Heading for no deal

The proposed deal could be just about acceptable, if certain crucial amendments were made. In its current form, it is not acceptable. 

The deal is unacceptable because it imposes onerous and unequal terms on the UK, in the form of the backstop, while the pledges contained in it to avoid the backstop coming into force, or to end it if it has already come into force, are rendered potentially meaningless by lack of detail and clarity as to how that might happen, and how the parties could enforce the pledges agreed to.

Amend the backstop text

The text of the Northern Ireland protocol makes positive noises about avoiding a backstop. The EU and UK ‘shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part’ – the boilerplate ‘best endeavours’ has been held up by the government as a negotiating triumph, incidentally. 

Article 2 of the Protocol makes provision for a subsequent agreement that will supersede the backstop agreement.

There is also, at article 20, a review mechanism that would allow both parties to assess whether (presumably following either a trade deal, or the introduction of sufficiently unobstrusive border surveillance technology) the backstop could be ditched:

If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons. 

The Article 1(3) objectives are broadly worded:

• to address the unique circumstances on the island of Ireland
• to maintain the necessary conditions for continued North-South cooperation
• to avoid a hard border 
• to protect the 1998 Agreement in all its dimensions.

After the giving of notice, the Joint Committee of UK ministers and their EU counterparts will meet to discuss it. The exit from the backstop would work as follows:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement [duty of full mutual respect and good faith], the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

As nice as all of this would be nice if it came to pass, the process is laced with ambiguity.

There are no specific tests for what adequate protection of the Good Friday Agreement should look like. When would a border be too hard for the purposes of article 1(3)?

Because no criteria for satisfying the ‘unique circumstances on the island of Ireland’ are specified, the parties in turn are not obliged to acknowledge such sufficient steps as might be made. Say the text had instead specified, for instance, a degree of border facilitation that both parties agreed would obviate the need for a hard border. Had that been the case, then if the UK were one day to propose a demonstrably and suitably viable facilitation scheme, the EU would be bound to accept it as a ground for disapplying that part of the Protocol. It would be held to its commitment.

What we have instead is a wide scope for one of the parties to dismiss resolutions proposed by the other party, even if those steps might objectively lead to the outcome. The wording leaves plenty of room to reject any argument that the standard set by art. 1(3) has been met – ‘border would still be too hard’, ‘the GFA protection proposed isn’t adequate protection’ etc.

The commitment to negotiate with ‘full mutual respect and good faith’ would be a weak obstacle to any unreasonable attempt to defeat the exit provision. Bad faith is hard to prove, however blatant it may feel, and given that exit from the backstop will require consensus, it would be a nuclear button – good luck getting agreement after accusing your negotiator of acting in bad faith. Criteria of adequacy would be a much more effective safeguard to enforce reasonable behaviour among the parties – no one gets hurt by the accusation they have misconstrued the definition of when border facilitation is adequate.

This is anyway all rather academic. As weak a protection as article 5 is, there are no signs that such protection as it offers could be enforced. There is no clear enforcement mechanism for the backstop.

We know that under article 8 of the Protocol, the UK may not seek arbitration on matters of mutual recognition as they apply, under the backstop, to Northern Ireland.

We know too that article 15 rules that the Protocol, inasmuch as it touches upon EU law, is to be interpreted in strict conformity with EU case law – stricter conformity, that is, than will be imposed on UK judges interpreting the Withdrawal Agreement after the end of the transition.

But in the event that EU negotiators acted in outright bad faith, in breach of the agreement, then we don’t know precisely how the UK could force the EU to stick to what it agreed. Inasmuch as we can guess how it would be fudged, the outcome would be likely to be disproportionately bad for the UK. Enforcement would be delivered either through the provisions of the Withdrawal Agreement proper – that is, under the indirect jurisdiction of the CJEU – or under the direct CJEU jurisdiction provided by the Protocol. 

In other words, the EU’s own court will be likely to decide the matter – a miserable travesty of basic fairness. Nor, note, is this a Brexiteer fetish – both the Law Society and the House of Lords EU Committee advocated strictly neutral arbitration of the Withdrawal Agreement.

The EU’s court will to decide, too, whether in its judgment the UK has merited self-government, or whether it should remain an EU satellite.

The danger here is real, not abstract, not legalistic. It is reasonable to assume – in fact it is almost certain – that despite the joint commitments made to avoid it, the persistence of the backstop will disproportionately favour the EU’s interests. As long as the UK is under it, it will not be able to compete with the EU by adopting a more competitive regulatory regime. Moreover, the spectacle of the UK tethered, humiliated and voiceless will be a useful demonstration to other restive member states of the consequences of trying to leave – rather like the captive foe paraded in the Roman triumph, that reminder of the folly of trying to resist Rome.

The UK will have every reason to escape the backstop, so that it can once again be free to make decisions and regulate its trade according to its own interests. The EU will have good reason to keep it in place for long as it can. 

The UK government must revise the text of the agreement to ensure there will be a fair, clear and objective procedure for balancing, and if necessary ignoring, the competing interests of the EU and UK in this matter, so that the necessity or otherwise of the backstop can be judged according to its proper agreed purpose.

There is, admittedly, an argument from practicality which says that, even if the Protocol could be gamed by the EU, fears about being trapped in the backstop are overblown. It would be such an anomalous, bizarre situation, for an economy the size of the UK to be an EU satellite, that it would prove unsustainable. Even the French – the EU’s Brexit hardliners – are said to have conceded as much.

But that is cold comfort. It would mean the UK would only become a sovereign state, free to determine and legislate for its own interests, when the leading member states decided that we had ‘had enough’, or when the whole thing had become a bit embarrassing. We cannot gamble our future as a self-governing nation, able to act in its own interests, on what Emmanuel Macron thinks reasonable and practicable. It would be simply absurd and demeaning for any nation, whatever its economy, to have its fate determined in that way.

Even if it risks no deal, and even if it takes a change of Prime Minister, the UK must re-negotiate this part of the Protocol and insist on objective tests for removing the backstop, and an independent tribunal to adjudicate on whether those tests have been satisfied. 

Guy Verhofstadt may assert that the text may be amended no more, but this might not be true. It has probably already been butchered by the negotiating process – presumably at some point there were provisions for enforcement in the Protocol, which the EU would only have agreed on the basis (legally unavoidable, they would say) that the CJEU be ultimate arbiter of any aspect touching upon EU law. They may have been subsequently removed when the UK balked, thus leaving the current bleeding chunks. Unilateral exit was never on the cards, even if it was worth a shot.

Indeed the wording of article 20 hardly looks final:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement, the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

That seems to say that the backstop will end when the ministerial Joint Committee decides it can. If so, what will be the purpose of the further ‘recommendations on necessary measures’? Will the backstop actually only cease when those measures are taken? Or will the necessary measures merely be the steps needed to implement the decision taken by the Joint Committee?

Suffice to say, there are good reasons to argue that this text needs further work, in various ways. It cannot be agreed without it.

Ditch the backstop?

Say the UK government convinced the EU to amend the agreement text – would that be enough to make the deal desirable?

No, but might it be tolerable, just about, under duress?

Amending the text won’t remove the fundamental problem with the backstop – that it is virtually guaranteed to deliver a worse trade deal than we would otherwise get. If the EU offered even a very bad deal, which was only minimally better than the backstop, the UK would have no option but to accept it – the alternative would be worse, and we would be bound in international law to accept it if we turned down the initial offer. The UK will have no leverage to push for a deal in its interests. The EU could simply sit mute at the negotiating table, confident that come 1 January 2021 the backstop will be triggered, and the UK will be kept safely in the EU’s regulatory orbit with no say over the rules.

That will always be the case as long as the UK is forced to agree to the liability under a deal – specifically indemnifying Ireland, at great cost, against any harm caused by Brexit – before it receives any commitment as to the benefits. The risk of the backstop could be worth bearing, if the risk could be balanced against the benefits. If the EU mooted a lucrative trade deal, then the UK should reasonably moot putting its money where its mouth is. And if the EU promised, then the UK should also promise.

The sequencing imposed by the EU means that the EU moots a trade deal, in the political declaration, and in return the UK must promise to put its money where its mouth is.

No government should choose to expose to such risk the interests of the country it represents. It’s a quaint idea, perhaps, but I like to think a government would do no less to protect its nation’s interests than a lawyer for his or her client.

The question is – does the UK still have an effective choice, if the alternative is now no deal? 

There certainly was a choice, at one point. The EU’s claim that the backstop was designed to preserve the Northern Irish was either misinformed, or a false pretext, and should have been challenged – no thoughtful, or genuine stance on the Northern Irish settlement could have led the EU to avert discord by preserving one border important to Nationalists, while hardening another important to Unionists. Article 7 of the Protocol shows that the agreement has indeed managed to pay Paul merely by robbing Peter.

One motivation EU leaders alluded to – to champion the Irish dog in the Ulster fight, out of EU solidarity – was also grossly inconsistent with the Good Friday spirit of cooperation.

In less adversarial terms, it was also clear that the seminal form of the backstop, in the December report, was broken-backed and didn’t reconcile the differing aims of the two parties. Both could point to the paragraphs on the Irish border and claim different things. Rather than try vainly to hold the other side to an agreement that either didn’t exist between them, or hadn’t been properly formulated, it would have been much better to accept that they hadn’t managed to nail down an agreement on the first go, and return for a second go.

It is too late now to ask the EU to indulge misgivings that should have been voiced almost a year ago. The only way to reopen the whole issue of the backstop would be to force it open – say if a new Prime Minister took over, extended the negotiating period (no mean feat), and offered the €39bn on condition that the EU agreed to shift the Irish border to the trade negotiations, where it always belonged. It would mean paying a huge amount of money simply to get our negotiating party to do what anyway was merely reasonable and to be expected. Such, however, is the difficulty of negotiating with a hegemon whose actions are justified not by what is reasonable, but by the extent of its power.

In truth, this looks very unlikely. It seems the UK, if it accepts the deal at all, will have to accept it with the backstop, accept the consequences of its failed approach to negotiations, and see what chances the future will hold.

Who’s to blame for this?

Literally all concerned. 

The terms of Article 50 restricting negotiations to two years certainly put excessive pressure on decisions that needed to be made carefully. It’s hard to blame the drafters for that, and still less likely that they contrived it to pressurise any member daring to leave, given that it was drafted either in the expectation that it wouldn’t be used but would be a symbol of the enduring sovereignty of member states, or in the expectation it could be used as a poison pill for undesirable members. Whatever the intention of the drafters, it is clearly true that the EU used the Article 50 time limit as a very effective tool.

The time pressure would not have been felt so keenly by the UK if it had delayed triggering Article 50 in order to work out what it actually wanted from negotiations and how it would approach them. The longueurs after giving notice, when the cabinet seemed to have a settled direction on nothing, were shameful. 

Advice that is wise after the fact, questioning why the UK did not do more fact finding before rejiggering Article 50, for instance through a Royal Commission, tends to be conveniently forgetful of the pressure that was on May at the time. Not least was the unwelcome and unexpected pressure created by the insistence of some Remainers that they would keep campaigning against a referendum result that, for them, had decided nothing. Maybe my own memory is faulty also, but this seemed to drastically increase the sense that Brexit urgently had to be enacted lest it be strangled at birth.

This also highlights the main culpability of Remainers, or at least a significant number of them. The refusal to accept the result (from the start – Gina Miller admitted she called her lawyers on the morning of 24 June 2016) was senseless, and the prime (though not the only) cause of the divisions that followed. Fixation on the weak legal status of the referendum decision blinded them to their blunder – what made the referendum legitimate was the understanding that the result would resolve the argument for the nation as a whole. The shared assumption that, whatever the argument and division leading up to the vote, we would collectively follow where the result led. Rejecting that shared, underpinning assumption pulled the rug from under everyone’s feet. The keystone was the certainty that the result would decide the matter – something Remainers were anxiously certain of in the run up to the vote, or else what were they so worried about? They removed that keystone, and cannot blame others because everything fell apart subsequently.

Leavers on the whole won the argument about the big political ideas, but left it far too late to grasp the policy details (hence the backstop disaster). Remainers grasped the details, but still don’t seem to understand the politics.

It is also fair to say that Leavers were wrong to predict that the EU would prioritise its trade interests and be quick to make a deal with the UK. Remainers rightly point out the hypocrisy of Leavers lambasting the EU for its rigidity and ideology, and then staking the nation’s future on the EU’s pragmatism.

There are two saving graces, however. First, Leavers cannot be damned for failing to predict an EU response to Brexit that was not just rigid and unpragmatic, but also self-harming. The willingness of the EU to acknowledge its fear of the weakness of its union, and the fickleness of its members, has been extraordinary. The aversion to a successful Brexit betrays, quite openly, a misgiving at the heart of the EU that membership might not be the best choice for members, and that alternatives to the union might better realise their ambitions and protect their interests. The clumsy and reckless use of the term ‘cherry-picking’ – which EU leaders seem to think is rather clever – only reveals that some of the central institutions and policies keeping the union together are undesirable mere gristle, which members tolerate in return for the cherry of free trade. Reducing EU membership to this transactional basis is suicidal folly – what basis for the union remains once members realise that the world outside the EU (and it does exist) can offer transactions with better cherry to gristle ratios?

The EU’s response to Brexiteers’ appeal to look to its economic interests was unpredictable – it disclosed the unbridgeable gulf at the heart of the project, between the internal perspective of the cadre pushing for ever closer union in itself, and the external perspective of the members, for whom the EU is, fundamentally, a cost-benefit transaction and possibly not a very good one.

As with the suicide bomber, how can you grapple with a foe who doesn’t care about his own life or safety?

The second saving grace is that Remainers may indeed justifiably lambast Leavers for a naively optimistic view of the pragmatism and flexibility of the EU. It has proved a doctrinaire, hegemonic and inflexible institution. However the Remain argument must continue ‘… and we should continue to give this institution supreme power over our lawmaking and make it the guardian of our prosperity.’ Good luck to anyone chancing their arm with that argument.

Finally, the past two years has shown the poverty of the EU’s technocratic approach. The bankrupt ideology of the ‘landing zone’ – a term much beloved of trade wonks – saw the EU use the negotiating process to gradually close down all of the UK’s escape routes, until there was only one landing strip remaining, and that was precisely the spot where the EU wanted us.

Once the technical work of marking out the landing zone had been done, the business of landing the deal politically was merely adventitious. The space within the political argument would take place had been marked out by the technocrats.

The problem with narrow landing zones is that they tend to make landing a dangerous business. Especially when there are cross-winds – and the political cross-winds in Brexit are fearsome. Whatever difficulties follow from here, including no deal, will be in large part due to the EU’s fetish for expanding the technocratic sphere of influence to the exclusion of political considerations. As the politics of the matter is only temporarily sidelined, not fully suppressed, a backlash is at some point inevitable.

The prevalence of this bankrupt philosophy in the EU project, and the dread of the backlash it will one day unleash, are ample reminders of the wisdom of withdrawing from this experiment.