Author: Sophie Andrews-McCarroll
On Sunday, 25 November 2018, leaders of the 28 Member States met to discuss the Withdrawal Agreement, including the Protocol on Ireland and Northern Ireland, agreed by negotiators on 14 November 2018. The accompanying draft Political Declaration on the Future Relationship between the United Kingdom and the European Union was finalised on Friday, 23 November 2018 and was also discussed at the summit. The Agreement required and achieved the backing of a supermajority of leaders, amounting to at least 20 Member States and representing 65% of the population of the EU.
After just thirty minutes of discussion, Donald Tusk tweeted that the Council had endorsed both the Withdrawal Agreement and the Political Declaration on the Future Relationship. The formal Council Conclusions published shortly afterwards announced the endorsement. The second paragraph of the Conclusions restated the Union’s commitment to achieving the closest possible partnership with the UK. This was followed on Monday morning, 26 November 2018, by an official UK Government statement confirming that political agreement on the Withdrawal Agreement and Political Declaration had been reached in the Article 50 negotiations, and that the Government had laid them before UK Parliament for consideration. This allows time for their examination ahead of Parliamentary debate and vote of approval on the documents.
A last minute objection from Spain over the status of Gibraltar on Thursday, 22 November 2018 was resolved in advance of the Sunday summit, following a legal clarification by the UK confirming that Gibraltar would not necessarily be covered by future trade deals. Spain had threatened to vote against the Withdrawal Agreement until this clarification was received.
In the press conference, Jean Claude Junker, Michel Barnier and Donald Tusk stated that the current deal “is the only deal possible”. Other European leaders reiterated these comments. Taoiseach, Leo Varadkar, stated: “what we have here is the best deal that’s available for the United Kingdom and for the European Union”. German Chancellor, Angela Merkel, described the deal as “a diplomatic masterpiece”. It is the first time in the negotiations that the comments of European leaders echo those of Prime Minister Theresa May, who stated that the deal “[…] is the best possible deal. It’s the only possible deal.”
While the comments of European leaders aim to support Theresa May in her attempts to ratify the deal in her own Parliament, it is unclear as to how they might change in a no-deal scenario. There was no indication of how the EU might proceed, should the UK Parliament reject the deal. Donald Tusk warned against speculation on the matter and President Macron mirrored these comments, saying: “[it is] not up to me to speculate on the British vote.” Taoiseach Leo Varadkar confirmed that there had been a collective decision in the Council meeting not to discuss alternatives to the deal. From the EU perspective, it is clear that there is no more negotiating to be done on a European level, and the deal on the table is the final one.
The deal will now go before the UK Parliament for a “meaningful vote”, as outlined by the European Union (Withdrawal) Act 2018, which was adopted by the UK Parliament in June 2018. A motion must be passed to approve the bill before the Government can ratify the Withdrawal Agreement and pass legislation to implement it. This is likely to take place in the weeks of either 3 December 2018 or 10 December 2018. Taoiseach, Leo Varadkar, has urged Sinn Féin MPs to accept their seats in Westminster to support the deal, which will ensure no hard border on the island of Ireland, or consider resigning them, to allow Northern Irish constituents a say in the vote.
Assuming the vote passes in December 2018, the deal would then go before the European Parliament where it must be approved by a simple majority, including UK MEPs. In advance of this, the European Parliament Committee on Constitutional Affairs (AFCO) will provide a recommendation to plenary as to whether the Parliament should approve the deal. It is likely that the vote will take place sometime in February or March 2019. The President of the Parliament, Antonio Tajani, has stated that it will be “impossible to reopen the text” even if it is voted down in the UK Parliament. Neither the EP nor the UK Parliament have the power to amend the Agreement.
The Council of Ministers will then need to adopt the Withdrawal Agreement by a super-qualified majority, 20 Member States representing 65% of the population of the EU. The UK will not participate in this vote, as it does not partake in Council decisions regarding Brexit.
Should the Withdrawal Agreement be approved at all stages, Brexit will occur on 29 March 2019. After this, negotiations on the future relationship will commence, guided by the 26 page Political Declaration.
The Council approved the deal in good time for an orderly ratification process, taking care to emphasise that this was the only deal available to the UK – regardless of whether the UK Parliament approves or rejects it. Indeed, the consent of the UK Parliament is now the final hurdle, but clearing it will not be an easy task. This is especially true given the ideological divisions within the Conservative Party, the Labour Party’s stated opposition to the deal, and the potentially decisive power of the DUP, which has long voiced its opposition to the plan to maintain Northern Ireland in a state of regulatory alignment with the EU. If it is a Hobson’s choice between this deal and a cliff-edge Brexit, which would entail calamitous economic effects for Britain, Ireland and the EU, many MPs may be persuaded to vote in favour. However, the situation remains highly unpredictable, and the possibility of a ‘People’s Vote’ on the terms of withdrawal cannot at this point be discounted, however unlikely.