Richard North, 09/12/2017  

Ostensibly committing the UK to a "soft" Brexit, the Joint Report from the EU and UK negotiators, published yesterday, actually does no such thing.

As the accompanying (but less read) Communication makes clear, "the Joint Report is not the Withdrawal Agreement". And in that one terse sentence on the first full page of the document is set the essence of Friday's dramatic "breakthrough". The "dawn patrol of Mrs May and Jean-Claude Junker shaking hands on a "deal" that takes us into phase two of the Brexit negotiations may be good theatre, but that is about all it is.

In the Communication, we are reminded that, only if the European Council considers that sufficient progress has been made in those negotiations will it instruct the European Commission to draw up a proposal for a Withdrawal Agreement. This will be "based on Article 50 of the Treaty on European Union" and will be drafted only "on the basis" of the Joint Report as well as "the outcome of the negotiations on other withdrawal issues".

The only commitment in relation to Friday's deal, therefore, is that the final Article 50 agreement will be drafted "on the basis" of it and the outcome of the subsequent negotiations. There is nothing in the Joint Report which constitutes a formal treaty or any legally enforceable commitment.

In fact, as the Joint Report takes pains to point out, "nothing is agreed until everything is agreed", a caveat that over-rides its apparent requirement that the Joint Report shall be "reflected" in the Withdrawal Agreement "in full detail".

In any event, any supposed "commitments" do not, "prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations". Furthermore, they are "without prejudice to discussions on the framework of the future relationship".

Returning thus to the Communication, we find that the Withdrawal Agreement "will be concluded by the Council upon a proposal from the Commission" – on the basis of QMV – but only after "obtaining consent of the European Parliament". And, of course, it is "subject to approval by the United Kingdom in accordance with its own procedures".

Were it the case, however, that the parties sought to make the Friday (but not the Good Friday) deal enforceable, those attempts would fall foul of the simple premise in law that requires any "commitments" to be reasonably capable of execution. And, where we find the core element in the "Ireland and Northern Ireland" section (paras 42-56), there is a lack of coherence which amount to self-contradiction.

The heart of the section is set out in paras 49-50, the first of the pair asserting that the UK "remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border". Any future arrangements, it says, "must be compatible with these overarching requirements".

As a binding commitment, that immediately falls apart as its execution is subject, inter alia, to the approval of the European Council, the European Parliament and the UK "in accordance with its own procedures" – and can be swept aside by any agreements made in discussions relating to the framework of the future relationship.

Moving on, we are told that the UK's intention is to achieve these objectives "through the overall EU-UK relationship". But, unless the UK embraces measures equivalent to the adoption of the full range of Single Market rules, that cannot happen. And since this has already been ruled out by Mrs May, it isn't going to happen.

Effectively recognising that, para 49 goes on to say that: "Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland". But that brings us back into DUP territory, where no agreement is politically tenable. This option is also a non-starter.

What the Joint Report amounts to then is the latter part of para 49, which offers the fallback "in the absence of agreed solutions". Then, the UK "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".

This is generally taken as a commitment by the UK to adopt the Single Market and Customs Union provisions – especially as the reference is to "full alignment" - thereby banishing the prospect of a "hard" Brexit. The Republic of Ireland is thus being lauded for its actions in "rescuing" the UK.

In the event of this happening, though, we have to add para 50, where the UK "will ensure that no new regulatory barriers develop" between Northern Ireland and the rest of the UK, unless "consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland".

In all circumstances, however, the UK "will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market".

What this then amounts to is giving the power to the Northern Ireland Executive and Assembly to require the entire UK to maintain "full alignment" with the "rules of the Internal Market and the Customs Union" unless they decide to go their own separate way.

This, on the face of it, looks to be exactly what it is – absurd. The tiny Northern Ireland "tail" is wagging the huge UK "dog", forcing Mrs May to abandon her own party commitment to leaving the Single Market and the Customs Union. But, as we later learn – courtesy of the Irish Times - this is not to be.

Rather, as confirmed by a senior official at the Department for Brexit, the commitment to maintain full alignment with the "rules of the internal market and the customs union" applies only to the six areas of North-South economic co-operation identified in the Belfast Agreement. These are transport, agriculture, education, health, environment and tourism.

The official says that 142 cross-border policy areas identified by the Barnier task force were subsets of the original six, and insisted that the commitment did not undermine Britain's declaration that it would leave the single market and the customs union.

"It's the six areas. The 142 are a deeper dive across those six areas. The ambition at the moment clearly is to get cross-border trading arrangements to maintain the status quo as much as we can", the official says, adding: "There are a very unique set of circumstances that apply to Ireland that don’t apply to anywhere else in the UK. But in terms of customs union and single market membership, the UK as a whole will be leaving".

And there we confront the EU's own requirements. In order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK, unless the border moves to the Irish Sea. And since these conditions are not going to be met, neither the Council nor the European Parliament can approve them.

This alone tells us that the Joint Report is already dead in the water. It is not the basis for a serious negotiation – merely a device to keep the talks moving and to allow Mrs May to claim a much-needed "victory" in order to keep her in office a little while longer.

When Donald Tusk expresses his concerns that Downing Street "was not aware of how difficult the coming negotiations would be", he is only stating the obvious.

Mrs May has not so much kicked the can down the road as the whole cannery. But it is still there, looming on the horizon, ready to dominate phase two. In so doing, the parties have set themselves up for a fall – apparent commitments that aren't actually commitments and which cannot be implemented.

The only face-saver is the agreement to discuss the transition period, but even then the Tory "Ultras" aren't going to like what they see – full adoption of the EU acquis, subject to the jurisdiction of the ECJ without any representation. This is the worst of all possible worlds.

Then, given the chaotic nature of the Joint Report, that is the least of our problems. We have not escaped a "hard Brexit" – we have made it more or less a certainty. Even collapse is still a possibility, which makes transition academic. On present form, we'll be long gone before it can take effect.

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