Why Parliament Should Pass Boris Johnson’s Withdrawal Agreement
21 October 2019
Ideally, after the 2016 referendum, Britain would have been led by a confident, ambitious government determined to seize the opportunities offered by leaving the EU and transform how Britain is governed. In fact, that was very far from the case. While the political establishment as a whole has become wedded to European integration over the last 30 years, the conservative Eurosceptics who won the referendum had no political coherence and no real plan of what to do next. They dropped the ball immediately after their victory, and it was picked up by a cautious Remainer, who tried to keep Britain closely tied to the EU. Meanwhile the Remainer opposition opposed anything that changed the status quo. Accordingly, Britain has found it immensely difficult to reassert its sovereignty and actually leave the EU (see Analysis #9 - Why is Brexit Proving so Hard to Implement?).
Under these miserable political circumstances, Boris Johnson’s Withdrawal Agreement (WA), however imperfect, is probably the best that can be hoped for; indeed, it is remarkable we have even come this far. The WA claws back considerably more autonomy for Great Britain (although not for Northern Ireland), achieves more of a clean break from EU structures, and enables our political future to be determined more by our own democratic political struggles. Parliament should pass it, but many MPs’ continued reluctance to accept the referendum result means that continued stalemate and even a second referendum are equally likely.
Plus ça change…
Johnson’s achievement of substantial changes to May’s WA – something that many Remainers dismissed as impossible – shows a small glimpse of what might have been achieved had Britain experienced real political leadership after June 2016. That said, Johnson’s WA largely duplicates May’s.
It retains the implementation/ transition period, ending on 31 December 2020, during which the UK will remain subject to all EU laws without having any say over them, and the UK and EU will negotiate their future trading relationship. The implementation period can only be extended by two years, by mutual agreement. Others might prefer a quicker break, fearing the EU might exploit the opportunity to pass laws damaging the UK – but this seems rather far-fetched. The British state’s shambolic preparations for Brexit – expressing the underlying political malaise – demonstrates the practical necessity of this period.
The UK will have to pay into the EU budget to reflect its continued quasi-membership – the so-called “divorce bill” – often estimated at roughly £39bn. Others claim that this payment is not legally binding. But these are commitments already made to the EU and we cannot achieve a WA without it. Particularly for a monetarily sovereign, currency-issuing state like the UK, £39bn is a price worth paying for the restoration of political sovereignty.
Freedom of movement of labour will continue during the implementation period. At its conclusion, EU citizens still living in the UK will acquire permanent residency or new residency status. The European Court of Justice (ECJ) will retain power to adjudicate in any disputes surrounding this, and for a very long period. Again, this is not ideal. Chris Bickerton and Peter Ramsay have argued that the UK should offer all EU nationals resident here immediate citizenship, giving them full certainty and subjecting them exclusively to the authority of British courts (see Proposal #1 - Give EU Nationals Resident in Britain Full British Citizenship). But the UK has still not taken this route – a failure of imagination and generosity symptomatic of our lacklustre political leadership. The arrangement in the WA could, perhaps, be exploited in future by mendacious QCs – there are plenty to go around – but, again, in the absence of any political alternative, this is something the UK will have to wear as the price of Brexit. It will still be open to British governments to offer EU citizens British citizenship.
There are two key changes to May’s deal in the new WA. The first, and most remarked upon, is the transformation of the Irish backstop. Leaving the EU, allowing the UK to establish independent market rules and customs arrangements, means that the border between Northern Ireland and the Republic of Ireland would become a standard international border between two different markets, requiring customs and regulatory checks. However, the British state’s weak political sovereignty in Northern Ireland means that the UK government has been unwilling to reassert its legal sovereignty by managing the border in this way; it has accepted – at the insistence of Dublin and Brussels – that no “hard border” must emerge in Ireland.
Theresa May addressed this problem through a UK-wide “backstop”. She hoped Britain and the EU could negotiate a way to manage the Irish border as part of their future relationship. But, if that failed, the “backstop” provisions would kick in. The whole UK would remain aligned to EU rules governing goods, including commercial policy and business taxes, environmental and social regulations, state aid and competition, and so on. Northern Ireland would remain part of the EU’s customs territory, retaining “full alignment” with a wider host of EU regulations, policed by the ECJ. These backstop arrangements could only be terminated with the EU’s approval, raising the spectre of the UK being locked into the EU’s orbit in perpetuity, forced to follow EU rules while having no say over them. For this reason, I opposed May’s deal in 2018.
Johnson’s amended WA replaces the whole-UK backstop with a new arrangement that applies only to Northern Ireland, and which is activated immediately after the implementation period. It is no longer called a “backstop”, a fallback to failed negotiations: it is, in practice, envisaged as a permanent arrangement. This was offered by the EU in early 2018, which explains their readiness to compromise. Johnson’s deal effectively cedes regulatory sovereignty over Northern Ireland to the EU. The province will apply EU customs and regulatory rules, entailing checks on trade between Northern Ireland and the rest of the UK. The members of the Northern Ireland Assembly must consent to these provisions by simple majority voting four years after the implementation period and every four years thereafter, or every eight years if endorsed on a cross-community basis. If the Assembly members refuse, the regulations will be terminated two years later.
There is no doubt that this arrangement weakens the Union, sparking outrage from the Democratic Unionists Party (and their friends in Labour Leave). But it is equally clear that this is the only practical alternative to May’s backstop in light of the political realities. The British government’s unwillingness to exercise full sovereignty in Northern Ireland, so as to produce the feared “hard border”, is clearly not something that it can overcome. As Peter Ramsay reminds us, it is rooted in hundreds of years of violent, contested colonial rule in Ireland and a failure to win the consent for British rule of a large part of the population even in the gerrymandered rump of the Six Counties (see Analysis #40 - The Flaw in the Crown: Why Popular Sovereignty in Britain Means Reunification in Ireland). This weak political sovereignty makes the British government unwilling to restore border controls normal to sovereign states, for fear of enflaming communal unrest. This unwillingness is simply incompatible with Brexit, however, which directly entails the reassertion of sovereign borders.
The truth is that the British state can only exercise effective political sovereignty over Great Britain. In Northern Ireland, its political sovereignty is too weak. Partially ceding sovereignty over the Six Counties in perpetuity to the EU is a recognition of that fact. The alternative is to insist on no customs checks down the Irish Sea, which would entail the UK-wide backstop, preventing the restoration of sovereignty of the British people as a whole. Given its weak political sovereignty there, Northern Ireland is the price the British state must pay to restore sovereignty in Great Britain.
This is obviously a raw deal for people in Northern Ireland, who will remain locked in the sub-sovereign limbo created by these special arrangements and the Good Friday Agreement, in which neither the Republic, nor Britain, nor the EU, is willing to take ultimate responsibility for the government of the province, resulting in institutionalised sectarianism and dysfunctional governance. However, to reiterate, Britain is clearly unwilling to assert full sovereign authority in Ireland, so this will not change on the British side. In the long run, change must come from Northern Ireland itself, in the form of a border poll for reunification (see Analysis #40 - The Flaw in the Crown).
Goodbye to the “Level Playing Field”… For Now
The second major change in Johnson’s WA is that “level playing field” provisions have moved from the legally-binding WA to the nonbinding Political Declaration (PD). May’s WA committed the UK to respecting EU standards on competition and state aid, on the one hand, and environmental, labour and consumer protection on the other. Now this alignment is merely something aspirational, to be worked out through talks on the future relationship.
This is the reason Labour has given for opposing Johnson’s WA: that it weakens workers’ rights and environmental and consumer protections. There are three glaring problems with Labour’s response.
First, Labour did not support May’s deal, despite the fact that it did entrench these protections. This reveals that their primary concern is not workers’ rights but halting Brexit (see Analysis #17 - Labour Stands Exposed on Brexit).
Second, it reveals Labour’s weakness and defeatism. Shadow Brexit Secretary Keir Starmer tweeted that the WA “gives Johnson license to slash workers’ rights” and therefore “paves the way for a decade of deregulation”. But the WA does not give Johnson anything; it only restores the power of parliament to regulate the British economy. If Labour won a majority, it would be free to enhance these regulations, to make them the toughest in the world if they want to (and, indeed, UK labour standards already exceed (and pre-date) EU minimums in most areas – see Analysis #13 - The Chimera of Workers’ Rights in the EU). The only way in which the WA paves the way for a “decade of deregulation” is if the Labour Party fails to win two general elections. Starmer, and every other supposed leftist making this argument, are therefore anticipating that Labour will be out of power from 2010 to 2027.
Given such pathetic defeatism, it is unsurprising that Labour clings fearfully to the threadbare protections offered by EU regulations. This ultimately expresses the legacy of the defeat of the labour movement in the 1980s, leading Labour and the trade unions to throw their lot in with the EU (see Analysis #7 - Why Does the British Left Love the EU?). Yet this reliance on a transnational neoliberal constitutional order to protect workers’ rights has, in practice, only seen organised labour’s strength dwindle even further. Labour in government (1997-2010) repealed not a single Thatcher-era union law, while trade union membership and industrial action have steadily declined.
It bears emphasising just how fearful and weak the Labour Party has to be to believe that it cannot halt the erosion of protections for workers, consumers and the environment. Nearly every working-age voter in Britain is a worker or retired worker; we are all consumers; and we all inhabit the same environment. This should not be a hard sell. It should be entirely possible to assemble substantial democratic majorities behind the maintenance and enhancement of these protections. That Labour lacks the political imagination and verve required to do so is a problem of the party itself, not a problem with Brexit.
Moreover, contrary to the fearful rhetoric, there is no substantial public appetite for a supposed Tory agenda of turning Britain into “Singapore-upon-Thames”. Just as Labour has failed to build support behind any positive vision of a post-Brexit future, so, too, have the Tories. Just four percent of the public favour rolling back the state, while 60 percent favour higher taxes and spending. Corbyn’s renationalisation policies are widely popular, even among Tory voters. Far from crusading on deregulation, the Conservatives have been forced to respond to the rise of the Brexit Party by adopting “people’s priorities” that include ending austerity, increased health and education spending, and infrastructure investment. May’s appeals to the “just-about-managing” and Johnson’s pledge to enhance workers’ rights after Brexit (however nonbinding) clearly show the direction of travel. To survive and thrive in this new political context, the Tories are being pushed towards more state intervention, not less. That Labour cannot see this reflects its incapacity for reasoned political analysis and, ultimately, its dim view of the electorate, who are implicitly assumed to be too foolish to vote in their own best interests, requiring transnational regulation instead.
The third weakness is Labour’s failure to recognise that the WA not only reopens questions of workers’ rights and so on, but also competition and state aid policy. May’s WA sought to hardwire the EU’s neoliberal restrictions on state intervention into a binding international treaty. Johnson’s deal removes that lock. This is crucial insofar as many left critics of the EU have rightly argued that these restrictions effectively outlaw socialism, making meaningful industrial policy and renationalisation illegal (see Proposal #2 - Quit the Single Market; Analysis #15 - Is No Deal the Only Socialist Option?). Johnson’s WA therefore offers a route to the radical changes allegedly sought by Corbyn’s Labour Party, in a way that May’s deal did not.
Johnson’s WA clears away many of the self-imposed fetters on British politics generated by EU membership. Yes, it raises the prospect of deregulation and freedom to pursue a “Singapore-upon-Thames” economic vision; but it also raises the prospect of tougher regulation, and of freedom to pursue socialist transformation. In essence it entails nothing more than the restoration of normal democratic contestation over the future of Great Britain’s society and economy. This is what The Full Brexit contributors have always argued Brexit should achieve (see Analysis #2 - Popular Sovereignty and “Taking Back Control”: What it Means and Why it Matters). They have generally avoided the term “Lexit” because, given the incredibly degraded state of the British left, simply quitting the EU was never going to bring about socialism overnight. At best, Brexit can restore the necessary conditions for socialist politics: unfettered democratic decision-making, with political representatives made accountable once again to their electors, rather than their peers in other European countries via EU mechanisms. Johnson’s WA largely does that. But radical transformation in a socialist direction will still depend on the Left stepping up to exploit this opening. Labour’s crabbed and fearful response to the deal does not augur well.
Were Johnson’s WA to pass, the focus of contestation would shift to the future relationship with the EU. Indeed, it is telling that Brexit Party supporters’ criticisms of the deal almost all pertain to the PD on the future relationship, which they claim is “selling out” Britain to the EU, making “no deal” preferable. There is more than a whiff of desperation here as The Brexit Party struggles to articulate why its voters should not shift to the Conservatives. But there is a deeper problem here, which again exposes the Brexit Party as a symptom of our political malaise, not any resolution to it (see Analysis #27 - The Brexit Party: Creature of the Void). Unlike the WA, the PD is not legally binding. It is merely aspirational. It is no more certain that Britain definitely will trade off UK fishing grounds, say, than it is that Britain definitely will slash workers’ rights. It depends entirely upon what we allow the government to do next – i.e. it turns on post-exit democratic contestation. The Brexit Party’s failure to recognise this is the mirror image of the Labour Party’s own misrecognition. Both are symptomatic of the defeatist outlook of victimhood: that either Big Bad Boris Johnson or the Big Bad EU (or both) will do nasty things to us after we leave the EU. Lacking is any sense of their own agency.
To be clear, Johnson probably will try to do things that many on the left and right might dislike. Modern free trade agreements (FTAs) are not really about tariffs and quotas; they are about promoting regulatory harmonisation that dismantle “behind the border” barriers to trade, facilitating deeper market access. Moreover, these agreements are routinely negotiated in secret, by technocrats, then presented as a fait accompli – much like the Canada-EU FTA, the (failed) Transatlantic Trade and Investment Partnership (TTIP), and, of course, the two WAs themselves. There is a real possibility that a UK-EU FTA could simply port across much of the existing regulatory alignment, effectively neutralising the prospects for meaningful change. Equally, this porting could be selective, resulting, for example, in the retention of state aid restrictions but not, say, labour protections.
Crucially, however, the only answer to this is for all political parties to politicise these questions, promote an alternative vision for Britain’s society and economy, and campaign for external partnerships that support, rather than inhibit, the realisation of that vision. A failure to do this will result in the limpid, vacuous project of “global Britain” winning out – not through the strength of its vision or depth of its support, both of which are actually shallow, but merely through default.
Groundhog Day in Parliament
However, for this to happen, the WA must first clear parliament. And, in the wake of the House of Commons vote on Saturday, that still looks uncertain. The Letwin Amendment, which withheld approval of the WA until Johnson requested a further extension of Article 50, was yet another sign of parliament’s reluctance to accept the instruction given by the electorate in 2016.
The amendment’s ostensible rationale was that, since the enabling legislation for the deal will take some time to pass, there is a risk the process will not conclude before the latest Article 50 deadline on 31 October, leading to an accidental “no deal” Brexit. This signals both a real problem and an unreal one.
The real problem is that major constitutional changes certainly should not be rammed through parliament in a matter of days without proper scrutiny. In an ideal world, parliament would be given adequate time to perform its proper role of holding the executive to account, amending and improving legislation, but from a baseline that accepts the democratically binding character of the 2016 referendum result. However, because many, if not most, MPs fundamentally reject the latter, they clearly cannot be trusted to perform these duties. Repeatedly violating the constitutional norms that they claim to be defending, they have exploited every possible opportunity to frustrate and delay Brexit. Any further extension would be used for this purpose. MPs are already plotting to amend the enabling legislation to fundamentally alter the terms of the WA, or add on a second referendum. Their refusal to accept a democratic instruction from the electorate – one they specifically asked for, and that 85 percent of MPs elected in 2017 pledged to respect – means that they cannot perform their proper constitutional duties. This self-destruction of parliament’s authority is deeply unhealthy for representative democracy (see Analysis #18 - British Politics in Chaos: Brexit and the Crisis of Representative Democracy).
The Letwin Amendment also appears to be based on the unreal proposition that Boris Johnson actively prefers no deal to his WA, such that, if parliament dragged its feet, he would force Britain out on 31 October, rather than requesting a short “technical extension”. But despite Johnson’s bluster, it seems clear that he does not actually want a no deal exit: he is not that radical. He prefers a deal, as shown by his eventual support for May’s WA at its final reading, and his efforts to amend the WA. The idea that on 31 October he would suddenly tear up the one significant achievement of his government so far is fanciful. His “deal or no deal”, “do or die” rhetoric has been about putting pressure on the EU to achieve concessions, and on parliament to pass a deal. Even if there were a snap election and Johnson won a large majority, he would seek to push his deal through, rather than opting for no deal.
As it stands, however, it is hard to see any way out of the vicious cycle of politics defined by a Leave government with a minority in a Remain parliament. It is just about possible that, when re-presented to parliament again on Tuesday, the deal could squeak through with a small majority. However, it is just as likely that Remainers again try to amend the legislation to hobble Brexit. If the EU only grants a short extension, they could also try to force the government to request a longer one – and the EU will always be reluctant to refuse since it does not want the blame for any “no deal” withdrawal.
The only way to exit this cycle is a general election. However, the polls show that the divided Remainer parties would likely lose seats and, unless the Brexit Party were to divide the Leave vote, Johnson could win a substantial majority. Accordingly, Remainer MPs are reluctant to allow Johnson the “people vs parliament” election that their behaviour has otherwise done so much to help foment. The current situation gives them leverage and power that would be destroyed upon contact with the electorate.
If this stalemate persists, it becomes increasingly likely that the only way to get the WA through parliament is for the government to accept a second referendum. Indeed, Labour has explicitly raised the possibility of backing Johnson’s WA on this condition, and opposition MPs will seek to amend legislation to impose this outcome, which the government is still resisting. If they succeed, this would, ultimately, reflect the underlying political situation, wherein much of the political establishment still does not accept the binding character of the 2016 referendum. As this has barely changed since 2016, I have always felt that this outcome was the likeliest one, even if the specific route to it has twisted and turned unexpectedly. If it does come to pass, the potential democratic gains of the WA will be replaced by a referendum that puts democracy itself up for debate (see Proposal #5 - Do Not Hold a Second Referendum). That is an outcome that every democrat, Leaver or Remainer, must resist.
 The full text of the WA and Political Declaration is here. The most authoritative summary is John Curtice et al. “The October 2019 EU UK Withdrawal Agreement”, House of Commons Library, 18 October 2019. Shorter useful summaries/ commentaries include Jill Rutter, “Johnson’s big deal”, UK in a Changing Europe, 17 October 2019; Simon Usherwood, “Boris Johnson’s Brexit deal: what’s in it and how is it different to Theresa May’s version?”, UK in a Changing Europe, 17 October 2019; and Martin Howe, “This flawed deal is a tolerable price to pay for our freedom”, Briefings for Brexit, 18 October 2019.
About the author
Dr Lee Jones is Reader in International Politics at Queen Mary University of London and a co-founder of The Full Brexit.
For a German translation of this article, please click here.
This work represents the views of the authors only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.