On Wednesday, in Brussels, the European Commission published the first draft of the formal legal agreement that will lays down the terms under which the United Kingdom will leave the 28-member political and economic bloc. That is supposed to happen at midnight — 11pm in London — on March 29, 2019, a little under 13 months from now.
Formally called the Withdrawal Agreement, it offers the framework of a settlement that both sides will have to sign on to — unless the UK is to crash out of the bloc in a so-called “hard Brexit”. And as it stands now, there is every indication that the Withdrawal Agreement may indeed be rejected by hard-line Brexiteers within the government of UK Prime Minister Theresa May — and by the Democratic Unionist party (DUP) of Northern Ireland, on whom May relies for support to continue to govern at Westminster.
Basically, the Withdrawal Agreement is supposed to flesh out in legal terms the deal reached by the EU27 and the UK in December on the first phase of the Brexit negotiations. These dealt with the amount to be paid by the UK for its budgetary commitments to the EU; the rights of some three million EU citizens currently living in the UK and the 1.7 million Britons living across the rest of the EU; and the certainly of an open border between the Republic of Ireland to the south and Northern Ireland on the north of the island — the only land frontier that will exist between the UK and the EU.
That agreement reached in December was a political one — one that allowed EU negotiators and the UK to move to the second phase of talks that would then include such topics as trade deals and a whole range of social, economic, transport, medical, insurance, fiscal, environmental, aviation, security and cultural issues.
The publication of Wednesday’s Withdrawal Agreement is a 120-page document that put the terms of that December political deal into a legal framework — and outlined how a transition term would work. This transition term would take effect after the deadline at the end of next March but before a final relationship deal between the EU and UK is finalised — effectively buying time to work out the inevitable wrinkles between the two that will arise after the UK’s four-decade membership of the bloc.
December’s political deal was reached only after the UK agreed to “regulatory alignment” between Northern Ireland and the Republic — making sure that the border between the two remained open, and without security and customs checks.
The fear is that any return will to a “hard” border between north and south will play into the hands of Irish Republican terrorists who are eager to resume a campaign to force a united Ireland. Between 1969 and the signing of the Good Friday Agreement in 1998, more than 3,600 people were killed and another 36,000 injured in political and sectarian fighting in Northern Ireland.
The December deal outlined three possible scenarios to avoid the return of a trade border. The first option is that a new trade agreement between London and the EU would be sufficiently generous enough to mean that there would be need to for a check on goods, services or indeed people travelling between Ireland — in the EU — and Northern Ireland — outside the EU. That would either mean the UK would remain in the customs union, or very closely aligned with it. That’s an option that is the antithesis of what Brexiteers want.
The second option is a hope that at some time in the future, there would be a technology that would allow for the free flow of goods but still enable instantaneous checks to be carried out; or that it would remain very closely aligned to the needs of the customs union.
And the third — given May’s reliance on the Democratic Unionist Party (DUP) and with hard Brexiteers in her cabinet and Conservative party — is the most controversial. This is the so-called “backstop”, and would come into effect if there is no effective or workable solution emerging from the first two options.
In regulatory alignment
A protocol in the Withdrawal Agreement clearly states that as far as the EU is concerned, Northern Ireland would remain in regulatory alignment even if the rest of the UK goes its own way. In effect, it envisages the possibility that there would be a border not on the island of Ireland, but down the Irish Sea between the islands of Britain and Ireland.
For the DUP, that’s a non-starter, and says it effectively means that the EU is trying to annex Northern Ireland, breaking up the territorial and political integrity of the UK, with England, Scotland and Wales outside the customs union, and Northern Ireland within and on equal footing with the rest of the EU — and the Republic of Ireland.
For Scottish Nationalists, who are bitterly opposed to Brexit, this scenario offers the hope that they might be able to pursue a similar deal, pushing the customs union border back to cover just England and Wales — a significant boost to Scottish economic and political independence.
The May government had chosen to interpret the December deal as not committing it to alignment in all rules and regulations between north and south in the backstop arrangement. The draft Withdrawal Agreement text leaves no room for ambiguity on this point. It makes clear that the backstop involves Northern Ireland effectively remaining in the EU customs union, the agreement that allows goods to circulate without tariffs. Consequently, many of the rules and regulations of the EU would also have to apply in Northern Ireland, as otherwise checks would be needed on the Irish border to ensure these rules were applied to goods entering the EU trading bloc.
Significantly too, Northern Ireland would have to remain under the jurisdiction of the European Court of Justice — something that is anathema to all Brexiteers.
For the Conservatives — and the DUP — the Withdrawal Agreement present serious challenges for Brexit.
To avoid the backstop, the easiest route would be for the UK to stay in the EU trading bloc — the customs union and the single market. But May’s government is insistent this will not happen.
The second way for the UK to meet the border commitment would be to accept that Northern Ireland remains in the customs union and applies single market rules.
In reaching the deal in December, the UK promised that there would be no barriers to trade down the Irish Sea following demands made by the DUP.
Right now, the Withdrawal Agreement leaves both sides effectively no further ahead than they were when negotiations began last July after the UK general election.
If the UK leaves the EU trading bloc, then a customs border is needed either on the island of Ireland or in the Irish Sea. One is ruled out by the EU Withdrawal Agreement and the other by the UK.
So, what happens now?
The EU states will have their input into the text and offer amendments.
The EU27 meet on March 22 to discuss progress and trying to agree a transition term for the UK. But right now, with time running out, little real progress has been made, and the Irish border remains the key issue. The Irish government has the support of the EU Commission and the other EU26 — and unless there’s agreement on the border soon, the talks seem likely to fail. Given May’s reliance on the DUP, she has little if any room to manoeuvre.
