The Prime Minister’s dash to Strasbourg on the evening of March 11th had all the characteristics of a carefully choreographed theatrical stunt. The various documents released at close to mid-night had obviously been written earlier. The last-minute nature of the dash has no doubt been contrived to put maximum pressure on MPs less than 24 hours before what is in effect the Government’s third attempt to get the Withdrawal Agreement through Parliament. We know now that the theatrics failed to work, but we should be clear exactly why a rejection was necessary.
Three new documents were issued: a 5-page EU ‘Instrument on the Withdrawal Agreement’, a 2-page ‘Joint Instrument supplementing the Political Declaration’ and a single page ‘UK Declaration on the Protocol’. The documents themselves do little to improve the totally unsatisfactory Irish Protocol within the Withdrawal Agreement. The Attorney General, Geoffrey Cox, has judged that the legal position (which led to Parliament’s historic rejection) remains unchanged even if the UK’s position is in his view a little stronger than it was. This is hardly a surprise. After all, if the EU had really agreed that the UK could exit unilaterally from the Backstop a single paragraph would have sufficed to say so.
The Attorney General’s conclusion is as follows.
“I now consider that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU”.
“It may be thought that if both parties deploy a sincere desire to reach agreement and the necessary diligence, flexibility and goodwill implied by the amplified duties set out in the Joint Instrument, it is highly unlikely that a satisfactory subsequent agreement to replace the Protocol will not be concluded. But as I have previously advised, that is a political judgment, which, given the mutual incentives of the parties and the available options and competing risks, I remain strongly of the view it is right to make”.
“However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.
The Attorney General does not expand on the political risks, but they are much greater than has been widely suggested and deeper than suggested in his letter. Both sides had reiterated in the new documents that they would use best endeavours to reach an agreement. However, the aims of the two sides would be sharply contrasting.
Under a new pro-Brexit, PM the UK could aim to secure a free-trade agreement plus adding permanence to the side deals already offered by the EU, plus low friction customs arrangements and equivalence-recognition (rather than alignment on regulations covering production, labour and environment). The EU would be trying to tie the UK into a customs union to prevent us setting our own tariffs and also into alignment with EU regulations via non-regression clauses on labour and environmental standards and state aids.
It would be in the EU’s interest to forge a futures agreement that mimicked the backstop as closely as possible. If there was an alternative, we are justified in asking why it has not already been discovered in two years of negotiation. In a transition period leading up to the backstop the EU would already have secured its money together with undertakings on citizen’s rights. The incentives to move away from the Backstop would be low.
This is clear from the new documents. The Joint Statement Supplementing the Political Declaration states in its second paragraph:
“the Union and the United Kingdom wish to emphasise their shared and solemn regard for the vision for the future relationship detailed in the Political Declaration”
However, the Political Declaration states in article 23 that the future economic relationship should ensure “ambitious customs arrangements that, in line with the Parties’ objectives and principles above, build and improve on the single customs territory provided for in the Withdrawal Agreement”.
If the EU stuck to its guns at this point, and insisted that it was acting in good faith in holding the UK to its intention to remain in a customs union, how would the UK avoid moving into the Backstop and prevent the Backstop from assuming permanence?
The Declaration by HMG concerning the Northern Ireland Protocol (Para 3) states that if it is not possible to conclude an agreement to supersede the Protocol.
“the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol, in accordance with Part Six, Title III of the Withdrawal Agreement or Article 20 of the Protocol, and under the proviso that the UK will uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland.”
Unpicking this legal verbiage leads back into the quagmire that is the Backstop. The article 20 referred to here says that: “ If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons”. The objectives in article 1(3) are the extensive but vague aims of the Irish Government i.e. “to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions”. Note that these aims go well beyond the issue of border infrastructure and hence beyond anything that can be addressed through new technology.
The fact that the EU thought enough had been done in Strasbourg to get the Withdrawal Agreement through Parliament tells us all we know about the Commission’s feel for democracy. It is a mercy that the Withdrawal Agreement has once again been voted down. This surely means as Monty Python once said in an avian context “it is no more, ceased to be, expired and gone to meet its maker, bereft of life and rests in peace”. It has taken a long time for the rejection of the Withdrawal Agreement to register with the EU, or indeed the UK Government, but now that its extinction can no longer be ignored, the possibility of a more sensible future can be addressed.