Esther McVey: How to deliver Brexit from here. We must prepare properly for no deal.

When I tried to focus these concerns by calling for a vote to see if this deal did indeed have the agreement of Cabinet, opposition crumbled – and my colleagues fell silent.

Esther McVey is a former Work and Pensions Secretary, and is MP for Tatton.

Resigning from Cabinet is often described as one of the most difficult decisions that a politician can make, but for me it was entirely logical.

From the outset, it was clear that the Withdrawal Agreement failed to honour the outcome of the EU referendum, secure our long-term economic independence and take full advantage of the UK leaving the constraints of the EU. How could I remain in the Cabinet knowing that?

I could not, hand on heart, sign up to a deal that sells the UK short. So keeping my job paled into insignificance compared to the enormity of the effects that this bad deal will have on the future prosperity of our country. Its effects will last far longer than any of our careers; it will shape the UK’s future for generations to come.

Concerns about the agreement around the Cabinet table were palpable, and the legal advice from Geoffrey Cox was damning.  This was the one chance that the Cabinet had to avert the UK accepting a bad deal.  But when I tried to focus these concerns by calling for a vote to see if this deal did indeed have the agreement of Cabinet, opposition crumbled – and my colleagues fell silent.

In politics, trust is paramount.  Once it is lost you cannot get it back.  Leaving the EU on the terms set out in the Withdrawal Agreement would see us lose public trust on the biggest issue of our age.  And we were risking that trust on an agreement which had zero chance of passing a vote in the Commons.

Even now, I find it hard to believe that my colleagues could not see that this deal was doomed from the outset. Since I left the Cabinet, I have watched with disbelief as events have unfolded – like everyone else.  The attempts to sell this fundamentally bad deal through a full Ministerial tour and PR campaign actually saw opposition harden.  The Government was left with no option this week but to pull the meaningful vote to avoid a defeat of historic proportions.

In her statement on the delay to the vote, the Prime Minister spoke of the need to provide ‘reassurances’ on the backstop for the Northern Irish Border.  This was a major misreading of the concerns which I and many others have over the backstop and of the deal which will see us hand over £39 billion with zero guarantees over a future trade agreement.

The Prime Minister has now won a confidence vote of Parliamentary colleagues, but it is clear there are significant concerns over what remains a bad deal for the UK.  However, rather than using this moment to reassess the Government’s approach to the terms of our exit, the Prime Minister continues to talk about seeking further reassurances.  Mere reassurances fall far short of addressing what is wrong with this deal. We need fundamental changes, including to the legally binding agreement.

The Prime Minister must now do what she should have done when it was clear that the deal she presented to Cabinet did not honour the outcome of the referendum, failed to secure our long term economic independence and risked missing the huge opportunities of leaving the constraints of the European Union.

She must use the clear domestic concerns about the agreement to push for two fundamental changes

  • That the backstop is ultimately unacceptable and must be removed and,
  • That the £39 billion must be linked to a future trade agreement.

The clock is ticking, so we simply do not have the time to pretend that, with a little bit of tinkering, this fundamentally bad deal can be made acceptable to the British people.  The more time we waste on an agreement which cannot meet the wishes of both sides, the more likely it is that we will default to an abrupt departure at the end of March.

t is better to focus our time, resources and energy on preparing a planned Brexit now and to come up with a clear plan for what will follow.  To continue with a charade that tweaking here and there and tacking on assurances will somehow make this flawed agreement better risks the Government failing properly to prepare for what comes next.

With little over three months remaining, we must pursue these two conditions with the EU and, if they are rejected, then we must accept that it has not been possible to secure a deal which satisfies the interests of both the UK and the EU.  In the event of this outcome, we must focus all our resources on securing an orderly exit from the EU.

Moving to a planned Brexit should follow these recommendations to ensure that it is as orderly as possible in the time that we have available:

  • Identify the pragmatic and tactical agreements based upon mutual interest which we can make with the EU and bi-laterally with individual member states to minimise disruption to both parties upon the UK’s exit from the European Union.
  • Put in place the contingency measures that we can begin to implement now, giving clarity to people and businesses. Immediately review all no deal planning conducted to date and scale up planning in key areas before 29 March to allow the UK to mitigate known areas of impact.
  • Negotiate a ‘no deal implementation period’, like the one in place for a deal situation, and pay the EU our membership fee during that time (circa £10 billion a per year net).
  • Identify investments in new systems, such as those in operation at the border which need to be implemented, scaled up or brought forward to support an orderly Brexit.
  • Begin immediate discussions with the Republic of Ireland on the operation of an open border post-Brexit, since both the UK and the Republic have committed to no hard border even in the event of no deal.
  • Start an immediate study of the policy changes needed to ensure the long-term competitiveness of the UK, including the reduction of burdensome regulations on business and, where required, divergence from the EU, while maintaining alignment in areas of national interest.
  • Issue immediate reassurance to all EU nationals residing in the UK to remove any doubts over their future and rights once the UK has left the EU.

Moving to a planned Brexit will allow us to reallocate the £39 billion to implement contingency measures, introduce new systems to ensure long term success and provide a cushion to those areas of the economy which need more time to adjust to the change.

It will also allow us to move beyond the discussion over the flawed backstop arrangement and look for practical solutions for the Northern Irish Border.  The EU has cynically used the backstop to leverage a deal which will allow them to keep the UK tied into their rules indefinitely.  Shifting the focus to a planned Brexit would give a clear focus on the practical arrangements that authorities on both sides of the border need to take to keep the border open.

The current Withdrawal Agreement does not fulfil our vote to leave the EU, is not in our economic interests and, ultimately, its inherent flaws mean that it increases the chances of the UK defaulting into an abrupt no deal Brexit.

It is increasingly clear that an alternative approach is required.  Some have suggested that Norway, ‘Norway for now’, Norway Plus or EFTA/EEA membership could present that alternative, yet this would keep us even more closely tied to the EU and would genuinely ensure that we remain in the EU in all but name. This is not delivering on the referendum and would destroy the public’s faith in democracy.

Without agreement from the EU that it is willing to remove the backstop and accept that the £39 billion payment must be linked to a future trade agreement, a planned and orderly Brexit as outlined above is the only option which prioritises our economic interests, is achievable within the time frame left and which actually delivers on the public vote to leave.

Shailesh Vara: This Better Deal would solve the backstop problem

Our plan is supported by remainers like me, by leavers such as David Davis and Dominic Raab and, crucially, by the DUP.

Shailesh Vara is a former Northern Ireland Minister, and is MP for North West Cambridgeshire.

I voted to remain in the EUU referendum, but I believe the largest ever public mandate should be respected. Parliament should deliver what the people wanted and that is to leave the European Union. In so doing, it is important that we get the very best deal possible.

The current Withdrawal Agreement is clearly unsatisfactory, and that is why I resigned from my ministerial post in the Northern Ireland Office. The bedrock of dissent has been about the backstop.

It strikes at our nation’s soul and imperils our Union by treating Northern Ireland differently to the rest of the UK. If we signed up to it, we would be trapped under the thumb of the EU as its satellite, obeying its laws without a say, unless the EU and its members gave permission for us to leave.

The backstop would place the UK in a “single customs territory”, causing two fundamental problems for our post-Brexit trading relationships. 

First, it would stop us from being able to strike trade deals with non-EU countries, as it would bar us from controlling our tariffs and regulations. Without control in these areas, we would be useless to any prospective trading partner.

Second, with regard to the UK-EU trading relationship, the backstop would create a climate which lends itself to continued EU belligerence. The EU would have no incentive to make concessions in future trade negotiations. 

Once member states have the ability to wield the threat of plunging us into the backstop – and keeping us there indefinitely – we will have no alternative but to make concessions we don’t want to. The Spanish could use Gibraltar as a bargaining chip and the French could demand continued access by EU boats to UK fishing waters.  We can’t possibly let the backstop hold our future trade talks hostage in this way.

So we need a new approach – A Better Deal – and that what’s been published by a team of legal and customs experts. It is supported by remainers like me, by leavers such as David Davis and Dominic Raab and crucially, the DUP. It doesn’t throw out the Prime Minister’s plan. Indeed, it retains the vast majority of the draft Withdrawal Agreement, whilst identifying and removing the poison pills that have prevented it from finding cross-party support.

A Better Deal provides the Government with an alternative vision to present to Brussels.  It is likely to command support in Parliament, closely resembles the offer made by the EU itself last March and honours the referendum result.

Our proposal would restore – rather than destroy – the UK’s leverage for future trade talks with the EU. It safeguards the integrity of the United Kingdom, since it doesn’t treat Northern Ireland differently to the rest of the UK, and it would allow us to be a credible trade partner for third countries after 29th March 2019.

A Better Deal bins the divisive and ill-thought-through Northern Ireland Protocol and replaces it with an extendable backstop. The new backstop would allow us to control our own tariff schedules and regulations – so it’s not an inherently negative situation for the UK to be in. 

In fact, some may even argue that under our proposal the backstop becomes a “front stop” – and for that reason, no EU country could use it to cajole us into having to agree to a set of appalling terms from Brussels which would let British consumers and businesses down.

The new backstop would provide for tariff-free trade in goods; it would bring about regulatory cooperation between us and the EU as well as regulatory recognition based on “deemed equivalence” – making use of the unique fact that our regulations will be identical on day one of Brexit.

This new and reformed backstop include an agreement to deploy advanced customs and trade facilitation measures, including any specific measures necessary for the Northern Ireland/Ireland border, in addition to normal, free trade agreement-style level playing field provisions on labour, the environment, competition and state aid – unlike the hugely one-sided commitments in the Withdrawal Agreement.  And importantly, it will include a commitment by all parties not to place infrastructure on the border – nobody wants to see that.

Brussels wants to do a deal with us. They offered us a free trade deal back in March, and I suspect that the EU negotiators have been surprised at our inability to grab what is on offer. 

We have a chance to put our future prosperity in our hands as we become a great, self-governing, free trading nation once again. The proposals in A Better Deal will, I believe, meet with the approval of many of my colleagues in Parliament as well as the public. It stays loyal to the Belfast Agreement, avoids a hard border and allows us to leave the arrangement, should we wish to do so. The UK is crying out for a better deal.  Let’s make sure we deliver it.

Stephen Booth: The backstop. It’s problematic for the EU as well as the UK – whatever you’re told to the contrary.

There is real concern in some capitals that the UK can use the backstop to secure privileged access to the Single Market in goods with, over time, a competitive advantage.

Stephen Booth is Director of Policy and Research at Open Europe.

The so-called “backstop” is understandably the most controversial aspect of the Brexit deal parliament will begin debating this week. It is certainly less than perfect, but it offers the UK far more than its fiercest critics suggest. It provides an exit route from the EU, would free the UK from many of its current obligations, and provides a platform from which we can improve our position in future. It creates genuine problems for Northern Ireland, but also the potential to act as the gateway for securing free trade in goods with the EU.

Although billed simply as an insurance policy against a hard border in Ireland, it is actually quite likely that, following the standstill transition, the backstop will provide the basis for the UK-EU relationship as negotiations over the future relationship continue. So what would this mean?

Importantly, the backstop is a much looser relationship than membership of the Single Market and would turn off the tap of almost all new EU rules. The UK will take on the stock of existing EU legislation, but would be able to amend much of these laws applying in Great Britain in future. Northern Ireland would need to maintain and update the rules set out in the backstop, which might lead to some degree of regulatory divergence across the Irish Sea, but (other than for food and agricultural products where there are already checks) necessary checks would primarily be done in the marketplace and all by UK authorities. Brexit inevitably means some degree of special arrangements for Northern Ireland, which otherwise would either move away from the UK (upsetting Unionists) or away from Ireland (upsetting Nationalists). But, importantly, the UK can veto any attempt by the EU to widen the scope of the backstop by applying new rules to Northern Ireland.

At a stroke, we would be free to set our own rules on the biggest area of our economy – services, which account for nearly 80 per cent of GDP. The free movement of people would no longer apply and the UK could set its own immigration policy for EU and non-EU nationals. The UK would be required to maintain a floor of standards and protections in areas such as employment law and environmental policy, but could achieve these in new ways that better suited its economy. The UK would not be compelled to make any financial contributions to the EU other than for those programmes it chooses to take part in.

By establishing a UK-wide customs union, the backstop would limit the UK’s independence in trade policy. For services, we could potentially do independent or deeper trade deals than the EU, but we would need to align with EU tariffs and agreements for goods. Over the long-term, a customs union is unlikely to be politically sustainable and greater independence would be desirable. The EU has also agreed at political level that the UK will regain independence over its trade policy in future. However, it is also true that the UK’s customs systems are not yet ready and a period of time in some form of customs union after the end of the 21-month standstill transition was likely to be inevitable under a negotiated deal.

While the UK has secured many advantages, some aspects of the backstop are certainly hard to swallow. But the EU has also paid a high price for its insistence on a backstop. The UK’s commitments to maintain EU standards are far weaker than many member states would want and there is real concern in some capitals that the UK can use the backstop to secure privileged access to the Single Market in goods with very few obligations and, over time, at a competitive advantage. This is why, despite the lack of a firm time limit in the backstop, the EU is very unlikely to want to live with the arrangement indefinitely.

It is clear that the Government faces an uphill struggle to get this Brexit deal approved by Parliament. Presumably rejection of the deal on 11 December would set the stage for some last-minute haggling in Brussels and tweaks before Theresa May tries to convince MPs a second time around. However, it is also clear that the EU will not accept a deal without a backstop for Northern Ireland. And, if the UK does seek changes, it could prompt the EU to reopen issues such as fishing rights. Ultimately, the choice remains whether to accept a deal with a backstop or reject it.

No Deal is the theoretical default if this deal cannot be ratified, but the parliamentary arithmetic might suggest a softer form of Brexit along the lines of ‘Norway-plus’ is a more likely outcome, although that is far from a simple path. The truth is no one can predict what would happen. This is why both sides of the debate should consider carefully the merits of the compromise on offer before risking a much worse outcome in search of their ideal.

Daniel Hannan: I want to support May’s plan. But I can’t. It proposes a way of leaving the EU that’s exactly the wrong way round.

Instead of leaving the Customs Union but retaining chunks of the Single Market – we shall end up staying in the Customs Union but leaving most of the Single Market.

Daniel Hannan is an MEP for South-East England, and a journalist, author and broadcaster. His most recent book is What Next: How to Get the Best from Brexit.

I have been watching the dégringolade of Brexit with – if such a thing is possible – even more agony than the rest of you. It’s not just the frustration of seeing mistake after avoidable mistake being made by our side. It’s not just the tossing away of a generational opportunity to relaunch Britain as a global trader. It’s something else. You see, I had always expected, at this stage, to be one of those Leavers who could warmly back a compromise deal.

As regular readers of this column will know, I never liked the idea of a WTO Brexit. I wrote here on the day of the referendum itself that, whichever side won, it would need to accommodate the large minority which had voted the other way]. I have spent two years suggesting various compromises that both sides might live with. So when the clever and amiable David Lidington urges us to back the withdrawal deal on grounds that “the 52 per cent get control of laws, money, borders + out of CFP; the 48 per cent get closer trade partnership with EU than Canada or any advanced economy + cooperation on police & security,” I really want to agree.

Liders, after all, is more or less taking the line I have been taking over the past two years. A 52-48 vote, as I kept telling anyone who’d listen, was not a mandate for a radical break, but for a phased and partial recovery of powers. When critics complained that we’d be left “half in, half out”, I’d retort that that was pretty much the way the nation had voted, and that there was no dishonour looking for a middle way.

But here’s the thing. When I suggested accepting a half-in-half-out settlement, I assumed we’d aim to keep the good half and junk the bad half. The Eurosceptic demand, down the years, had always been “common market, not common government”. That was the position of Teddy Taylor and Dick Body and, before them, of Neil Marten and Enoch Powell, of Hugh Gaitskell and Clement Attlee. It seemed a safe bet that the government would respond to the 2016 vote by seeking something along those lines. I wanted Swiss-style EFTA membership, but I was prepared for pretty much any reasonable compromise.

Yet, incredibly, Theresa May has come back with a deal that keeps the worst aspects of membership and junks the potential advantages. Instead of staying in the common market but leaving the EU’s more federal policies, we are doing the reverse. We propose to leave the common market but keep, as much as any non-member can, the obligations imposed on us by the European Arrest Warrant, the Common Foreign and Security Policy and the rest.

Instead of doing a Switzerland – leaving the Customs Union but retaining chunks of the Single Market – we shall end up staying in the Customs Union but leaving most of the Single Market. In other words, we shall prejudice our trade with the EU 27 while simultaneously making impossible trade deals with anyone else.

If you had asked three years ago whether leaving the EU while keeping the Customs Union was desirable, you’d have been laughed at by all sides. It had always clobbered Britain uniquely as the member state that did the most trade outside the EU. The idea that we might stay in it while giving up any say over it, obliging ourselves to follow all EU concessions to third countries without any incentive for those third countries to reciprocate to us, would have been too absurd to contemplate.

How have we ended up in this humiliating position? In Labour’s case, the answer is sheer opportunism. The party was anti-Customs Union until February of this year on the impeccable grounds that, as Jeremy Corbyn put it, “it is protectionist against developing countries”. It reversed its position when it scented an opportunity to win a parliamentary vote, but I still haven’t heard a single Labour MP come out with a convincing defence of the new policy. Indeed, debating some of them, I’m left wondering whether they have any grasp of what the Customs Union is. Labour now seems to be anti-Single Market but pro-Customs Union on no better grounds than that it doesn’t like the word “market” but does like the word “union”.

The Government’s position is even odder. Having promised on more than 20 occasions that Britain would leave the Customs Union, the Prime Minister now presents as a victory the fact that the backstop would keep the whole UK in that subordinate position. In fact, of course, this was the EU’s aim all along. The row over the Northern Ireland border was invented as a way to grip the UK in the tight clamp of the Customs Union, giving EU exporters preferential access to our market while simultaneously allowing Brussels negotiators to use that market as a negotiating counter to get better terms for their own countries.

The claim that the Customs Union is temporary depends on our faith in two things: the Prime Minister’s negotiating ability and the EU’s generosity. On the basis of the record of the past two years, is that a gamble you’d make? The other EU states are not hiding their glee at our surrender. Emmanuel Macron has already said that he will veto a future trade deal – that is, keep us in the Customs Union – unless we open our fishing grounds to his skippers. It takes only one country to wield a veto at that stage, so Madrid might make a similar threat over Gibraltar, Dublin over Ulster and so on. Britain would by then have handed away its £39 billion and all its leverage. Are we really supposed to believe that the EU would terminate a position that is, as Donald Trump correctly says, advantageous to the 27 but excruciating for Britain, out of sheer goodwill?

I can’t speak for every Eurosceptic, but most of us voted Leave because we wanted a freer, more democratic and more global Britain. We didn’t want to sever all our links with our European allies. We simply wanted to be free to stand aside as they pursued their goal of political amalgamation.

The deal that will come before Parliament doesn’t offer that outcome. Quite the opposite: it would lead to a Britain that is as constrained as now, but less commercially engaged. The only Leavers who might support such a deal are those Old Labour voters who want a protectionist Britain and fewer foreign workers. Yet, as far as I can tell, even they don’t like it.

Supporters of the deal are (with the exception of the brilliant but, on this occasion, mistaken Rory Stewart) not really trying to make a positive case for it. Instead, they are reduced to telling us that the alternatives are even worse and that everyone is sick of the whole business. They’re wrong. The alternatives have not been tried, and most Leavers only ever supported Brexit as a means to an end, not an end in itself. This agreement delivers an outcome worse than either staying or leaving. It has been negotiated by people who never liked what they were doing, never understood why anyone might have voted Leave (other than on anti-immigration grounds) and defined their success as coming back with something – anything – to which they could attach the label “Brexit”. They have misjudged the electorate; and they have, I think, misjudged the MPs whom that electorate returns.

Henry Newman: May’s deal could be saved with prompt improvements – such as a Stormont lock

Giving Northern Ireland a say over the introduction of new EU laws would at least introduce a measure of democracy into the system.

Henry Newman is Director of Open Europe.

Last week, I set out how the Prime Minister should seek improvements to the Brexit deal before Sunday’s Brexit summit. She got halfway there. On the Political Declaration, she succeeded in substantially improving the document – achieving a clear choice between a Canada plus arrangement, and a closer Chequers minus plan, with Canada plus as the default. However, she did not secure changes to the Withdrawal Agreement. The ineluctable problem she now faces is that when Parliament rejects her deal on the 11th December she will have a tough choice: seek further changes in Brussels or prepare for No Deal.

Both the UK and EU will be extremely reluctant to change agreed texts, but they may be left with little alternative if Parliament says no. We have been here before – David Cameron’s deal worked in the theory of Brussels, but fell apart on contact with Westminster politics. Theresa May’s deal is actually better than I had expected in various ways. Yet even in areas where she has secured victories, Downing Street is failing to cut through noisy cries of betrayal. And because MPs have begun to doubt her motives, the Prime Minister faces an uphill battle to explain how the deal would work.

The most egregious part of the deal remains the Northern Ireland backstop. Yet the only path to a Brexit which certainly avoids a backstop is not Norway plus or Super Canada but No Deal. Those demanding that the Prime Minister simply insist that she won’t accept a backstop haven’t paid enough attention to Brussels. And it’s far from clear that changing Prime Minister would make anything easier. It would probably further radicalise the Commission against softening its position.

But without changes the deal seems certain to fail in the Commons. Since the Cabinet meeting which first approved this divorce deal on the 14th November, there has been disagreement amongst May’s inner circle as to whether to seek further changes. Her senior team tell me that the EU is not going to start the negotiations all over again. Yes. But that’s not quite the same as saying that, in extremis, modest but material changes are off the table. European diplomats have no real plan B, but then neither does the Government – other than No Deal.

One of the changes I’ve proposed to the backstop is a Stormont “lock” – a mechanism for consulting the Northern Ireland Assembly and Executive, the institutions of the 1998 Belfast (or Good Friday) Agreement, about new regulatory barriers within the UK. Back in December both the UK and EU agreed a Joint Report, paragraph 50 of which noted that in the backstop “the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland”. For some reason, this dropped out of the final text. It should be re-introduced.

How would a Stormont lock work? The purpose would be to create a mechanism to question new EU acts – it would specifically address the flow of new rules, not the stock. It would only apply if the UK was in the backstop, and if the Assembly was restored. It could be designed so it gave an option to vote against a new rule, rather than requiring affirmative votes on every new rule.  You could require a strong majority vote to trigger the lock (although that could entail reforms to the petition of concern process).

There are already areas where there are different rules in Northern Ireland compared to the rest of the United Kingdom – for example on same-sex marriage and abortion (although Northern Ireland could choose to align with Great Britain in those areas). In future, if the backstop was in place, there might be areas where it made sense for Northern Ireland to choose to diverge from Great Britain, and instead align with EU rules covering the rest of the island of Ireland. This would likely be the case, for example, on rules affecting the single energy market or agricultural standards.

What is not acceptable is for new rules and regulations to be imposed over the heads of Northern Ireland’s elected representatives without an ability to say no. That’s not devolution, and it’s not democratic. And it’s not clear how imposing rules on Northern Ireland would be compatible with the European Convention of Human Rights. The landmark Matthews v United Kingdom (1999) case found that people have to have representation in a legislature enacting laws. Karen Bradley, the Secretary of State for Northern Ireland, recognises concerns about the backstop, saying “rules in Northern Ireland cannot change without rules changing either here in Westminster or Stormont. They cannot be automatically changed by another third party” [i.e. Brussels].

So what would happen if Stormont voted against a new EU rule? The issue would be referred to the Joint Committee comprised of UK and EU representatives. Under the existing terms of the Withdrawal Agreement, the Joint Committee already has to agree every new EU ‘act’ which would apply to Northern Ireland. So under Theresa May’s deal the UK can already resist new regulations, directives and decisions from the EU which would have to be applied in Northern Ireland. But an explicit role for Stormont should be added.

If the Stormont lock was engaged the Joint Committee could take several possible steps. One would be just to not apply the new act in Northern Ireland (nor, of course, in the rest of the United Kingdom) while working to resolve any issues this created. Another option would be, with the consent of the UK Parliament, to apply the act across the whole UK (meaning Westminster voting to keep the UK in step with the EU). A third option could be for the the Irish Republic to decide to seek a derogation from the EU for that new act. There are already existing EU precedents for this – for example, Malta has provisions limiting the purchase of second homes.

We are now in the unhappy position where the current deal has satiated the concerns of the nationalist community and the Irish Republic (who nonetheless remain opposed to Brexit), but has left Unionists (the DUP, the UUP, and others) unhappy. This is highly problematic because the deal could put at risk the principle of consent which was at the heart of the Belfast Agreement – precisely the agreement that the EU was claiming to be so concerned to protect by creating the backstop in the first place. A Stormont lock would go some way to addressing these concerns.

Gibraltar rocked?

The key question arising from the diplomatic back-and-forth is whether Spain would be prepared to veto a future trade deal.

Theresa May’s concession over Gibraltar does not allow negotiations to be opened between the UK and Spain over which country should have sovereignty over the Rock.

However, the difficulty for the Government is that it could allow such discussions to take place in future.  In essence, it says that Gibraltar won’t be covered by the proposed Brexit deal.  So the Rock won’t automatically be included in any future free trade agreement between Spain and the UK – and may not be at all.

May’s present retreat follows a previous advance.  The Government seems to have pulled a fast one over Spain by doctoring a section of the draft Withdrawal Agreement – Article 184 – to allow the deal to cover exactly such a future trade agreement.  This represented a reverse of the EU’s previous position, and a loss of face for Pedro Sanchez.

So Spain’s Prime Minister cut up rough – threatening to veto not only the Withdrawal Agreement, but Brexit itself. Spain is in no better a position to veto the first than the second: the Agreement and Political Declaration will be approved by majority.  But disharmony at summit level is anathema to the EU.  And so it comes about that May, having apparently got one over Spain, has now backed down.

So far, so meaningless.  The problem for the UK and Gibraltar is that Spain really will have a veto if a trade deal is eventually put on the table.  It could then, if it wished, seek to hold any such agreement up until or unless discussions over sovereignty were opened – which would present a very serious problem for May’s Government, assuming that she and it are still there.

She has been busy covering herself with two statements from the EU27, a letter from the president of the European Council and one from the president of the Commission, all providing assurances about Gibraltar’s status.  On the one hand, Fabian Picardo has rowed in behind the Government.  (He supports the draft deal, and Gibraltar voted Remain.)  On the other, some Brexiteers are claiming a sell-out.

The key question arising from all this is: were Sanchez’s protests about more than face-saving?  How likely is it that his government, or a future Spanish one, would seriously imperil British-Spanish relations over the future of the Rock?  There is simply no way of knowing.

Keep your eyes fixed on the Withdrawal Agreement, which would be backed by law. Not on this Political Declaration. Which wouldn’t.

A staple of stagecraft magic is misdirection. While his audience is gawping at one thing, the magician is swiftly doing another. So it may be now.

Bobby Locke, the South African golfer, said that “you drive for show but you putt for dough”.  At first glance, what may be true of golf is true of the proposed Brexit deal’s Political Declaration, now expanded from a slim seven pages to a slightly longer 26.  By contrast, the Withdrawal Agreement runs to 585 pages.

This points to the essence of the proposed deal. The Withdrawal Agreement is for dough.  In other words, it means business: it will be legally enforceable, if agreed to.  The Political Declaration, by contrast, is not.  It is, ultimately, for show.  “Ambitious, broad, deep and flexible partnership…common European heritage…shared values…unique context”: all the cliches of official-ese are present, but the Declaration, unlike the Agreement, will not be enforceable before a court.

For this reason, we won’t probe it at the length we afforded to the Withdrawal Agreement.  Instead, we return to a core observation we made about the latter.  The UK has scored some tactical wins in these negotiations, some of them with striking implications, but the EU has won the strategic victory.  From the start, it has offered a choice: between a kind of Norway-plus-customs union option, or a sort of Canada-minus-Northern Ireland option.

In sum, the Declaration reflects this offer.  Considered as a whole, the deal will have the effect, if Parliament approves it, of turning the Conservative Party into a kind of pushmepullyou, as James Forsyth suggests today.  On the one hand, its Eurosceptic instincts will pull it in the direction of the Canadian-type option; on the other, its Unionist beliefs will push it towards the Norwegian-shaped one – since most Tories will not want to widen the customs and regulatory gap which the Agreement opens up between Great Britain and Northern Ireland.

True, there is a minority strand in Conservative thinking that would let the latter go its own way.  But it is not possible simply to hive the province off, even were this desirable (which it isn’t): the preservation of Northern Ireland in the EU’s customs and regulatory arrangements, without the province’s elected representatives having a future say in them, would have dangerous knock-on effects on the British Isles as whole.  Furthermore, the implications for Scotland are considerable – and baleful.

British statecraft has kept the Union together for over two hundred years.  No Tory MP should vote for a deal that endangers it, as this one does.  And while the wins for either side the EU in the Agreement are bankable, those in this Declaration are not.  Take fishing as an example.  On the one hand, the Declaration envisages Britain as an independent coastal state, in control of its own waters.  On the other, it envisages a new fishing agreement with “access to water and coastal shares”.

As with immigration, this represents change in principle (though how much in practice is being disputed).  But there is a difference: migration is essentially covered by the enforceable Agreement, not this unenforceable Declaration.  It is otherwise with fishing.  Similarly, the Declaration contains some warm words about finding “alternative arrangements” to the backstop.  But, again, the backstop is set out in the Agreement; this nod to MaxFac is restricted to the Declaration.

We see little in the last to keep alive the Chequers dream of a separation between manufacturing and services.  Nor does it envisage trade arrangements which end friction rather than minimise it.  The implication is that the less friction in trade the UK wants, the more EU alignment and migration it must take: that’s the theology of the four freedoms at work.  The deal as a whole separates these slightly, but the EU will resist them coming apart.

A staple of magicians’ stagecraft is misdirection.  While his audience is gawping at one thing, the magician is swiftly doing another.  So it may be with the Declaration.  Even as politicians, analysts and journalists prod and poke at it, don’t rule out, during the run-up to this weekend’s summit, a sudden flourish on the Agreement – a dramatic concession on the backstop (say), whether substantial or meaningless, aimed at collapsing backbench resistance to the deal.

Finally, we apologise to Locke.  We said that at first glance the Declaration is for show, and so it is.  But on reflection, like the Agreement, it’s for dough, too – all £39 billion of it.

David Shiels: Technological solutions. A greater role for the Assembly. How May could yet win over the DUP.

Rather than going over the heads of the Unionist parties, the Government needs to find a way to address their concerns.

Dr David Shiels is a Policy Analyst at Open Europe and also works on contemporary political history.

It is not a happy time for the relationship between the Conservative Party and the DUP. The latter’s decision to abstain on a number of amendments to the Finance Bill and to vote for one Labour amendment on Monday was intended to send a ‘political message’ to the Government. The DUP has stopped short of formally withdrawing from the Confidence and Supply arrangement, but has arguably broken it. The party’s MPs make no secret of their desire to see a change in the Government’s direction – hence the declaration that the agreement is between parties, rather than between leaders. At a time when many Conservative MPs are in a rebellious mood, DUP MPs may feel that they have some leeway in terms of their commitments under that agreement anyway.

While the DUP’s opposition to the existing Withdrawal Agreement at Westminster is steadfast, the party is coming under increasing criticism for its attitude towards Brexit in Northern Ireland. Business leaders there have taken the almost unprecedented step of coming out against the party on a major policy issue, indicating their support for the Withdrawal Agreement. Importantly, the Ulster Farmers’ Union has also come out in support of the Agreement, whereas it had stopped short of taking a Remain position during the referendum in 2016. This is particularly significant, given the perception that many Unionist farmers privately supported Brexit.

After many months of saying as little as possible about specific arrangements for Northern Ireland, the Government also seems to have found its voice. Karen Bradley’s speech in Belfast on Monday – her first major intervention on Brexit – was a robust defence of the Agreement, and a signal that the Government is prepared to bypass the DUP and appeal directly to public opinion. If anything, the DUP is likely to harden its opposition to the Agreement in the coming weeks, but there is a growing sense that the party has been caught on the back foot over the issue. The Ulster Unionist Party leader, Robin Swann, has accused the DUP of being ‘asleep at the wheel’, and has suggested that the party has ‘failed in their primary duty to protect the integrity of the Union and its people.’

Meanwhile, the pro-Remain parties in Northern Ireland have put forward a convincing case in favour of special treatment for the region. Although Sinn Fein MPs do not take their seats at Westminster, the party has claimed that they are standing up for their constituents where it matters – in Dublin and in Brussels. The Government’s preparedness to breach the DUP’s ‘red lines’ over the backstop helps Sinn Fein to make their point, which is that Northern Ireland’s MPs have little influence anyway.

At the same time, there are many other voices in academia, the media and business who argue that the DUP has been inconsistent in its opposition to special treatment for Northern Ireland – pointing to different rules on abortion, same sex marriage and a range of other issues. The argument that ‘Northern Ireland is different anyway’ is persuasive. By seeking to make any GB-NI checks as unobtrusive as possible, the EU has persuaded many that it has gone some way to meeting Unionist concerns. The view that the backstop offers Northern Ireland the ‘best of both worlds’ is widely held and, according to reported comments by the Prime Minister, the EU is concerned that the arrangements would give Northern Ireland a competitive advantage.

The Irish Government also insists that it is not seeking to open up the question of Northern Ireland’s status as part of the United Kingdom – even though Unionists believe the backstop threatens to undermine Northern Ireland’s relationship with Great Britain within the United Kingdom. The latter’s objections to the backstop also revolve around the democratic and constitutional implications of Northern Ireland potentially being subject to EU rules in the longer-term, without the ability to amend or refuse them. This point has been hard to get across to audiences in Great Britain and there is a feeling that the party had taken for granted that its objections to the backstop would be understood.

There remains, of course, a possibility that the DUP’s opposition will see off the backstop, either now by helping to defeat the Withdrawal Agreement in Parliament or at a later date, during the negotiations on the future relationship. Although the party is unhappy with things as they stand, its persistence has at least ensured that some of the more objectionable aspects of the EU’s February proposal have been removed. There may yet be some way that the Government can secure further assurances for Northern Ireland, either in terms of beefed-up commitments to find a technological solution for the border, or by securing a role for the Northern Ireland Assembly as a democratic lock on the backstop. For the DUP, there remains the ‘nuclear option’ of triggering a confidence vote in the Government, or coming as near as they can to doing so in order to persuade Conservative MPs to change their leader.

It may be that the DUP will be proven right in the end – that influence at Westminster does matter and that Unionist objections to the backstop cannot be overridden. At the same time, it seems unlikely that Theresa May or any other Prime Minister could secure any fundamental changes to the backstop. Rather than going over the heads of the DUP and the other Unionist parties, the Government needs to find a way to address their concerns and bring them along as far as possible. This is necessary not just to deliver the Agreement through Parliament, but also because any deal that is seen as a defeat for Unionism will make it harder to restore power-sharing in Northern Ireland. At this stage, too, DUP MPs need to think about what sort of arrangements they can live with, rather than re-opening the whole negotiation. They have grounds for complaint against the backstop as it stands, which remains objectionable from a Unionist point of view. But the alternative of No Deal would be extremely hard to defend in Northern Ireland, given the short-term consequences of such an outcome.

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: May – The backstop is like an insurance policy

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