The positive aspects are as follows –
- The letter condemns the Irish backstop as undemocratic and inconsistent with both UK sovereignty and the Good Friday Agreement. It also rightly notes that the backstop would lock the UK into a customs union with the EU indefinitely with no means of escape.
- Following on from the above, the letter also states that the UK government cannot continue to endorse the commitment its predecessor made in the Joint Report of December 2017 to ‘full alignment’ with wide areas of the single market and customs union.
- The letter makes clear that ‘when the UK leaves the EU…we will leave the single market and customs union’ and goes on to emphasise that the UK seeks to diverge from EU regulations in the future, noting that this ‘is the point of our exit’.
So far, so good. But there are also worrying aspects of the letter –
- The letter states that ‘the changes we seek [to the Withdrawal Agreement] relate primarily to the backstop. This contradicts Johnson’s earlier claims that the Withdrawal Agreement is ‘dead’. It is also a worryingly weak form of words given the many other unacceptable features of the Withdrawal Agreement, which would frustrate the aims of economic and political independence which Johnson’s letter says the UK government is pursuing. Indeed, it suggests strongly that Johnson’s government might be willing to accept the withdrawal agreement shorn of the backstop – something many Brexit supporters would find totally unacceptable.
- There is no mention of the major problems in the Political Declaration that accompanies the backstop. Most importantly, the wording of the declaration again potentially locks the UK into a customs union with the EU as the final state.
- The letter contains a strange section which calls for ‘alternative arrangements’ to replace the Irish backstop ‘as far as possible before the end of the transition period’. The reference to a transition period here is unwelcome as the ‘transition period’ that the withdrawal agreement envisages is essentially vassal status for the UK – a period of complete rule-taking that would leave the UK wide open to regulatory attacks from the EU. If Johnson instead means a transition under GATT Article XXIV, that would be better – but he doesn’t say this.
- The letter then goes on to speculate that ‘alternative arrangements’ might not all be in place by the end of the transition period and that additional ‘commitments’ might be needed. This looks like potentially replacing one backstop with another and could be very problematic if the EU proved reluctant to endorse alternative approaches to keeping the Irish border soft – as is highly likely.
Overall we view the letter with a degree of concern. Elements of it suggest an unwelcome amount of continuity between Johnson’s approach and that of his predecessor, Theresa May. We have argued that the Withdrawal Agreement must be repudiated in its entirety due to its numerous unacceptable features but the letter holds out the prospect that a tweaked version of this awful treaty might be accepted by the government. Moreover, talk of transition periods and ‘additional commitments’ on the Irish border points to the Brexit can being potentially kicked down the road for several more years. We are worried Johnson may be looking for a quick way out of the Brexit impasse that leaves the UK little better off than if May’s withdrawal agreement had passed parliament.
An optimistic reading of the letter, from the point of view of those wanting a genuine Brexit, is that the letter is a feint: an attempt to show the world (and nervous Tory backbenchers) that the government is trying to get a deal, but in the full expectation that the EU will not engage with Johnson’s proposals making no-deal inevitable.
Initial reactions from the EU have indeed been dismissive. But our concern is that the EU will have viewed this letter as a sign of weakness, of Johnson buckling under the pressure of no-deal scare stories and rebellious MPs. The EU will continue to offer only meaningless ‘assurances’ and tweaks to the Political Declaration if it views Johnson’s government in this light – and wait for more concessions from the UK side.
That will only change if the EU becomes convinced no-deal is a genuine prospect. Johnson would be better off concentrating totally on a no-deal baseline and putting pressure on the EU by announcing policies – on taxation, regulation, fishing and tariffs for example – that are clearly inconsistent with the kind of fake Brexit pushed by May’s government and that will hit the EU economically while boosting the UK.