Richard North, 01/03/2018  

Time and time again we've seen this. "Team UK" does absolutely nothing, leaving all the running to the EU. Mr Barnier's negotiating team then moves in to fill the vacuum, whence the UK establishment bitches like mad because they don't like what the EU has produced.

In the particular case of the first draft of the Withdrawal Agreement, the UK was given every opportunity to come up with its own proposals.

This was set out in December's Joint Report which re-emphasised the UK's commitment to protecting North-South cooperation and repeated its guarantee of avoiding a hard border. Any future arrangements, the report said, must be compatible with these overarching requirements.

At the time, it was intended that the UK should achieve these objectives through the overall EU-UK relationship, details of which it has been pressed to provide for some time. In the event that this was not possible, the idea was then that the UK should propose specific solutions to address the unique circumstances of the island of Ireland.

It was only in the absence of agreed solutions – arising from one or the other of these activities – that the UK agreed "to 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 (Good Friday) Agreement".

As it turns out, the UK has not produced any formal proposals and has shown no signs of delivering anything which looks even close to a solution that the EU would be prepared to agree. And it is in the precise context that the Commission has decided to produce its draft which, it says, "translates" the Joint Report and Joint Technical note into a legal text".

What this amounts to is an eight-page protocol (which includes nearly two pages of recital), is what is being called a "backstop" option. And this small addition has the potential to blow the Brexit negotiations apart for, without agreement on this, there will be no transition.

In the protocol, Northern Ireland continues to be part of a functioning Single Market, joining a "common regulatory area" with the rest of the Union, thereby constituting "an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected".

In jargon terms, the "common regulatory area" is the technical term for the Single Market (or internal market, if you prefer), although it has not been used before by EU institutions in this context.

The term made a single, guest appearance in 2007 in relation to the treaty creating the Energy Community extending the EU energy market to its southern European neighbours within what the Commission described as "a common regulatory area with shared trade, transmission and environmental rules".

In relation to the Single Market, I first used the term on 4 May 2016 and again a few days later. It is interesting to see the term now lodged firmly in the Union lexicon.

Of course, there is much more than Ireland in the whole draft, which runs to 119 pages, and must be agreed by the 27 Member States before it is formally put to the UK.

The whole thing would be (and doubtless will be) much longer, by a factor of many more pages, if the Annexes to the Irish Protocol were complete. In Annex 2, for instance, will be specified the entire list of EU law that will apply in the common regulatory area, aimed at ensuring the free movement of goods and protecting North-South cooperation.

Lifted from the EU acquis will be the laws which cover the free movement of goods, customs controls, VAT and excise duties, sanitary and phytosanitary requirements, the production and marketing of agricultural and fisheries products, wholesale electricity markets, environmental protection in relation to the control of the import into, release into, or transport within the Union of substances or material, or plant or animal species, and State aid.

By reference to the EEA acquis, this will be a list of about 5,000 measures, which will apply in perpetuity to Northern Ireland.

But it doesn't stop there. The Agreement also requires that 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. Furthermore, quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited.

If I understand this correctly, it opens a huge, tariff-free back door into the UK where any goods from the rest of the EU can pour into Ireland and thence to Great Britain via Northern Ireland.

With that, we are seeing the crunch point in the negotiations, as was always going to be the case. This is the point where May's stupidity, in committing to leave the Single Market without thinking through the consequences, finally meets reality.

Her ill-considered action meant that – short of non-existent technical solutions – there was going to be a "hard" border in Ireland, unless the UK agreed to move it to the Irish Sea, creating the so-called wet border, an outcome which has been evident for some time. And if Mrs May refuses that solution, she has on her hands an unsolvable problem. Strangely enough, I wrote in a blogpost recently, unsolvable means unsolvable. That is proving to be the case.

There is absolutely no point, therefore – as she did at PMQs yesterday in the prime minister rejecting, in toto the Irish provision. The draft legal text, she said:
… would, if implemented, undermine the UK common market and threaten the constitutional integrity of the UK by creating a customs and regulatory border down the Irish Sea, and no UK Prime Minister could ever agree to it. I will be making it crystal clear to President Juncker and others that we will never do so. We are committed to ensuring that we see no hard border between Northern Ireland and Ireland, but the December text also made it clear that there should continue to be trade between Northern Ireland and the rest of the United Kingdom, as there is today.
This is only something which her government agreed with the EU in December and, true to that agreement, the Commission has included (in Article 15 of the Protocol) a provision which states that,
Should a subsequent agreement between the Union and the United Kingdom which allows addressing the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Agreement in all its dimensions, become applicable after the entry into force of the Withdrawal Agreement, this Protocol shall not apply or shall cease to apply, as the case may be, in whole or in part, from the date of entry into force of such subsequent agreement and in accordance with that agreement.
It remains entirely open for the UK to come up with its own proposals and negotiate a separate solution – not that any such solution exists. But Mrs May has boxed herself into a corner and she only has herself to blame.

If things get too bad, however, she can always turn to the "safeguards" in Article 13. Presumably, with unintended irony, the Commission has copied out almost word-for-word parts of Articles 112 and 113 of the EEA Agreement, covering safeguard measures. We thus see:
If the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, the Union or the United Kingdom may unilaterally take appropriate measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
This, of course, is a measure so many pundits have been telling us could only apply to the likes of Liechtenstein, because it is such a small country, and could not possibly apply to the UK. Yet here we find it, the catch-all provision, without which no treaty should be considered compete.

As for yesterday, any evaluation couldn't be complete without noting that John Major also gave a speech.

This is the man who agreed the Maastricht Treaty and then called together his staff to find out what he had agreed. He then rammed the ratification through Parliament in the teeth of opposition from his own side, and all but destroyed the Conservative Party in the process. He is the very last person who needs to be opening his mouth just now.

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