The border between Northern Ireland and the Republic of Ireland. (Photo by Charles McQuillan/Getty Images)
Theresa May presented her Brexit deal to her cabinet on November 14, 2018 and to the House of Commons the next day. It consists of two documents, the "Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community" (585 pages) and the "Outline of the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland" (8 pages). The documents were released to the public only after the conclusion of that cabinet meeting.
The Problematic Protocol
The Members of Parliament hardly had time overnight to read the Draft Agreement in its entirety. Instead, they rushed to read the "Protocol on Ireland/Northern Ireland" because they knew that this had been the most controversial element in the negotiations between the United Kingdom and the European Union.
The Protocol recalls in its preamble that "the Withdrawal Agreement... does not aim at establishing a permanent future relationship between the Union and the United Kingdom" while noting that both parties recognize the need to maintain the "soft border" that exists between Northern Ireland, as an integral part of the United Kingdom, and the Irish Republic. Although it is hoped that that "permanent future relationship" will have been negotiated by the end of the "transition period" during which the United Kingdom completes its withdrawal from the EU, this may not happen. The aim of the Protocol, therefore, is to serve, if necessary, as a "backstop" arrangement to preserve the soft border even after the transition period while negotiations on the permanent future relationship are completed.
The mechanism of the Protocol is to define a certain kind of "customs union" between the United Kingdom and the European Union in lieu of a permanent relationship. Both Theresa May and her EU counterparts have expressed their firm belief that the Protocol will never need to be activated.
What Members of Parliament noted, however, was that the Protocol does not give the United Kingdom the right to withdraw unilaterally from the operation of the Protocol. Article 20 of the Protocol merely permits the United Kingdom to make a claim, sometime in the future, that the Protocol is no longer needed and to request that the EU agree to end the application of the Protocol. If the EU refuses, Article 20 permits the case to be taken to arbitration, which may rule against the United Kingdom. Thus the Protocol could go on forever and the United Kingdom would never escape from the grip of the EU.
Conservative Opposition to May
Although both Theresa May herself and probably a considerable majority of the Conservative MPs are prepared to risk that danger, two groups within the Conservative parliamentary faction do not agree with her. Moreover, the Conservatives are a few MPs short of a majority in the House of Commons and rely on the support of the Democratic Unionist Party of Northern Ireland (DUP), which is intensely suspicious of the Protocol. May's hope of nevertheless obtaining a majority for her Brexit deal in the Commons, which she is pursuing with impressive vigour, is surely in vain.
The one group styles itself the European Research Group (ERG). It claims some 60 MPs, most of whom are currently determined to vote against the deal. Conservative MP Jacob Rees-Mogg, leader of the ERG, has requested a vote of no-confidence in Theresa May, in a formal letter to the Conservative Party's parliamentary group. If 48 MPs (namely, 15% of the Conservative MPs) make such formal requests, an election for party leader must be called. May seems likely to win reelection, but the process would take some weeks as March 29 looms -- the date on which the United Kingdom is due to leave the Union and the transition period will begin. Reelection would also bring May no closer to getting her Brexit deal through the Commons.
The second group consists of five senior ministers who decided not to resign alongside others on November 15, but to stay on in the hope of persuading May to seek modification of the Protocol, although both she and her EU counterparts insist that it is too late to do so. The members of this "Gang of Five" are (in alphabetical order) Liam Fox, Michael Gove, Chris Grayling, Andrea Leadsom and Penny Mordaunt. If May is intransigent in refusing their request and they resign, her prospects of gaining a parliamentary majority for her Brexit deal -- or even surviving as leader of the Conservative Party -- will be all the slimmer.
The One-Sentence Solution
The problem is that neither the ERG nor the Gang of Five has explained what would persuade it to support the Brexit deal. The ERG is simply content that on March 29, 2019 the United Kingdom should leave the European Union and that trading relations should switch to World Trade Organization terms.
Overnight, therefore, all sorts of tariffs would be imposed on the vast number of individual goods, components and spare parts, etc., that currently flow in both directions tariff-free, while all means of transport and communications would themselves be disrupted, along with police and judicial cooperation, etc. In short, all those detailed issues would spring up which half of the Withdrawal Agreement is devoted to preventing. That is, the half of the text -- diligently and conscientiously compiled by experts -- that MPs did not have time to read before the Commons debate, There is no need to describe the disastrous impact on industry, agriculture, the 66 million population of the United Kingdom and a larger number of residents of the EU; others have already eloquently spelled it out.
As for the Gang of Five, they are reported to be demanding "a unilateral exit mechanism from the so-called 'backstop' arrangement over Northern Ireland," but they have not specified what form that would take. But it would doubtless be, like Article 20 of the Protocol, a procedure in which the United Kingdom would have to submit an application and negotiate the timetable of its implementation. In short, a tedious process, however assured its outcome.
What is needed is rather not "a unilateral exit mechanism" but a "self-termination mechanism" -- an automatic expiry date. We have carefully studied the terminology of the Protocol and the whole Withdrawal Agreement and discovered that the addition of a single sentence to the Protocol would suffice.
Article 20 of the Protocol on Ireland/Northern Ireland should be supplemented by a sentence of the form:
"If not earlier, this Protocol shall cease to apply [x] years after the end of the transition period unless both the Union and the United Kingdom agree to extent its application in whole or in part."
Here "[x]" should be a number (of years) that is sufficiently large to convict the European Union of bad faith if it refuses to countenance such a sentence, but sufficiently small not to be absurd. We think that "three" would be a suitable number of years, but even "five" would establish the principle that the United Kingdom must have a guaranteed prospect of liberty.
By refusing to permit that modification to the Protocol, the EU's negotiators would demonstrate that they do intend to submit the United Kingdom to indefinite captivity. Repudiation of the deal in the UK would be justly overwhelming. If the EU accepts the sentence, the biggest obstacle to obtaining a majority in the Commons for the Brexit deal would be removed. Even many ERG members, as well as the DUP, might reconsider their intention to vote against the deal. The prospect of an election for leader of the Conservative Party would likely vanish.
Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.