WATCH: Kwarteng contradicts PM’s suggestion that Brexit might be cancelled

“On the 30th March one thing is certain, that we will have left the EU. But if the deal is voted down that would prolong uncertainty and chaos.”

From an analysis of the Withdrawal Agreement’s text: How the Irish protocol would separate Great Britain from Northern Ireland.

It can’t have been Parliament’s intention to allow Northern Ireland to form part of a separate customs territory to Great Britain for any purpose.

  • The Irish Protocol is an integral part of the Withdrawal Agreement and establishes a permanent UK-EU customs union

  • It removes Northern Ireland from the UK’s customs territory and places it in the EU’s customs territory

  • Northern Ireland is in the same customs territory as Great Britain in the same way that it is currently in the same customs territory as Turkey.

  • The protocol will inevitably create many checks and controls on trade between Great Britain and Northern Ireland, amounting to a ‘hard border’ on the Government’s definition – east-west, in this case.

  • The EU will have the power to tax and legislate for Northern Ireland in many areas as if it were an EU member state – but without any representation.

  • The ostensible justification for the protocol – because it is required by the Belfast Agreement – is not justified by the text of the Agreement, which says nothing about customs.

  • This is all in clear breach of many promises to protect the Union by the Prime Minister.

The Withdrawal Agreement and the Irish Protocol

  • Article 182 of the Withdrawal Agreement provides that the protocol on Ireland/Northern Ireland (‘the Irish Protocol’) forms an integral part of that agreement. The Irish Protocol contains the so-called backstop which has the ostensible aim of preventing a ‘hard border’ between Northern Ireland and the Irish Republic. This is said to be required by the Good Friday Agreement, but there is nothing about customs or border arrangements in that agreement.

The Irish Protocol establishes a UK-EU customs union

  • Article 6(1) of the Irish Protocol provides that until otherwise agreed, ‘a single customs territory between the Union and the United Kingdom shall be established (“the single customs territory”). Accordingly, Northern Ireland is in the same customs territory as Great Britain.’ The single customs territory is said to comprise ‘(a)the customs territory of the Union defined in Article 4 of Regulation (EU) No 952/2013; and (b) the customs territory of the United Kingdom.’ It should be noted that a single customs territory is the legal definition of a customs union: seearticle 24 of the General Agreement on Tariffs and Trade (‘GATT’) 1947, as amended.

EU customs legislation applies to Northern Ireland, not Great Britain

  • Article 6(2) of the Irish Protocol provides that ‘legislation as defined in point (2) of Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council shall apply to and in the United Kingdom in respect of Northern Ireland (not including the territorial waters of the United Kingdom).’
  • Regulation 2013/952/EU is the Union Customs Code (‘UCC’). The legislation defined in article 5, point 2 of the UCC is the (a) UCC, and its implementing and supplementary provisions, (b) the Common Customs Tariff, (c) legislation establishing EU relief from customs duty and (d) international agreements on customs applying to EU. It is plain therefore that the EU customs legislation applies to Northern Ireland, but not to Great Britain.

Northern Ireland is made part of the EU customs territory

  • The provision of fundamental importance in the Protocol is article 15(1), which provides insofar as material that: “notwithstanding any other provisions of this Protocol, any reference in the applicable provisions of the Withdrawal Agreement and of this Protocol, as well as in the provisions of Union law made applicable to and in the United Kingdom in respect of Northern Ireland by this Protocol, to the territory defined in Article 4 of Regulation (EU) No 952/2013 shall be read as including the part of the territory of the United Kingdom to which Regulation (EU) No 952/2013 applies by virtue of Article 6(2) of this Protocol.’
  • This provision needs unpacking. The territory defined in article 4 of the UCC is the ‘customs territory of the Union.’ As note above, the part of the United Kingdom to which the UCC applies by virtue of article 6(2) of the Protocol is Northern Ireland. Eliminating the deliberately obscure drafting, article 15(1) provides, in effect, that:
  • ‘Notwithstanding any other provisions of this Protocol, any reference in the applicable provisions of the Withdrawal Agreement and of this Protocol, as well as in the provisions of Union law made applicable to and in the United Kingdom in respect of Northern Ireland by this Protocol, to the customs territory of the Union shall be read as including Northern Ireland.’

In short, despite the creation of a single UK-EU customs territory by article 6(1), the protocol repeats the substance of the EU’s first draft of the Withdrawal Agreement, which had provided, in article 4(2) of the draft Irish Protocol, that ‘The territory of Northern Ireland, excluding the territorial waters of the United Kingdom… shall be considered to be part of the customs territory of the Union.’

The effect of the Withdrawal Agreement, therefore, is that Northern Ireland will form part of the EU’s customs territory, and not the United Kingdom’s, although a single customs territory is also established between the UK and the EU. Northern Ireland will thus be in the same customs territory with Great Britain in the same way that it is currently part of the same customs territory as Turkey (see article 3(3) of decision 1/95 establishing a single EU-Turkey customs territory).

It is likely that this constitutes a breach of section 55(1) of the Taxation (Cross-Border Trade) Act 2018, which entered into force in September. This provides that: ‘It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.’

It cannot have been the intention of Parliament to allow the Government to agree that Northern Ireland should form part of a separate customs territory to Great Britain for any purpose. Otherwise, it would be lawful for the Government to have transferred Northern Ireland into the Turkish customs territory without Parliamentary approval at any time.

This will mean a hard border between Great Britain and Northern Ireland

  • The Irish Protocol expressly contemplates checks on trade between Great Britain and Northern Ireland. Article 7(2) states merely that the parties will use their best endeavours to facilitate trade between Great Britain and Northern Ireland. The Joint Committee is empowered to make non-binding recommendations to avoid ‘to the extent possible, controls at the ports and airports of Northern Ireland.’ The implication is that it may not in all circumstances be possible to avoid such checks. Indeed, article 14(2) of the Irish Protocol gives the EU the right to direct UK authorities to carry out controls to give effect to the Protocol.
  • Trade between the two constituent parts of the customs territory, i.e. the EU and Northern Ireland, on the one hand, and Great Britain, on the other, is regulated by Annex 3: see article 6(1). Articles 3 to 11 of Annex 3 set out the paperwork that will be needed (i.e. UK movement certificates) for such trade, except goods in the possession of travellers and postal packets which will be exempted.
  • Annex 5 applies only to Northern Ireland: see article 6(2). It contains the whole panoply of single market controls, including border controls, on goods. For example, it applies Council Regulation 2017/625/EU. Article 47 of that Regulation requires border controls where animals, products of animal origin, plants, and plant products are first imported into the EU. Official controls include documentary checks, identity checks and physical checks: see article 49.

The ostensible aim of avoiding a hard border between Northern Ireland and Ireland has come at the expense of creating one between Northern Ireland and Great Britain. It should be remembered the definition of a hard border in para [43] of the UK-EU Joint Report of December 2017 was the absence of ‘any physical infrastructure or related checks and controls’.

The EU acquires the power to tax and legislate for Northern Ireland, without any Northern Irish representation

Other provisions of the Protocol require Northern Ireland to abide by EU legislation and taxation: see articles 9 to 12 of the Protocol, and the Annex thereto. References to EU legislation in the Protocol are ambulatory references, so there will be a duty to keep Northern Irish laws and indirect taxes aligned to EU laws and taxes in the future: see article 15(4)-(5).

Furthermore, the EU has full power to legislate in respect of Northern Ireland, and the Court of Justice will have jurisdiction: see article 14(4)-(5). Northern Ireland is, in effect, treated as part of the EU for some purposes but without any representation. This will greatly and illegitimately enhance the powers of Ireland’s Government in Northern Ireland and undermine the Union.

WATCH: Raab – “I’ve supported the Prime Minister all through her premiership and I still do now”

“I still think a deal could be done. But it is very late in the day now, and we need to change course.”

WATCH: May – The backstop is like an insurance policy

“And the backstop can only ever be temporary…under the legal arrangements of the European Union.”

WATCH: Corbyn on the draft deal – “I’ve read a lot of it – not every last word.”

“I believe there is a majority in Parliament that would support a permanent customs arrangement with the European Union.”

Famous five or fatuous five?

May won’t yield to their demand for renegotiation unless she believes that at least some of them will quit. And on the basis of last week, why would she?

Each politician has his or her own ideals, ambitions, strengths, weaknesses, hopes, fears.  It follows that the more MPs there are involved in a scheme, the more likely these qualities are to clash and collide, like particles in an experiment.  The discipline of party or government is usually required to keep politicians marching in step – and that includes Cabinet Ministers.

Which brings us to the five who want Theresa May to renegotiate aspects of her draft deal.  One might assume that Ministers as senior as Liam Fox, Michael Gove, Chris Grayling, Andrea Leadsom and Penny Mordaunt, when banded together, carry the authority of the Government with them.  But in this case, they do not.  It rests with Theresa May.  She is Prime Minister.  The Cabinet is her Cabinet.  She controls its agenda.  She shapes the minutes.

This is why she was able to see off last week’s Cabinet push to get her to renegotiate the deal.  There are no votes round the Cabinet table, as Esther McVey discovered.  There is no loyal Opposition.  Cabinet decisions may not be unanimous but they are, to use a word that May deployed herself, collective.  If a Cabinet Minister is opposed to one to the point where he cannot live with it, his only course is to resign – as McVey and Dominic Raab duly did in the meeting’s wake.

Only when a Prime Minister has lost her power do Cabinet Ministers gain more of it than she has.  This, notoriously, was the case when Margaret Thatcher was forced out.  She had beaten off a leadership challenge, but not by enough to maintain her command.  Her successor could be in a situation similar, or worse, by the end of the coming week.  But she is not there yet, if she ever will be.  While she would be foolish to sack any of the five – her powers are not limitless – her grip is for the moment tenuous, but real.

She will also have a shrewd grasp of the position of each of the five.  She won’t read Liam Fox as a resigner.  Nor Chris Grayling.  Michael Gove backed her plan very reluctantly in Cabinet, has tried to persuade her to change it, pondered resignation…but not resigned.  It would be difficult for him now to go.  That leaves Andrea Leadsom and Penny Mordaunt, perhaps the most likely of the five to walk (though one never knows).  But that tangle of motives may divide them, which opens the door to divide and rule.

In short, the threat of resignation is ultimately the only device likely to make May yield to their push.  And she will surely be thinking that if none of them quit last week, then why would any of them do so this week?  It may be that other Cabinet Ministers will now join them.  It is even possible that the Prime Minister will give way.  But if they aren’t prepared to walk away, they will probably get an outcome they won’t like.  Where else have we heard that recently?

From an analysis of the Withdrawal Agreement text: May’s broken promises on the ECJ, the backstop, customs – and dividing the UK

Article 20 says that the backstop will only ‘cease to apply’ if ‘the Union and United Kingdom decide jointly’ that it should end – no sovereign right for the UK to leave.

Customs checks in Irish Sea

  • Article 9 of the backstop states that ‘the [VAT and excise] provisions of Union law listed in Annex 6 to this Protocol concerning goods shall apply to and in the United Kingdom in respect of Northern Ireland’.

  • Annex 2 of the backstop allows certain charges and costs recovered to take place when goods travel from Great Britain to Northern Ireland.

  • The EU is making no secret of the fact that Northern Ireland will be treated differently: ‘the EU’s Customs Code will also continue to apply in Northern Ireland… Under the backstop and in order to avoid a hard border, Northern Ireland businesses can place products on the EU’s internal market without restriction. Placing goods on the internal market that come from outside of Northern Ireland requires that the processes provided for in the Union Customs Code will have to be applied’ (European Commission, November 2018, link)

  • This is despite the Prime Minister saying on 9 July: ‘First, there is what is provided for in the European Council’s guidelines from March this year. This amounts to a standard free trade agreement for Great Britain, with Northern Ireland carved off in the EU’s customs union and parts of the single market, separated through a border in the Irish sea from the UK’s own internal market. No Prime Minister of our United Kingdom could ever accept this; it would be a profound betrayal of our precious Union.’

Regulatory checks in the Irish Sea

  • Article 7 of the backstop says that ‘nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market’. This does not apply for goods moving from Great Britain to Northern Ireland.

  • Article 7 of the backstop says that there could be ‘controls at the ports and airports of Northern Ireland’

  • The UK in respect of Northern Ireland will remain aligned to a limited set of rules that are related to the EU’s Single Market and indispensable for avoiding a hard border: legislation on goods, sanitary rules for veterinary controls (“SPS rules”), rules on agricultural production/marketing, VAT and excise in respect of goods, and state aid rules

  • Article 8 of the backstop provides for goods from Northern Ireland to be indicated as ‘UK(NI)’ – a clear separation of Northern Ireland from the UK.

  • Article 10 of the backstop says that ‘the [Agriculture and environment] provisions of Union law listed in Annex 5 to this Protocol shall apply, under the conditions set out therein, to and in the United Kingdom in respect of Northern Ireland’.

  • The EU has said that that ‘in order to avoid a hard border on the island of Ireland, and to ensure that Northern Irish businesses can place products on the EU’s Single Market without restriction, it will be necessary for the UK in respect of Northern Ireland to maintain specific regulatory alignment with the EU’ (European Commission, November).

  • The EU has been clear that a regulatory barrier will be introduced for goods coming in from Great Britain: ‘There… [will be] some compliance checks with EU standards, consistent with risk, to protect consumers, economic traders and businesses in the Single Market. The EU and the UK have agreed to carry out these checks in the least intrusive way possible. The scale and frequency of the checks could be further reduced through future agreements between the EU and the UK. For industrial goods, checks are based on risk assessment, and can mostly take place in the market or at traders’ premises by the relevant authorities. Such checks will always be carried out by UK authorities. As for agricultural products, already existing checks at ports and airports will need to continue, but will be increased in scale in order to protect the EU’s Single Market, its consumers and animal health’ (European Commission, November 2018, link).

  • This is despite May saying on 9 October 2017:

Paul Girvan (South Antrim) (DUP): “I want to give comfort to the people in Northern Ireland on this matter of not having a soft or hard border down the middle of the Irish sea. I want that assurance because the people of Ulster feel that they are being set on the sidelines.

Prime Minister: “I am very happy to give that assurance. We do not want to see a border down the Irish sea either. We want to maintain the integrity of the internal market of the United Kingdom.”

The whole UK will stay in a customs union

  • Article 6 of the Backstop says that: ‘a single customs territory between the Union and the United Kingdom shall be established (“the single customs territory”). There is no possibility of the UK being able to do its own trade deals under this. This is made clear in Article 3 of Annex 2 of the Backstop:  ‘Under no circumstances may the United Kingdom: (a) apply to its customs territory a customs tariff which is lower than the Common Customs Tariff for any good or import from any third country… apply or grant in its customs territory tariff preferences to any good on the basis of rules of origin that are different from those governing the granting of such preferences to the same good by the Union in its customs territory’.

  • This looks set to become permanent. The text in the Withdrawal Agreement states that there is a ‘common objective of a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this protocol’ (p.303).

  • This is despite the Conservative Party Manifesto 2017 pledging that –

“As we leave the European Union, we will no longer be members of the single market or the customs union.”

Possibility of the extension of the transition period

  • Article 132 (p122): Provides for a one-off extension of the transition period (potentially up to 2099). This is despite the Prime Minister promising –

“An implementation period ‘of around two years’.

The backstop can only end with EU permission

  • Article 1 of the backstop says that ‘the provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement’.
  • Article 20 of the backstop: says that the backstop will only ‘cease to apply’ if ‘the Union and United Kingdom decide jointly’ that it should end. I.e. no unilateral exit clause and no sovereign right for the UK to leave

This is despite multiple promises from Cabinet Ministers that the UK would have a unilateral right to leave.

EU control of our laws / level playing field

  • Article 12 of the Backstop says that ‘the [State Aid] provisions of Union law listed in Annex 8 to this Protocol shall apply to the United Kingdom’ (p.317). The same Article also treats Northern Ireland differently. Article 12(3) makes clear that the European Commission has the power to investigate ‘a measure by the United Kingdom authorities that may constitute unlawful aid’.

  • The EU also says that states that ‘The aim of the Protocol is to ensure that EU law, in the areas stipulated in Protocol 3 to Cyprus’s Act of Accession, will continue to apply in the Sovereign Base Areas’.

  • Article 174 says that matters could be referred to the ECJ. The EU even makes this clear in a chart on their website (see below).

 

  • Article 87 says that ‘if the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under part…. of the agreement before the end of the transition period, the European Commission may, within four years after the end of the transition period, bring the matter before the Court of Justice’.

  • Again this is a clear breach of multiple promises by the Prime Minister – for example, that –

“We are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen’.

David Davies: I voted and campaigned for Leave. But here’s why I’m supporting May’s Brexit plan.

Opposing this proposal serves only to help those who wish to undermin eour desire to respect the referendum result. It is only by being united that we can fight them off.

David Davies is Chair of the Welsh Affairs Select Committee, and is MP for Monmouth.

Ever since I entered Parliament in 2005, I have passionately and sincerely campaigned for the United Kingdom to leave the European Union. Back in 2011, long before it became policy, I joined the Parliamentary rebellion to support a referendum on the issue.

Immediately after the referendum was announced, I began my daily campaign for Leave, both in my constituency and across the UK. I have knocked on countless doors and addressed many meetings in aid of this cause. So I do not think anyone can say I have not done my bit for Brexit.

It is precisely because of my longstanding support for Brexit that I will be backing the deal proposed by Theresa May.  It is not perfect, and there are many things I would like to have seen done differently in the negotiations. The Government should have begun planning earlier for no deal ,and made clear our willingness to follow this path if necessary. This would undoubtedly have increased our leverage in the negotiations.

And, there are areas where I will seek further reassurance. Not least, that no deal planning continues so that we maintain our ability to walk away if we have to.  But all of us have to deal with where we are now – with the circumstances in front of us.

This deal will take us out of the EU on 29th March 2019, as planned. Not as far out as I or many of my colleagues would like, but out nonetheless. And once we are out, there is no returning.

Franklin D Roosevelt famously asked people to ‘judge him by the enemies he made’. The Prime Minister would do well to ask the Conservative Party to do the same when it comes to this deal.

It is telling that some of the most vehement opponents of the deal are longstanding Remainers, who are explicit about their desire to overturn the referendum result. And, of course, the entire Labour frontbench, which smells an opportunity to try and remove the Conservative Government from office and usher in a Marxist one.

If this was truly as bad a Brexit as many claim, it is hard to see why those groups are working so hard to defeat it. Ultimately, their aim is for Brexit to fail. The reason they are working so hard to stop this deal is because they know that, if it is passed and we do leave in March next year, there is no going back.

After working and campaigning so hard for Brexit, I cannot understand why my colleagues would rather walk through the lobbies with those who have spent the past years trying to thwart them. Surely they can see doing as much would only play into their hands.

Many of my colleagues believe that if this deal is voted down, it will lead to us getting a better deal, with a cleaner break from the EU or just to no deal at all. But, with the greatest respect to them, there are no guarantees. It is just as likely, and possibly more likely, that we will end up locked into the Customs Union and Single Market permanently or, even worse, that we do not leave at all.

Lining up against this deal fundamentally risks what we have all worked so hard to deliver. Ultimately, it only serves to help those who wish to undermine our position and our desire to respect the result of the referendum. It is only by being united that we can fight them off.

This has been shown through the recent history of the Conservative Party. I fought my first general election in 1997. And, as with many of our candidates that year, I was resoundingly beaten. Why? Because our party had spent the past four years tearing chunks out of each other over Europe. The public have always taken a dim view of such division and self-interest. They will do so again. In the end, they simply want us to get on with it.

There is undoubtedly more work to be done over the coming weeks and months – even years. But this deal allows us to end the free movement of people, end our contributions to the EU budget, end our membership of the Common Agricultural Policy, take back control of our waters by ending the Common Fisheries Policy and have the ability to strike our own trade deals for the first time in over 40 years. Most of all ,it allows us to leave the European Union.

The honest truth for those of us that have long supported Brexit is that if this deal had been offered to us before the referendum, we would have gratefully grabbed it with both hands. We should all do so now.

A first glance at some of the main points in May’s deal

We set five tests for it. Does this draft agreement pass them? And does it really take back control of our borders, laws and money?

When Theresa May set out her strategy for the Brexit negotiations, she set out three goals: to take back control of Britain’s money, laws, and borders.

As the talks have progressed, more issues have emerged – not least Northern Ireland and the territorial integrity of the UK. So this month we suggested a further five points to consider.

They are: would the deal hive off Northern Ireland? Does it threaten to break up the Union? Would it trap the country in a customs union? Does it hand over money for nothing? And does it more closely resemble Chequers, or ‘Canada’?

Below, we take a look at how the Prime Minister’s proposals measure up against these yardsticks.

Are we taking back control of our money?

Probably. We’re paying the so-called ‘divorce bill’ as part of the Withdrawal Agreement, so won’t be able to use it as leverage during the future relationship. Lee Rotherham also points out that there’s little mention of the UK regaining our share of EU assets, despite lots of mention of our liabilities to the bloc.

Perhaps more ominously, we will continue paying in during the initial ‘transition period’, and if we choose to extend it Article 138 says that our contributions will be established at an ‘appropriate’ level by the Joint Committee. One Labour MP compared this to signing an insurance agreement without knowing what the excess was.

The question is whether, or how, we end up disentangling ourselves from the EU during that period. Some of these issues may only become clear when the future relationship is negotiated.

Are we taking back control of our laws?

When it comes to the jurisdiction of the European Court of Justice, the negotiators seem to have made some progress. Compared to the EU’s initial proposals (which a former ECJ judge denounced as ‘leonine’) its role is substantially reduced, and the idea that it would be the mediating institution in disputes between the UK and the EU is gone. One analyst has dubbed this a ‘solid win’.

On the other hand, this piece in the Financial Times suggests that the role of the ECJ, especially during the transition, could be much greater than the above analysis suggests, and that it might in effect remain the ultimate arbiter of UK-EU disputes.

Beyond that, there are other points of concern. First, Rotherham reports that the deal locks the UK into the European Convention on Human Rights, precluding any possibility of repatriating judicial supremacy to these islands – a longstanding Conservative ambition, and one shared by the Prime Minister.

Moreover, there was extensive ‘level playing field’ provisions (Annex 4) which would prevent future British governments from setting independent policy in a broad range of areas, and Rotherham suggests that the section on equivalence could end up with Britain in “in a fax democracy version of a Regulatory Union, and probably in a form of Customs Union.”

Finally, there is the salient fact that the backstop proposals, if implemented, don’t contain any procedure for the UK’s unilateral withdrawal (at least not without resiling from our entire negotiated relationship with the EU). This is a serious curb on the practical power, if not the technical sovereignty, of Parliament.

CCHQ is taking pains to combat the idea that the backstop is inescapable. In an email to the National Convention, Brandon Lewis writes:

  • “If both sides agree the future relationship is ready we would leave the backstop. This judgement would need to be taken in good faith and with view to their commitment on best endeavours.”
  • “If there is a disagreement, a special conference would try and resolve the differences.”
  • “If that failed to reach an agreement it would go to independent arbitration as to whether the NI protocol is still needed to meet its objectives.”

According to Article 170, “independent arbitration” means “the International Bureau of the Permanent Court of Arbitration”, an intergovernmental organisation based at The Hague. The five-person panel will comprise two members apiece from the UK and the EU, plus one independent member, whittled down from a shortlist of 25 (Article 171).

On the face of it this could allow the UK – if it had a very strong case – to climb the chain of appeals and have EU objections to withdrawing from the backstop overridden at the PCA. That doesn’t seem a likely scenario, however, and can’t be spun – as Lewis is trying to do – as a practical, reliable means of quitting the backstop.

Are we taking back control of our borders?

Eventually, probably. The Withdrawal Agreement at least doesn’t commit the UK to maintaining freedom of movement in perpetuity, and it has been argued in some quarters that the Government has actually managed, to an extent, to divide the ‘four freedoms’ and secure some form of market access without unlimited EU immigration.

However, the UK will have to maintain our current policies – including freedom of movement – at least until the end of the ‘transition period’ in 2021. Unless a full future relationship has been negotiated by then (and experience doesn’t offer much grounds for optimism) we will then probably use our one-off extension of the ‘transition period’, further prolonging freedom of movement.

If we revert to the backstop, freedom of movement comes to an end, but at present that option looks likely to be so unpalatable that few prime ministers would choose to enter it if they can help it.

The upshot of all that is that is that we aren’t locked in to freedom of movement indefinitely, but we probably won’t be able to introduce new controls for years.

On a final note, Rotherham suggests that, despite what David Mundell and other Scottish Conservatives have been saying about the UK becoming an ‘independent coastal state’, in fact the fate of British fishing stocks is still on the table.

Will it hive off Northern Ireland?

The barriers are less than they might have been – it doesn’t look as though there will be a customs border down the Irish Sea – but Northern Ireland is still a case apart under the proposed backstop, which is why it features in a huge share of the deal’s text.

Whilst the customs union provisions will be UK-wide, Ulster will remain additionally subject to a range of single market rules and other EU laws including VAT and excise (Article 9), Agriculture and environment (Article 10), the single electricity market (Article 11), and in part state aid (Article 12).

This will put Northern Ireland in the problematic position of having its economy regulated by a foreign legislature in which it is unrepresented (although MEPs from the Republic of Ireland might try to claim that mantle), and with the explicit intention of prioritising its alignment with the EU and Irish markets rather than the British one, despite the latter accounting for vastly more of its external sales.

Since the British Government will also have no right to withdraw, this means that Northern Irish voters will have no democratic control over important areas of law via either Stormont or Westminster.

However, RTE’s Tony Connelly has tweeted to explain how the EU intends to allow GB-NI trade to run smoothly… and it sounds a lot like the combination of targeted checks, back-office enforcement, and technology that was supposedly incapable of allowing for a ‘frictionless’ north-south trade border without the backstop. A Dutch customs expert has also told MPs that a technical solution on north-south trade is perfectly practical (video available).

If Dublin and Brussels are sincere when they say that their goal is simply to ensure smooth trade and avoid giving would-be terrorists obvious targets, this holds out some hope that the customs element of the backstop could be obviated entirely by a proper north-south arrangement.

However, it may be very difficult to get this done in practice. As the Prime Minister told the Commons on Thursday, under these proposals the backstop cannot be revived once it is set aside. That will make the other side very wary about doing so.

The problem of Single Market rules, however, would remain regardless.

Does it threaten to break up the Union?

The backstop poses several potential dangers to the integrity of the United Kingdom, both in relation to Northern Ireland and elsewhere.

First, there are the long-term ramifications of the Northern Irish economy potentially re-aligning away from the mainland in the course of a decade (or longer) locked into structure that gives preferential treatment to north-south commerce, and of Irish politicians unofficially – but probably publicly – presuming to act on its behalf inside the EU.

Ian Lucas, the Labour MP for Wrexham, highlighted the extraordinary way in which the agreement handles GB-NI trade in a question to the Prime Minister on Thursday.

Not to be under-estimated either is the damage this could do within political unionism. Northern Ireland’s position in the United Kingdom has not been strengthened by its almost complete political isolation, and if the links forged over the past couple of years were burned in the process of passing this deal it would represent a significant step backwards.

But the backstop isn’t just a problem for Northern Ireland. As Joanna Cherry, an SNP MP, has pointed out, such a high-alignment and asymmetrical arrangement makes life much, much easier for separatists across these islands. Not only does it restore the high floor for ongoing relations which made ‘independence in Europe’ so saleable, but it throws in an added advantage in that Scotland could theoretically regain its status as a ‘rule maker’ whilst not missing out on any trade with rUK.

This, and not just solidarity or high unionist principle, is presumably why both David Mundell and Ruth Davidson threatened to resign in the event of a withdrawal agreement which offered differential treatment for Ulster. Since that’s exactly what we’ve got, their u-turn on this is hard to explain.

Nor is all quiet on the Welsh front: during questions in the Commons yesterday a Plaid Cymru MP once again illustrated the dangers of the backstop by asking May to assure him that there would be no border between England and Wales if the latter were to adopt the Northern Irish settlement.

Would it trap the country in a customs union?

There seems a very strong chance of this. As previously explained, the backstop would lock the UK into a customs union without the ability to withdraw unilaterally. Worse, that would be a customs union in which the Government had no input into the rules.

Of course, neither side officially wants the backstop to come into force. But there are reports that, on the EU side at least, it is viewed as something to be built out on when constructing the future relationship, rather than merely a refuge of last resort if the negotiations falter. There is therefore a risk that integration on this level becomes the basis of the future partnership.

Does it hand over money for nothing?

Our editor posed the following question: “Since a future trade deal will be covered by an unenforceable political declaration – not the Withdrawal Agreement – what safeguards are there against shelling out £40 billion for nothing?”

The short answer seems to be “not many”. The political declaration on the future relationship is broad-strokes, to say the least, and whilst it could potentially shape up into a good agreement there are also plenty of areas where things could go wrong from London’s perspective. Rotherham also sets out in his Brexit Central piece several ways in which he thinks the financial settlement is unfair on Britain.

What is certain is that if the UK hands over the entire divorce bill it won’t be able to use those billions, and the threat of the EU being under-funded, as leverage during the negotiations. (The IEA have suggested one way in which London might split the payments, holding back £19.8 billion earmarked for “outstanding budget commitments”.)

Chequers or Canada?

This one we can’t definitively answer. The withdrawal agreement is not the future relationship, and the document we have on the latter is too short to draw clear conclusions from. A lot will depend on how the negotiations go between next March and the ultimate end of the transition period in “20XX” (note: not even “202X”!).

Whether or not an all-UK ‘Canada’ arrangement is possible seems to depend on whether the Government can negotiate to have the EU’s minimal-friction, tech-enabled, and intelligence-led customs arrangements applied to north-south trade from Northern Ireland instead of east-west.

However, there are ominous indicators. As our editor highlighted on Friday morning, the final spur for Dominic Raab’s resignation was the insertion, without his knowledge, of a commitment to pursue ” ambitious customs arrangements that build on the single customs territory provided for in the Withdrawal Agreement”. That doesn’t entirely close off the path to Canada, but it heavily skews the parameters of the negotiations towards a settlement that looks more like Chequers.

Our survey. Seven out of ten Party member respondents oppose the draft Brexit deal.

The finding suggests that she will have an uphill struggle to sell it to them, just as she did over Chequers.

Last month, 68 per cent of respondents to our survey wanted a Canada Plus Plus Plus-type Brexit, or else no deal at all – in other words, a quite hard to very hard Brexit.

And this month, we have 72 per cent against the Prime Minister’s draft deal and 23 per cent for it.

In other words, the bulk of our Party member panel respondents want a hardish or clean Brexit, and see Theresa May’s draft deal as not delivering it – a view that many will have taken without reading the best part of 600 pages of which it consists.

But there you go.  It’s salutory to look back to our final survey before the EU referendum, which showed 71 per cent of respondents either definitely for Leave or leaning to Leave, and 27 per cent either definitely for Remain or leaning to Remain.

What seems to have happened over time is that a very big slice of those Tory activists who voted Leave have solidified behind the clean or hardish Brexit that they probably always favoured in the first place.

It will be claimed that there is more support for the Prime Minister’s draft deal among Party members than this finding suggests, to which we make three responses.

First, the survey was opened on Thursday morning, and most responses arrived before May’s Commons statement and press conference of later that day, which might have made a difference at the margin.  And, certainly, views may change.

Second, this is the much same panel that swung behind May’s joint report agreement of last December by 73 per cent to 22 per cent.  It has not been reflexively hostile to everything she has done in the Brexit negotiations.

Finally, the survey results tend to end up in the same ball park as YouGov’s polls of party members, which are infrequent, but we regard as the gold standard.  After all, theirs are opinion polls and ours is a self-selecting survey.

That said, the survey has a strong record, and the message that this result sends to Downing Street is: polls suggest that voters haven’t swung behind your deal, and seven out of ten Party members oppose it.