The draft Withdrawal Agreement, published last Wednesday by the EU, was intented as a translation into legal language of the Joint Report of last December, which signalled an end to the first phase of the Brexit negotiations.
The response from the British side was rapid and unequivocal, that the draft was not acceptable.
— The Business Post (@sundaybusiness) February 28, 2018
Many were just as quick to respond that Theresa May had already signed up to these proposals, in the Joint Report.
Theresa May says "No UK prime minister could ever agree to the draft agreement," in PMQs, referring to the draft Brexit agreement she agreed to in December
— James Rothwell (@JamesERothwell) February 28, 2018
But did she?
At issue, of course, is the central problem of the north and the border; which, incidentally, the UK still seems to be struggling to understand.
Boris Johnson dismisses talk of a hard Irish border, explaining "there's no border between Islington, Camden and Westminster" pic.twitter.com/NEU1LMAnXM
— Naomi O'Leary (@NaomiOhReally) February 27, 2018
— Joey Millar (@JoeyMillar) February 27, 2018
The December Joint Report proposed three options to avoid a hard border.
Option One is an overarching free trade and exit deal between the EU and UK which doesn’t need any specific solutions for the north. Option Two is a specific deal for the north, if the overarching deal isn’t enough to prevent a hard border. Option Three is the backup in case there’s no agreement; the famous ‘regulatory alignment’ model.
49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.
The draft Withdrawal Agreement focuses on Option Three, with Options One and Two to be explored in negotiations over the following months.
Controversially, the draft agreement makes no mention of paragraph 50 of the Joint Report. Added to sitestep DUP objections which delayed announcement of the deal in December, this paragraph was intended to guarantee that there would be no border established in the Irish Sea, between the island of Ireland and Britain.
50. In the absence of agreed solutions, as set out in the previous paragraph, 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. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.
By contrast, the draft Withdrawal Agreement essentially establishes such an economic border in the Irish Sea, bringing the DUP objections back to the table.
Establishment of a common regulatory area
A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected in accordance with this Chapter.
Free movement of goods
1. The provisions of Union law on goods listed in Annex 2.1 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.
2. Customs legislation as defined in point (2) of Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council138 as well as other provisions of Union law providing for customs controls of specific goods or for specific purposes listed in Annex 3 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland. The territory of Northern Ireland, excluding the territorial waters of the United Kingdom (the “territory of Northern Ireland”), shall be considered to be part of the customs territory of the Union.
3. Customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland. This prohibition shall also apply to customs duties of a fiscal nature.
The EU has explained this omission by stating that arrangements for trade between Great Britain and Northern Ireland are an internal matter for the United Kingdom. This explanation, however, does not hold up to scrutiny.
Option Three comes into play if and only if the final Brexit agreement, or lack thereof, would otherwise require a hardening of borders between the UK and the EU, leading to a hardening of the border in Ireland. In that case, if Northern Ireland remains within the Single Market and Customs Union, and Great Britain does not, the Irish Sea would effectively be the UK-EU border. As such, trade between Northern Ireland and Great Britain would be trade between the Single Market and a third country.
It is difficult to see how the EU can defend the position that this is purely an internal matter for the UK. Of course, the UK could ensure that businesses in Northern Ireland could have unrestricted access to export to Great Britain, but goods travelling in the opposite direction would have to be subject to EU Customs laws, as specified in the draft Agreement. One way unrestricted access is not unrestricted access.
To ensure the absence of an economic border in the Irish Sea, there must be the same level of regulatory alignment between Northern Ireland and Great Britain as on the island of Ireland. This was recognised in the Joint Report in December, which specified in paragraph 49:
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union
The United Kingdom – not Northern Ireland, not the United Kingdom in respect of Northern Ireland, but the entire UK. The draft withdrawal agreement, on the other hand, particularly specifies the United Kingdom in respect of Northern Ireland; a distinct difference.
Whether ‘regulatory alignment’ requires remaining fully within the Customs Union and Single Market is certain to be debated. The EU has been quite clear that from their perspective, it does.
If that is the case, the draft agreement should have specified the entire UK to remain within the Customs Union and Single Market as the backstop option – perhaps with an opt-out for Great Britain in case the Assembly and Executive agree that the north should be subject to special arrangements, as per paragraph 50 of the December Joint Report.
It is hard to imagine that the EU didn’t know this. Instead, it seems likely that the EU intended the publication of this draft Withdrawal Agreement to be provocative. The question, then, is what the EU sought to achieve through this provocation.
It must be considered that this was actually an attempt to destabilise the British Government. Theresa May is Prime Minister of a minority Government, with a slim working majority secured through a confidence and supply agreement with the DUP. Even that slim majority is not secure, with deep divisions within her party on the approach to Brexit. The reaction of the DUP in December, with a last-minute phone call from Arlene Foster derailing the first attempt at the agreement in the Joint Report, made clear that an Irish Sea economic border could not be facilitated by this Government.
The EU would be well aware of this. Proposal of an Irish Sea border in the draft Withdrawal Agreement could, then, have been an attempt to bring the British Government down. If the Conservatives moved to accept the draft, DUP support would be withdrawn, leading to the likely collapse of the Government and a general election. If the DUP prevailed, Great Britain would remain with Northern Ireland in the Customs Union and Single Market, which would be unacceptable to the hard Brexit wing of the Conservative Party, including Foreign Minister Boris Johnson. This could precipitate a leadership challenge, with the new leader not guaranteed to retain DUP support.
This does seem unlikely, however. There would be no clear benefit to the EU from such a move. Aside from entrenching further the attitudes of hostility to the EU, such a move would produce further instability both in Britain and Europe with time already short for negotiations. A no-deal hard crash-out Brexit would hurt the EU as well as Britain, and is not in the interests of anyone – especially not Ireland.
The EU must have known that the draft agreement could not be accepted by the Conservative Government. Instead, the draft provides a focus for negotiations, and offers Britain in stark language the choice they have been avoiding for months. The historical context in Ireland means there can be no hardening of the border. A hard Brexit requires a hard border. The EU provocation in the draft agreement seems intended to force Britain to make a choice: they can have a hard Brexit, or Northern Ireland, but not both.