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.