In early December UK Prime Minister Theresa May reached a “phase 1”, “significant progress” agreement with the European Commission, the agency responsible for negotiations on the EU side. Much of the media and most UK politicians, both pro- and anti-EU made much of the ambiguities and lack of clarity over key issues in the agreement. Along with the scepticism go ominous warnings that “phase 2”, involving trade negotiations, will prove considerably more difficult. Valid as the scepticism may be, it misses the most important aspects of what I shall call the December Agreement.
First, all important EU negotiations pass through a stage of ambiguity and lack of clarity prior to reaching definitive agreement. Media commentators frequently refer to this as “fudging” or “kicking the can down the road”. That misunderstands the reality of EU agreement-making. In practice, the procedural ambiguities are necessary for reaching a consensus among many governments.
As should have been expected, the heads of the 27 governments endorsed the “sufficient progress” decision at the European Council meeting on 15 December. By necessity unanimously and, after providing its endorsement, the gathering gave the Tory prime minister a round of applause as well as an apparently sincere compliment form Jean-Claude Juncker, Commission president. He described May as “tough, smart, polite and friendly”, attributes that come as a surprise to both her political allies and opponents at home.
Second, the agreement comes as very bad news to those of us who wish to see this increasingly reactionary Tory regime replaced by a Labour government. Perhaps second only in weight to her struggle in forming a coalition with the far right Democratic Unionist Party of Northern Ireland, the heavy criticism of May as Brexit negotiator over the last few months played a major part in generating her public image as a bubbling incompetent.
Basking in the praise of the overwhelmingly centre-right continental politicians, her EU problems have gone from an apparently fatal weakness to a source of strength. After a long string of opinion polls showing the Labour Party firmly or slightly in the lead, the Conservatives edged ahead in two voter surveys taken on 10 December. It is possible that attacks from within her own party will still undermine public confidence in the prime minister even so.
Third, and extremely discouraging for Remainers, it is highly likely that the December Agreement means no going back. Whether we like it or not the agreement means that Brexit negotiations are not merely “back on track”. It makes it highly probable that a definitive outcome will be reached, a “final agreement”. I regret that this final agreement will very likely occur within the two-year period set by the March 2017 legislation; formally known as the European Union (Notification of Withdrawal) Act.
Back in September I wrote that a combination of the EU treaty language and the political nature of Brexit negotiations made a recovery of Britain’s pre-referendum status a possibility, the “status quo ex-ante”. That possibility, which would allow Britain to maintain its country-specific agreements, would be immeasurably simpler than re-application for membership as required in Article 49 of the Lisbon Treaty (incorporated into the Treaty on European Union).
The official endorsement of the European Council of “sufficient progress” means that the political route for a return to the status quo ex-ante no longer exists. As Juncker put it: “It is now up to [the European Commission] to draft the withdrawal agreement with our British friends” (see video). To reinforce the reality of no way back, it appears that several EU governments oppose beginning trade discussions before Britain is “outside” (term used by the Swedish prime minister).
The voters of other countries have rejected EU treaties, lesser initiatives and/or joining the eurozone. However, in no country but Britain have voters explicitly rejected membership. Related to that, no government of an EU country has begun the Article 50 procedure for withdrawal. Thus, a Conservative government has taken three major and definitive steps towards leaving the Union: 1) purposefully scheduling a referendum in which voters rejected membership by a narrow margin; 2) unnecessarily introducing and getting approval for legislation of intent to withdraw under Article 50 terms (supported by the Labour Party); and 3) achieving agreement in the first phase of withdrawal negotiations.
In the convoluted and confusing Brexit process, the following seems as close as one can get to hard realities. First, no British government of any party will in the near future act to reverse Brexit. Let us hopefully suppose that against all probability a British government does so nevertheless.
That takes us to the second hard reality. As a result of the successive unprecedented withdrawal steps the likelihood that the remaining 27 EU governments would collectively accept British re-entry is not significantly different from zero.