23 May 2019

Nine words in the Irish Protocol hold the key to Brexit

By Martin Davison

We are quite clearly in the last days of Theresa May. Her Cabinet is fracturing, her would-be successors manoeuvring, and her backbench support shrinking. Meanwhile, the theoretically Brexit-supporting Labour Party simply cannot be lured away from the enticing prospects of an election or a second referendum. And, of course, Nigel Farage’s Brexit Party barbarians are at the gate. And to cap it all, May has now postponed the publication and introduction of her highly optimistic Withdrawal Agreement Bill until after the Whitsun parliamentary recess, yet another humiliating volte-face.

That is the politics, red in tooth and claw. As for the technicalities, much of the focus has returned from the fraught question of the Irish backstop to the exact nature of the future relationship. But the two are closely intertwined. Ironically, if May does somehow, against all rational expectation, eventually get a WAB in its proposed form through Parliament, the future relationship is likely to be very similar to that which the Labour Party claims to want.

The EU’s last word on the agreement it concluded with the British Government is contained in a joint instrument negotiated by the two parties and issued on 11 March 2019. This Instrument explicitly relates to the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland, and is characterised as a “document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement”. In short, it is declared to have “legal force and a binding character”.

The purpose of the Instrument was evidently to reassure the UK Parliament that the EU genuinely wished and intended to “replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing”. And indeed there has been an increasing amount of discussion of ‘alternative arrangements’ ever since May’s deal hit the parliamentary buffers and Brexit had to be postponed.

The joint instrument made clear that establishing alternative arrangements would be a priority, and the aim was to complete it by 31 December 2020, meaning the backstop would not even be triggered. To this end, a negotiating track on replacing the “customs and regulatory alignment in goods element of the Protocol” would be established immediately after ratification of the Withdrawal Agreement. The negotiating track would include “consideration of comprehensive customs cooperation arrangements, facilitative arrangements and technologies”. So far, so good.

But what about the suspicions that the EU would end up scuppering the ‘alternative arrangements’ by arguing that they did not avoid the need for a hard border? Well, the Instrument makes it clear that a systematic refusal to take into consideration “adverse proposals or interests” would constitute a failure to use best endeavours and act in good faith, obligations imposed on the EU under the terms of the Withdrawal Agreement. Moreover, these issues would fall under the dispute settlement and arbitration arrangements stipulated by the Withdrawal Agreement.

Finally, in a bid to satisfy sceptics who might still believe that the EU had no intention of recognising any alternative arrangements that did not effectively prolong the backstop regime, the Instrument stated that the arrangements “are not required to replicate its provisions in any respect”.

On the face of it, that was a pretty significant concession by the EU. After all, their negotiators – with the support of the Irish Government – had consistently argued that a hard border was an inevitable consequence of a new EU frontier between Ireland and Northern Ireland.

The devil, as always, is in the detail. The key phrase in the joint instrument is the innocuous-sounding “…provided that the underlying objectives continue to be met.” This nine-word proviso is in fact critical in assessing the real level of comfort supplied by the Instrument.

Why should it be a problem? Are those objectives not met if the alternative arrangements avoid a hard border?

To answer that question, one obviously has to identify the four “underlying objectives” of the original Protocol.

The first is to address the “unique circumstances on the island of Ireland”, essentially a somewhat imprecise piece of boilerplate. The second objective is to maintain the necessary conditions for continued North-South cooperation. The third is to avoid a hard border and the final objective is to protect the 1998 Agreement in all its dimensions. The implication of that would seem to be that the Good Friday Agreement must not be breached by the alternative arrangements and the peace process must not be impeded in any way either.

It is surely unarguable that any alternative arrangements designed to avoid a hard border would, in so doing, address the “unique circumstances” on the island of Ireland. After all, that is why they would have had to be devised in the first place. The fact that they might also be considered appropriate for other borders between the UK and the EU would not seem to matter. However, it is by no means so obvious why alternative arrangements designed to avoid a hard border would automatically meet the other two objectives of the Protocol.

Current North-South cooperation has been acknowledged by both parties to rely to a significant extent on a common EU legal and policy framework. They have also noted that, as a result, Brexit gives rise to substantial challenges to the maintenance of North-South cooperation. The Protocol therefore needs to be implemented so as to maintain the necessary conditions for continued North-South cooperation post-Brexit. All this is in the Withdrawal Agreement, spelt out in the legal preamble to the Protocol.

But the key point is that alternative arrangements for avoiding a hard border – all those comprehensive customs cooperation arrangements, facilitative arrangements and technologies – would surely be insufficient to maintain the necessary conditions for continued North-South cooperation.

It would seem, therefore, that additional detailed new arrangements would have to be devised and implemented for that specific purpose before the backstop regime could be superseded. If that turns out to be impossible, then a strict reading of the relevant part of the Instrument would suggest that the alternative arrangements to avoid a hard border might indeed need to replicate the provisions of the backstop in some respects. They would effectively need to allow for the continuance of a common EU legal and policy framework north and south of the border.

What about the objective to protect the 1998 Agreement in all its dimensions? This would seem to be essentially political rather than technical. The very broad nature of the objective is surely an open door to EU negotiators, should they for any reason wish to delay progress by placing weight on fundamental objections to a Northern Irish Brexit raised by politicians, activists and ordinary citizens either side of the border.

It is easy to see that, depending on the novelty and complexity of the alternative arrangements, they could be open to criticism as a reversal of the rapprochement between north and south, an affront to the spirit of the 1998 settlement, and even a threat to the comparative peace that has followed the GFA.

One imagines that this must have been the subject of detailed discussion between the Government and the Labour Party over the course of the past few fruitless weeks. Surely it must have become clear to both sides that, unless Northern Ireland were to be cut adrift, the outcome of the negotiation of the future relationship was overwhelmingly likely to be closer to Labour’s aspiration than Theresa May’s Chequers blueprint.

Or was Theresa May reluctant to spell this out for fear of losing the support she had gradually managed to attract from her own back benches, support which in any case now seems to be ebbing away by the day? More likely, was the Labour Party leadership unreceptive to the message, never really willing to assist in the delivery of a ‘Tory Brexit’ and fearful of the Remainer majority on its parliamentary benches and amongst its membership?

Either way, this is all water under the bridge. If he had wanted it, Jeremy Corbyn, essentially a Leaver, could have had a Brexit much closer to his own apparent wishes than those of most Tory MPs. But it now seems almost certain that any future Brexit plan cobbled together by the Conservatives under new leadership will be far less attractive, so that Labour will finally have to come off the fence as a party of Remain.

Martin Davison is a retired tax consultant, who now studies independently and writes on a wide variety of issues.