Why Theresa May is right about Brexit

The idea that we could now go back to the EU and negotiate something better is unrealistic. We have achieved an extraordinary negotiating result. This is not a matter about which party politics should be engaged. It is objective, neutral fact.

By Matthew Parish

Having practised international law for the past twenty years, one of the things I learned is that in assessing the quality of an international treaty you have to read it. The draft Agreement on the withdrawal of the United Kingdom from the European Union is 585 pages long. The reason it is so long is because the European Union and its associated institutions are extremely complex. It is not always widely understood that EU institutions affect virtually every aspect of our lives, from regulating medicines and foods to prescribing the way we may trade with other countries to taxation (VAT is a concept of EU law) to immigration: and a seamless spectrum of issues beyond.

We cannot just walk away from all of those rules, or the United Kingdom would fall apart: immediately. Therefore let us forget talk of a “no-deal BREXIT”. Such a concept makes no sense to the British national interest, because as a nation we cannot permit ourselves to implode. Hence we should stop talking about “hard BREXIT” versus “soft BREXIT”: it is, and always was, a distinction without substance. Instead the terms of the United Kingdom’s exit from the EU have to be negotiated, subject by subject and in each case in substantial detail. That is what the UK’s fine British negotiating team has done in their negotiations with the European Commission over the past nineteen months.

I say the negotiating team was fine, because I have read the agreement they have reached and in my view it is of extremely high quality. This document was not prepared by partisan politicians. It was prepared by international lawyers working in the United Kingdom’s impartial civil service. Negotiating its terms required intimate knowledge of all aspects of EU law that the UK was negotiating to separate itself from in an intelligent way that does not damage the interests of the United Kingdom. This agreement should not be treated as a component in a game of partisan politics. It is a densely negotiated legal document that is the result of hundreds of subtle compromises. If it were to be renegotiated then that process would have to take place from scratch, and it is not obvious what instructions one would give the civil service negotiators to do things differently. Hence the outcome would surely be much the same. This is why there can be no different BREXIT deal.

The premises of the agreement, in pursuit of the British national interest, are as follows. The referendum result must be respected, and by this agreement it is. The United Kingdom will no longer be a member of the European Union. Nevertheless the United Kingdom will stay, at least for the foreseeable future, in the EU common customs zone. That is because if the United Kingdom left the common customs zone then trade tariffs would immediately be imposed upon British goods being sold into EU countries. Given that the European Union is by far the most substantial trading partner of the United Kingdom, this would cause the British economy extremely serious damage. Obviously this cannot be allowed to happen.

Thirdly, the United Kingdom takes back control of its immigration procedures. The agreement provides for that. Fourthly the agreement does not entail the imposition of a so-called “hard border” between Northern Ireland and the Republic of Ireland, such as would be required if the United Kingdom were immediately to leave the common customs zone. This is important because the erection of such a border would likely fatally undermine the Good Friday Agreement bringing peace to Northern Ireland.

These matters aside, the intent of the agreement is that life goes on as normal for people living in the United Kingdom. There will be no mass expulsions of foreign workers, which would be inhumane and contrary to our values. There will be no damage to British industry through the overnight erection of trade tariffs. Our system of value added tax will not be torn up overnight, leaving a hole in the public budget that would compromise public services. The system of regulating our medicines and foodstuffs so that they are safe for human consumption will not be ruined. Life will continue as normal, so that individuals and businesses may prosper. There is no ideological angle to these components of the agreement. It is pure common sense.

It is possible, that with time, the British economy reorientates itself dramatically so that the European Union is no longer the principal destination for the sale of British goods. This is unlikely, because economics predicts that countries sell goods to other countries that are closest to them geographically (not culturally). Nevertheless if the United Kingdom bucks this economic trend in the future then it may make sense at that point to leave the EU’s common customs zone and negotiate similar arrangements with other countries. The withdrawal agreement provides for that possibility as well. In other words, the negotiators made sure that the United Kingdom can be flexible in the face of its future.

Finally, the notion that our negotiating team did not reach a good deal is belied by the fact that the drafting has clearly been undertaken predominantly by British civil servants, not by those working for the European Commission. That much is clear from the drafting style. In other words, the United Kingdom had dominant custody of the negotiating process. The idea that we could now go back to the EU and negotiate something better is unrealistic. We have achieved an extraordinary negotiating result. This is not a matter about which party politics should be engaged. It is objective, neutral fact.

Matthew Parish is an international lawyer and a fellow with the Swiss think tank CHPM. He formerly worked for the European Court of Justice in Luxembourg. He is a British candidate to be an Under Secretary General of the United Nations.

The views expressed in this piece do not necessarily reflect those of TransConflict.

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