As the UK stumbles through the ratification process for the Withdrawal Agreement, it’s worth bearing in mind that the EU is no stranger to treaty approval problems, writes Simon Usherwood (University of Surrey). He argues that the EU is extremely unlikely to give any concessions to the UK on the substance of the Agreement, even if Parliament rejects it. If a no-deal Brexit ensues, then the EU will focus its efforts on securing the same guarantees that it put into the Withdrawal Agreement itself. This does not bode well for any ratification problems in the coming months, he concludes.

One of the motivations for creating the EU’s precursors – the European Coal and Steel Community (ECSC) and European Economic Community (EEC) – was precisely that some states in Western Europe in the late 1940s and early 1950s looked very unlikely to agree to the kind of more integrative and supranational models that were felt to be needed by others. Since then, there have been a litany of cases where decisions have been reached in principle, texts signed and then problems encountered. But what does any of this tell us about Brexit?

The usual suspects

When we think about ratification problems, we most often think about the rejections by referendums in Denmark and Ireland of various treaties in the 1990s and 2000s. As Dermot Hodson and Imelda Maher note in their excellent book The Transformation of EU Treaty Making, these votes were part of a process of trying to build legitimacy into the process, albeit with complications. The Danish rejection of the Maastricht treaty in 1992, and the Irish ‘no’ votes to Nice and Lisbon in 1997 and 2001 respectively, suggest a ‘standard operating procedure’ (to use Hodson and Maher’s phrase): the relevant national government sought to pull together a national political declaration to clarify its understanding of assorted contentious provisions, before getting that approved at the EU level, thus opening the way for a second referendum. Importantly, in this procedure, the legal texts were not re-opened at all: the declarations sat around the text, noting the particular meaning that a state was giving to it. The logic here is two-fold. Firstly, everyone else has approved the text, but can’t use it until the last state has done so too, so creating some political space is in everyone’s interests. But secondly, that space isn’t the same as allowing a second bite of the cherry: the text is the text and no-one gets to change it.

Image by V1LL14N(CC BY 2.0).

Brexit is different

However, Brexit isn’t quite the same as these cases. The EU doesn’t have to conclude any agreement with the UK to continue functioning, so it’s not a matter of one-holding-back-many. And, crucially, the UK will shortly not be a member state, which removes a core incentive of the EU, namely the protection of members’ interests. So can we find other examples that might tell us something?

There’s nothing exactly like this current situation, but we might reflect on a couple of semi-similar instances. The first was the problem with ratification of the EU-Canada CETA deal in 2016. Here the Walloon parliament in Belgium blocked ratification, having gained a role by nature of the deal’s reach into the devolved competences of the region (something any future EU-UK deal will also do, coincidentally). Again, it took domestic efforts to find an internal political compromise, which then got uploaded as a declaration alongside the CETA treaty itself. In this, it was the same standard operating procedure as seen with the purely internal treaty revisions already discussed.

The second example is that of the European Defence Community (EDC) treaty in the early 1950s. The case is not so widely known (outside ‘history of the EU’ lectures in any case), but it bears some examination. Off the back of the success of the ECSC negotiations, the Six states decided to form another community centred on defence, following a big push on this from France. There were lots of contextual and organisational issues at play, but the treaty was signed and then ratified by all but one state: France itself. Despite being the country with most to gain from the EDC, French worries about sovereignty and West German rearmament eventually saw the Assemblée Nationale decide to not discuss ratification any more, effectively killing the treaty. However, the core motivation behind the plan – German re-armament within a multinational structure – still took place, via the enlargement of what became the Western European Union (WEU) and through German membership of NATO.

In this, there are some similarities to the final case we’ll consider, the Constitutional Treaty process in the 2000s. Here the ‘no’ votes in the Netherlands and France in 2005 saw the Constitutional Treaty encountering enough opposition to be stopped. However, following a ‘period of reflection’ and a recognition that the procedural changes contained therein where still needed, EU member states decided to repackage these into the Lisbon treaty.

So what do we learn from this?

Even if none of these cases quite captures the specifics of Brexit, the commonalities across the piece suggest that there is a general model and procedure at play in the EU. That model starts with the recognition that making decisions is hard, so once all the relevant parties have signed up to do something, there is a strong determination to see that this is followed through. As a result, those who encounter difficulties in securing approval will be cut some political slack, even as the integrity of the legal text remains very tightly held. In the worst case, if one legal form of embedding a decision gets blocked – as with the EDC or the Constitutional Treaty – then other legal forms are available and will be used to try and secure the same substantive outcome.

If we tie this back to Brexit, then this suggests that the EU is extremely unlikely to give any concessions to the UK on the substance of the Withdrawal Agreement (including the backstop arrangements for Northern Ireland), even if Parliament does reject the Meaningful Vote. Quite apart from being very out-of-character, the soon-to-be non-member state status of the UK in this process removes what has been a key motivation for the EU.

It also suggests that if the Withdrawal Agreement does fail to get ratified and a no-deal Brexit ensues, then the EU will be very likely to focus its initial efforts on securing the same guarantees that it put into the Withdrawal Agreement itself, be that on the backstop, on financial liabilities or on citizens’ rights. That substance was and is a priority for the EU, and the failure of this text would not mean that it stopped being a priority.

Finally, all of this points to the importance in all of this of the non-approving state. In all the cases outlined above, that state has formulated clear ideas and plans to resolve the problem: in none of the cases has it been the EU that was come in to sort out the mess for that state in the first instance.

Given the profound uncertainty within government and Parliament about what to do with Brexit, that does not bode well for any ratification problems in the coming months. The EU, even if it does become minded to help out the UK, can only do so if the UK can decide what help it needs.

This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics.

Simon Usherwood is Reader in Politics at the University of Surrey and Deputy Director of the UK in a Changing Europe programme (www.ukandeu.ac.uk).

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