Any rejection of the withdrawal agreement would have an impact on Gibraltar Between 'hard Brexit' and the second referendum


Following the European Council of 25 November 2018, which approved the draft withdrawal agreement and the political declaration on future relations between the European Union and the United Kingdom, the ratification stage began with the aim of avoiding a “hard Brexit,” i.e., a disorderly and non-agreement exit from the Union on 29 March 2019 at 11 p.m. (British time).

We are therefore at the moment when the withdrawal agreement based on Article 50 TEU must be ratified. This agreement includes, among others, two very important elements: the Protocol on Ireland (the famous backstop or guarantee mechanism) and a transitional period that fixes the relations between the Union and the United Kingdom until 31 December 2020.

In addition, the political declaration approved by the European Council sets out the basis on which, from the entry into force of the withdrawal treaty, the United Kingdom and the Union must negotiate with the aim of signing a treaty on future relations which would enter into force on the earliest possible date after the end of the transitional period.

The Protocol on Ireland represents the greatest source of uncertainty at the moment, and this is because, after the end of the transitional period, the border between Northern Ireland and the Republic of Ireland would be considered as an external border subject to WTO rules, which would entail the application of controls and tariffs on goods and, in turn, jeopardise the Good Friday peace agreements and allow, de facto, Northern Ireland to benefit from the European Customs Union by breaking the unity of the British market.

As we can see, this stage is characterised by an enormous uncertainty due, above all, to the difficulties encountered by May’s government in getting the House of Commons to ratify the withdrawal agreement. These difficulties stem both from the complex parliamentary process of ratification and from the political game itself, which is currently very dynamic.

Suffice it to note that, in early December, May passed a motion of censure and it should not be excluded the exploitation of any parliamentary stumbling block during the ratification process to cast doubt on her leadership. In December the situation was so critical that the Prime Minister decided to delay the vote on the withdrawal agreement, scheduled for 11 December 2018, until the third week of January 2019.

In the event of an affirmative vote in the House of Commons on 15 January – a difficult possibility today, as Labour, the SNP, the DUP and 51 Conservative MPs announced in December their opposition to what had been agreed in Brussels – the withdrawal agreement and its transitional protocol would enter into force after ratification by the European Parliament. In order to gain the support of the DUP unionists, May visited Chancellor Merkel, the Dutch Prime Minister and the European Council President Donald Tusk at the beginning of January in order to obtain a more precise definition of backstop.

In addition, the House could propose amendments to what was agreed in Brussels, in which case their compatibility with the withdrawal agreement should be assessed. Both in the event of incompatibility of these amendments and in the event that May loses the vote, the government would have 21 days to present a plan to unblock the situation that would be debated and voted on again in the Commons.

Here it is where several scenarios fit:

The first would be a “hard Brexit” which would come into effect on 29 March. In anticipation of non-ratification, the British government activated the necessary mechanisms to prepare a “hard Brexit” on 18 December. The Commission also did so on 20 December.

The second is for the UK to seek a renegotiation of the withdrawal agreement, which would focus mainly on the backstop and would need the reform of the “EU Withdrawal Act.” The European Council Conclusions of 13 December have already rejected this possibility. Furthermore, a renegotiation would require the extension of the deadline set out in Article 50 TEU (two years), after obtaining unanimity from the European Council, which is not yet clear to be granted. On the other hand, it is also not clear whether an extension of the deadline of Article 50 TEU beyond 2 July would imply the participation of the United Kingdom in the European elections.

If the European Council does not achieve such unanimity, we would once again be faced with the possibility of a “hard Brexit.” To avoid this, May could choose between calling general elections, pushing for a motion of confidence or urging a second referendum.

The convocation of elections would take place provided that the British government obtained the backing of two-thirds of the votes in the House of Commons. Such a call could also force the European Council to reconsider its refusal to extend the deadline of Article 50 TEU.

If the two-thirds majority in the House is not reached, the British government could once again opt for a “hard Brexit,” a new renegotiation, a vote of confidence or even a second referendum.

The fourth scenario would involve a vote of confidence presented at the initiative of the government or the opposition. If this motion is passed, May’s government would remain; but if it were not passed, there would be several possibilities: the continuity of a conservative government without May, the convocation of general elections or the continuity of a government under May but which would be obliged to develop a different policy from the one followed until now.

The fifth scenario, in case of a rejection of the withdrawal agreement by the House of Commons, would be the proposal of a second referendum, which could provoke the extension of the term of Article 50 TEU, since it would be necessary for the parliament to approve a special law for it. If the House did not approve this call, the government would again have several options at its disposal, such as the “hard Brexit,” the call for elections, the motion of confidence and renegotiation.

Today, May is trying to negotiate a twofold solution. The first possibility, already commented, is to make the Union specify the temporariness of the security mechanism to obtain the support of the unionists and thus provoke a later cascade of support among the conservatives and the moderate section of the Labour Party. The second one is to give up at the last minute some points concerning the political declaration on future relations.

In the case of Spain, and particularly Gibraltar, the rejection of the withdrawal agreement would mean the entry into force of the bilateral Memoranda signed between Spain and the United Kingdom on 29 November 2018, which address a series of agreements on citizens’ rights, tobacco and other products, and on cooperation in environmental matters and police and customs cooperation. And in the hypothetical case of a new renegotiation, the first Spanish challenge would be to consolidate and deepen the “acquis” achieved by the April 2017 European Council. “Consolidate” in the sense of defending the validity of what was said then and deepen through the inclusion, in the text of the future withdrawal agreement, of Spain’s right to keep the last word on Gibraltar in any negotiation between the United Kingdom and the EU that affects the Rock. This right should be extended indefinitely. In addition, steps should be taken to achieve co-sovereignty, as defended at the time by the Popular Party government.

And finally, we would like to pose the following question: how is it possible that the Republic of Ireland, with 4.8 million people, is able to include a Protocol in the withdrawal Treaty and Spain, with 46.6 million people, has not been able to include a reference to Gibraltar in that Treaty[1]?

[1] Eurostat data, 1 January 2018

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