreement requires EU consent, including the transition period. Article 132 authorises extending this period indefinitely, leaving the UK no way of unilaterally pulling out.

Even so, should the EU allow the UK to leave one day far into the future, the UK would still be subject to decisions from the European Court of Justice. For an extra eight years, according to Article 158.

Brexit thus means staying in the EU until March 2019, to be followed by the purgatory transition period, which can be extended for eternity plus eight years. It is the EU’s version of the Eagles’ “Hotel California”: “You can check out any time you like. But you can never leave.”

All that would be bad enough, but it gets worse. While in its transition limbo, Britain is still bound by Article 6 to all EU laws – including laws made after the UK’s Brexit Day next year. The UK must also pay around £39 billion for the privilege of leaving the EU, although Articles 138–148 carefully obscure the precise amount.

The draft agreement abounds with similar horrific provisions for Britain. Stuck at the receiving end, Britain cannot do anything without the EU’s consent. It will be in a worse position than as a member because it will have no say in running its own affairs while forced to follow EU dictates.

Brexit is particularly bad for Northern Ireland, which is effectively separated from the United Kingdom. The agreement even specifies in Article 8 that references to Northern Ireland, for example, product labelling, “shall be indicated as “UK(NI)” or “United Kingdom (Northern Ireland)”. This new country UK(NI) will have more to do with Brussels and Dublin than with London.

In sum, the draft agreement does nothing to take the UK out of the EU stranglehold. It does not restore Britain’s ability to conduct its own trade policy. It does not even give it full control of its fishing grounds.

Worse, it removes Britain’s ability to make its own decisions, splits the United Kingdom into Great Britain and UK(NI), lets Britain pay for this privilege, and binds Britain into the EU’s current and future trade deals, whether it likes them or not.

This is not Brexit; this is Britain becoming an EU protectorate.

No matter what Britons voted for in the 2016 referendum, no-one can be happy with this outcome. If you are a Brexiteer, you might prefer to remain in the EU where, at least, you would still have a say. If you are a Remainer, you might prefer to leave the EU completely rather than experience the downsides of Brexit while accessing none of the potential upsides.

May is showing a remarkable resilience, soldiering on as a dead prime minister walking since her botched snap election.

But where steely resolve would have mattered, namely in dealings with Brussels, she has been a pushover leaving Britain to its worst crisis in more than half a century. She should leave 10 Downing Street and take this parody of a Brexit agreement with her.

Unlike the Schleswig-Holstein Question, the Brexit deal has the potential to drive everyone mad while never fading from anyone’s memory.

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