In case anybody was in any doubt that the United Kingdom is headed in a rather different direction to the one preferred by Nigel Farage, Boris Johnson and their Brexit fellow-travellers of the Daily Mail and Daily Express, this article translated from El País of the 8th December offers an impartial opinion
The agreement in principle reached in the early morning of this Friday by Jean-Claude Juncker and Theresa May represents an unequivocal surrender of the United Kingdom to all the conditions imposed by the Europeans on all the three main issues: the rights of residents; the border between Ulster and Ireland and the financial bill. It is a surrender that points towards a future agreement on a Brexit that is no longer soft, but positively mushy.
The only concession or sweetener offered by the Europeans is in respect to the (obvious) references to the autonomy of the British institutions inserted in the joint report of the negotiators, pending the approval of the European summit on the 14th of this month.
There is no room for the slightest doubt that the EU has achieved 100% of its goals, at least for the moment. It has imposed his negotiation calendar without opposition; it has established – with protests from the other party drowned – the program for it in two successive phases: first the three key issues and only after an agreement on these, the discussion on the final status. The EU took the initiative in the half-dozen bilateral sessions and has achieved all of its aims.
All this has been possible thanks to the domestic weakness of the May Government, and to the initial error of the British negotiator, David Davis, in trying to divide the ex-partners, instead of trying to forge unanimity in favour of his proposals. The professionalism of the negotiator of the EU, Michel Barnier, was also important: he first asked the British what they wanted, specifically to make it easier to unite the European bloc. The result has been that the withdrawal of the United Kingdom has united its opponents as never before, thanks to the UK’s obsession with defending itself against the outside (peaceful) enemy. Even the very problematic Holland, which now sees Britain for the first time as a competitor: even the ultra-liberal ultra-conservatives of the East and the Baltic, in need of economic support from the EU and disillusioned by the escape of a military power that has helped shield them against the Russian danger, have united behind the European position.
The most spectacular defeat of a hard Brexit is seen in the agreement in principle on the question of Ireland. At last, the impossible squaring of the circle of minimizing the Ulster border with European Ireland (which had assumed a paradoxical virtual frontier, with effective free circulation), but simultaneously keeping it attached to the British market (which would imply its double participation in two different economic spaces, like playing for two rival sports teams at the same time) has been entwined with the idea that the circle remains such, without squaring it. How? With the principle that if both markets (the European and the British) turn out to be incompatible in the end, “the United Kingdom will maintain its full alignment with the rules of the Internal Market and the Customs Union” (point 49). So in the end, it would seem to be very like Norway. It would be de facto in the single market but without being involved in deciding its rules. We emphasize that this “full alignment” replaced the idea of “regulatory convergence”, an expression that makes London uncomfortable because it gave the idea that it should always reach towards Europe; the British preferred the coldest substantive “alignment”, which could be interpreted as parallelism and the effort of both to harmonize, which sounds more palatable to its deceived public. But in the end, the United Kingdom will be obliged to “maintain full alignment.”
Everything else follows a similar pattern. Particularly noticeable is the chapter on the recognition of citizens living in the other area. The civic rights of Europeans residing in the United Kingdom on D-day of segregation will continue to be protected by all the directives of the Union: to reside, to attract their families, their stable partners, all as they are today. They will also enjoy access to social rights: to the European health charter (point 9), to the principle of “equal treatment” in “social security, social assistance, health, employment, self-employment, establishment, education – including university -, and training, social, and tax advantages.” Suddenly the social Europe – which so many dismiss as non-existent – emerges strongly, although somewhat constrained.
How will that be guaranteed, beyond good intentions? London is committed to endowing the Withdrawal Act, which will include all the relative European norms without modification in a super-constitutional nature. Namely, this law will have the same exceptional characteristics that the Treaties and European directives and regulations show in the face of national ordinances: direct effect (it will be directly appealable) and primacy (in case of doubt the Withdrawal Law prevails, that is, the rules explicitly integrated into it (point 6) European lawyers – and their clients and all citizens – can shout with pleasure. This will be monitored by the Court of Justice of the European Union (CJEU) in its capacity as ” sole arbitrator” at least until D-Day. Then, the British courts must pay “due regard” to its “relevant decisions,” (point 38). Within this framework, local judges will be able to settle matters within their jurisdiction, but have the advantage, unlike the current government, of being very unbiased, and they will be given the possibility, should there be any doubts, of going to the CJEU to formulate a “preliminary question,” a consultation that can currently be initiated by all EU bodies, from a local judge to the German Constitutional Court.
There remains the chapter concerning the financial settlement. There is almost nothing new under the sun. Despite all the colossal grandiose speeches since the referendum, London has not even achieved a suggestion, an adjective, a different idea. It will pay what it owes while it remains within the EU, and offers guarantees on a proportional part of all programs (or institutions) to which it still belongs (its acceptance of guarantees to certain “contingent” obligations arising from projects not yet initiated). Of counting and sounding money, nothing has been said. The essential thing is that the May Government accepted the methodology, the components and the time-scales proposed by Brussels: total bingo. Although this results in an amount to pay (for years) for London, equivalent to about 60,000 million Euros (according to Europeans) or close to 50,000 Euros (according to British sources), considerably more than the 20,000 suggested a couple of months ago. What have the separatists achieved in exchange for their surrender? The appearance of regaining sovereignty.