It seems fair to say that the draft withdrawal agreement agreed between negotiators and published this week has not been universally welcomed. In particular the Protocol on Ireland/Northern Ireland has been the source of much criticism. In a detailed briefing by the Institute of Economic Affairs, I described how, if it were to come into effect, this Protocol would effectively rule out an independent trade policy for the UK, and would throw up serious trade barriers between Great Britain and Northern Ireland.
It’s worth reminding ourselves of why this Protocol was thought to be necessary. Our government agreed in December last year to guarantee that there would be no physical infrastructure or related checks and controls at the border between Ireland and Northern Ireland. In order to achieve this they conceded that, unless they could put forward alternative solutions, Northern Ireland would stay in alignment with the rules of the customs union and single market in all areas necessary for north south cooperation, the all-island economy and protection of the Belfast (“Good Friday”) Agreement. It was also stated in the Joint Report that the UK would not allow new regulatory barriers between Great Britain and the United Kingdom. The EU’s interpretation of that was a draft agreement under which, “unless and until” other terms were agreed that would meet the objectives for the Irish border, Northern Ireland would remain in a customs union and regulatory area with the EU. This is what the backstop is.
The facilitated customs arrangement and common rulebook of the Chequers plan were an attempt to provide the alternative arrangement that would mean the backstop would never be activated. When Chequers was roundly rejected by the EU, and the Prime Minister declared after the Salzburg summit that no prime minister could accept the EU’s terms, the negotiators went back into their tunnel and reformulated the backstop so that Northern Ireland and the rest of the UK would be in the same customs territory, and Northern Ireland would retain EU regulations on goods “unless and until” a new agreement could be reached. Mrs May is now satisfied that this is something that a British prime minister can sign up to.
Some of us have long been convinced that keeping the Irish border free of infrastructure could be achieved by way of legal, technical and technological solutions. European customs experts Hans Maessen and Lars Karlsson have confirmed to the Northern Ireland Affairs Committee that this can be done. But the EU negotiators and the Irish government have been adamant that the requirements of EU law mean that only a customs union and regulatory harmonisation on goods can achieve this, as even with a free trade agreement with zero tariffs and quotas, the risk of goods that have not been duly declared for customs purposes or that do not meet EU regulations might cross the border cannot be tolerated. Except, it now transpires, for fish. Because under article 6 of the Protocol, fisheries and aquaculture products will be excluded from the customs union arrangements (and therefore fish caught by British and Northern Irish boats would be subject to tariffs) unless an agreement between the UK and the EU on access to waters and fishing opportunities is reached. But by the EU’s own reasoning, the exclusion of even one product would require a full customs border, to ensure that that product isn’t smuggled in undeclared. Now Irish government and EU negotiators could be forgiven for assuming that the British negotiators will concede on this as they have on almost everything else, and sign away fishing rights to the EU. But they might not, and then we would need a hard border wouldn’t we, and the Protocol would be for nothing? Or could it be, that for fish, as for everything else, it is possible to manage a customs border without physical interventions, and the EU is prepared to take the risk of having to do so in order to leverage access to UK territorial waters.
It is often overlooked that as well as being by far the biggest market for goods sent outside Northern Ireland 64% of goods brought into Northern Ireland come from Great Britain, with 12% from Ireland and 59% of its external sales are to Great Britain, as against 12% to Ireland. In seeking to preserve frictionless trade with Ireland, the Protocol, if it were to come into effect, would introduce costs and formalities for the vastly more significant trade within the UK. As former Brexit minister Suella Braverman noted in her resignation letter, customs professionals are clear that this could have been avoided. It’s time to start listening to them.
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The 1998 Good Friday Agreement (GFA) is constructed on the principle of consent, including;
- Consent of the British Government that a part of its territory, Northern Ireland, will be subject to special arrangements, including those with the Irish Republic;
- Consent that any change in the constitutional position of Northern Ireland can only occur if desired by a majority;
- Consent by the Nationalist community there to the present constitutional status, along with a mechanism to change that status, if a majority so desire; and
- Consent of the Northern Ireland Assembly to any alteration in the cross-border arrangements
All these interlacing sets of arrangements are delicately balanced and were arrived at after many years of painstaking discussion and compromises. The Agreement represented no single party or side’s ideal but there was enough consensus there to achieve a durable settlement on the basis of consent.
The hardline demands of the EU today, essentially driven by the Government in Dublin, are light years away from the approach which characterised that of former Taoiseach Bertie Ahern in the late 1990s and made the Agreement possible. The Agreement was designed to usher in a new and constructive era of mature relations between the UK and Ireland. We were to become close partners over a whole series of areas.
The reaction of the authorities in Dublin to British efforts to negotiate a sensible and smooth Brexit has been the antithesis of the process that led to the GFA. Instead of the two Governments’ commitment to “develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours “, there has been a stubborn resistance to accepting the UK decision to leave the EU. This has been alongside a strong alliance with implacable Remainers in London. This has made the Brexit process much more difficult and fed into the agenda of those in Brussels, and also Paris, who are determined to make an example of Britain for daring to leave their club. It is completely contrary to Ireland’s real national interest and the spirit of the GFA.
This hardline policy from Dublin is now endangering the entire GFA, which can only function as long as the participants in that Agreement are willing for it to do so. Demanding that Northern Ireland is detached economically from the rest of the United Kingdom, without the consent of the population, carries the danger of strongly alienating one side of the community there. Frustrating the UK’s efforts to come to a balanced accommodation with Brussels will inevitably lead to some in London questioning the foundation on which the GFA is based, trust that Ireland and the UK can be close and mutually supportive allies. There is also the damage that is being done to community relations in Northern Ireland.
The GFA recognised that cross border co-operation was dependent on consensus north of the Border. Meetings of the North-South Ministerial Council always had at least one Minister from either side of the communal divide; and the GFA specifically states that any further development of North-South arrangements is “to be by agreement… with the specific endorsement of the Northern Ireland Assembly and the Oireachtas (Irish Houses of Parliament)”. By seeking to bypass the consent of one side of the community, the Irish Government is deepening division and undermining the whole basis on which the GFA was built. This position is developed further in our recent Policy Exchange paper The Irish Border and the Principle of Consent.
The upholding of the GFA is, of course, a laudable aim and is shared by authorities in Dublin, Brussels and London. The maintenance of the present mutually beneficial arrangements on the Irish border is also very desirable. The present policy course by Dublin is unlikely to achieve either. By ignoring the essential element of consent, the Irish Government is placing the progress of decades of good work in jeopardy.
There needs to be a new British/Irish initiative to break the present logjam by making a declaration that the future of the border will not be used to stop the signing of a Withdrawal Agreement. Both the EU and the UK should undertake to use their best efforts to preserve all existing measures to secure an invisible border and to preserve all existing measures of cross border co-operation under the aegis of the GFA. This would allow Brexit to proceed in an ordered manner and the two-year transition period to kick in. The future trade talks would hopefully achieve the above aspiration.
The alternative – a continued impasse, economic damage and resultant ill feelings all round – is in nobody’s interest.
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So here we are in the last days of the negotiations. Our Government stands on one side of a rhetorical gulf, terrified of No Deal and having made no significant preparation for it, its finest minds baffled by the impossible Irish Rubik’s Cube constructed for it by the EU.
On the other stands the EU, sure from the outset that the UK would, in its delicate phrase, “take dictation” and now convinced that the strategy will pay off. No doubt the British officials leading the negotiations are assuring the Government that a deal can still be pulled off.
But what a “deal” it will be: a binding treaty in which the UK gives away large amounts of money and what seems to be a perpetual lien on Northern Ireland and in exchange gets an expensive “transition” period (with an option, it seems, to pay more for an even longer one) and a non-binding “framework” (possibly only a few pages long) that will guide the trade talks we will begin (but can hardly hope to conclude) in the never-ending “transition” period. During that “transition” we shall be fully subject to EU law but have no representation in its legislature (in possible contravention of the European Convention on Human Rights, but what the heck).
This will be mendaciously described by some as a “good deal for Britain that delivers the referendum result” and the Government will set out to frighten and cajole MPs of all parties into supporting it, with the clock ticking and the fanciful “cliff-edge” just a short hop down the road.
It is a scandal, really. But is the alternative “crashing out with no deal”, as some put it? No. It is still possible for the UK to take back control of the negotiations and achieve a successful and workable Brexit. But to do that means being willing to embrace the prospect of leaving without a trade deal. And it requires a proper understanding of what the EU intends the Irish backstop to achieve.
Our politicians have largely failed to present the backstop to us in its proper light. They say it is a transitional measure, one that will cover a gap between next April and a new trading relationship that will be so close as to make it redundant. They talk freely therefore of an “end-date” to the backstop, anticipating that close relationship as permanent.
But the EU perfectly understands that, once we leave the EU, there is nothing they can legally do to stop us from diverging, piecemeal or suddenly, from our new trading relationship. Michael Gove has told them that is exactly what we intend to do, after all. And if we do that, they may feel forced to erect a border on the island of Ireland to “defend” their Single Market. They want a guarantee that they can never be obliged to do that.
So what the EU is seeking in an Irish backstop is not a transitional or temporary thing. It has to be permanent (“workable, enforceable and all-weather”, as Michel Barnier put it recently, “all-weather” being the new euphemism for “permanent”). It will not be effaced or rendered null by a future trading relationship. It is what it says: a backstop, a perpetual insurance policy ensconced in international law that will come into play if ever we want to change our future trading arrangements in a way that could be judged by the EU to necessitate a “hard” land border between the UK and the Republic of Ireland. The EU thinks they have made this sufficiently clear and they look in bafflement at British interlocutors when they say there must be an end-date to the backstop!
In short their view is that Great Britain (not the United Kingdom) can strike any reasonable trade deals it can manage, with the EU or with other countries, but that, if we do so, we must leave Northern Ireland behind in the Customs Union and large parts of the Single Market, permanently deprived of a say in substantial parts of the laws affecting it, and with a goods border in the Irish Sea.
And since no British Prime Minister will ever propose abandoning Northern Ireland (unless it freely and lawfully chooses to join the Republic under the terms of the Good Friday Agreement), the whole UK will be trapped in perpetual subservience to the EU, tied to their rules and laws and having no say in them. That is what signing it means. Like a virus, the backstop may lurk in the marrow for many years unnoticed, but it will pop out if ever we seek to make a real break for freedom. Properly understood, it destroys the notion of some Brexiteers that surfaced in mid-year that we can “get out and fix it later”. We can’t fix it later: not while maintaining our territorial integrity.
If that is the price of a “deal”, clearly we must go for No Deal. But there are in fact two deals: a Withdrawal Agreement, as envisaged by Article 50 and a future trading relationship, formal talks on which will not begin before we leave. We would do well to split them. We can certainly offer a Withdrawal Agreement acceptable to us, but uncoupled from a deal on the future relationship.
Old-fashioned diplomats, going into negotiations, always sought to avoid being in the position of the party seeking something: the demandeur in diplomatic parlance. Our weakness in the negotiations is that we are desperately seeking something and the EU, through canny sequencing of negotiations (in which we lazily and stupidly acquiesced), has managed to make out that it is not. The only way to break out is for us to cease to be the demandeur. And the only way to do that is to embrace leaving on WTO terms and be willing to do so.
What we need to say now to the EU is that we no longer wish to discuss our future relationship as part of these negotiations. We are under no legal obligation to do so. We will have the default relationship that any independent country has with the EU, just like the USA and many other countries do. But we will sign a Withdrawal Agreement that will involve our paying our dues and agreeing citizens’ rights and the other administrative matters that it has suited both sides for practical reasons to include to date in the draft Withdrawal Agreement.
Our proposed Withdrawal Agreement will also contain a promise by both sides to use best endeavours to have a minimal Irish border and will remit the question of practicalities to technical talks outside the Article 50 process. In effect, we will offer the EU money for their coffers and stability for their and our citizens. We will also recognise that underlying legitimate Irish concerns about the “border” are more fundamental issues about the economic and social future of Ireland and we shall offer to work together to address those.
Our proposed Withdrawal Agreement will not include a “transition” period. But we will offer more money should the EU agree a strictly time-limited one, concluding in December 2020. Both sides can use this to prepare in more detail (if needed) for trading on WTO terms.
It is an offer that will be understood by Parliament and the British people as proposing an exit that is neither “disorderly” nor “chaotic”. With luck, it will maintain a smidgeon of goodwill with the EU and allow closer relations to be rebuilt over time. Crucially it will preserve the independence and the territorial integrity of the UK.
The choice will then be for the EU to accept the proposal or to invite us to leave with No Deal. Our offer will remove EU leverage from the negotiations, since if they refuse it, we will simply leave it on the table. They may come round one day and in the meantime they will look wholly unreasonable, to the world and to their own citizens. And we will be out.
Of course, as I say, this does mean we would leave on WTO terms. But, if the EU decided to accept our payment for a transition period, it is more than possible that a working trading arrangement, if not a full all-UK/EU Free Trade Agreement, could be worked out in that 22-month period. However, we would not be seeking that: we will no longer be the demandeur.
The art of leadership, if you don’t know the answer to the question, is to change the question. That is what the Government needs to do. But to do so, we must be seeking nothing, and so remove the EU’s negotiating leverage.
Here, therefore, is the letter Mrs May should now write to Mr Barnier:
We wish to take a new approach to the negotiations surrounding our departure from the EU.
The UK will cease to be a member state on 30th March next year. We no longer seek to conclude a framework agreement with you on our trading relationship with the EU after that date as part of the current negotiations. Nothing in Article 50 requires us to do so. This will mean a degree of disruption to both of us, but we will cope and in due course we will, as separate states, start to repair the web of relationships that geography and mutual interest imply between two neighbouring but independent entities with so much in common. But it is clearly the case that we find it impossible to agree those things now in a way acceptable to both sides, so we need to let time and good sense take their healing course.
As a responsible state, however, we are willing to enter into a Withdrawal Agreement as contemplated by Article 50 to cover matters of common interest relating to our departure in an orderly way and on a mutually acceptable basis.
The Withdrawal Agreement we propose will cover:
- The orderly assignment of assets and liabilities between us, to be assessed and adjudicated by an impartial, independent body;
- The rights of EU citizens resident in the UK and of UK citizens resident in the remaining EU states, though with no role for EU law within the UK beyond an eight-year time limit;
- An agreement to work together in good faith outside the Article 50 process to establish and implement the minimal proportional customs arrangements on the land border between the Republic of Ireland and the United Kingdom consistent with the status that will subsist between us as “third countries”; these discussions will be undertaken by competent technical officials from the United Kingdom, the Republic of Ireland and the EU and, in our view, will build on technological monitoring, electronic filing and remote enforcement. The shared objective will be to have as “invisible” a border as can be agreed; and
- Other matters of a practical character already agreed between us.
We note that the current draft Withdrawal Agreement includes payments by the United Kingdom covering our budget contribution during an implementation or transition period of some 22 months from next March. These payments would no longer form part of the Withdrawal Agreement we propose unless the planned implementation or transition period were retained. The United Kingdom would be willing, however, to make those budget contributions if the implementation or transition period were retained on a basis fully consistent with the European Convention on Human Rights and we believe it would help minimise disruption for both parties, should that be agreed.
We are conscious of our legal and constitutional responsibilities under the 1998 Belfast Agreement and are fully committed to their fulfilment. Outside the Withdrawal Agreement, but alongside it, we therefore propose to work closely with the Irish Government and all communities on the island of Ireland to ensure that the legitimate concerns and aspirations of all communities embodied in the Belfast Agreement remain fully credible after Brexit. The assistance of the European Union in facilitating those discussions in support of the peace process would, of course, be welcome.
We hope you will accept these terms. If not, we will, if so obliged, proceed to leave in March without a Withdrawal Agreement.
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