Richard North, 11/03/2019  

You might have thought that former foreign secretary Johnson might have learned something about the EU in his long journey from Telegraph hack to backbench MP and Telegraph columnist. In his latest column, though, we see a parade of the most extraordinary ignorance about the nature of the Withdrawal Agreement and the embedded backstop.

Clearly, Mr Johnson simply does not understand some key facts that lie at the heart of our post-Brexit relationship with the EU. Both rehearsed many time on this blog, the first is that, once we leave the EU, we become a third country. The second is that the border between the Irish Republic and Northern Ireland becomes part of the external border of the European Union.

Since it is an undisputed shared objective of the EU and the UK that this border should be "frictionless", this creates a unique situation where a back door via the Irish Republic is opened into the EU's Single Market, potentially compromising its integrity to such an extent that it puts the whole concept at risk.

To avoid this, the European Union has no option but to insist as part of our withdrawal agreement on a series of measures which will secure the integrity of the Single Market. And it is from this that stems the so-called backstop – the protocol on Ireland attached to the formal Withdrawal Agreement.

The backstop, of course, is not intended to take effect, leaving the period afforded by the transitional period for the UK to negotiate a long-term agreement which would secure a "soft" border while maintaining the integrity of the Single Market. Only if this agreement is not concluded does the backstop kick in.

Although this was initially agreed by the UK government, the MP collective has rejected it and now Mr Johnson tells us that our negotiators "have done their best to explain UK democratic and constitutional objections to the Irish backstop". But, he adds: "They might as well have been talking to the wall".

Therein is the essential problem. No more can the EU back down from its stance than, if Mr Johnson has it correct, the UK can retreat from its. This leaves us with an insoluble impasse. The EU cannot give in and, if the parliament will not back whatever is presented to it on Tuesday, there will be no deal. It is as simple and complicated as that.

There is simply no point in churning out the tiresome rant which forms Mr Johnson's column today, and if it was only his personal opinion he was projecting, we could ignore it completely. Sadly, that luxury is not given to us as his lamentable views seem to be shared by the entire ERG sect and many other Conservative MPs.

But even then there is no point in arguing with the man, or in dealing with his many technical errors and misperceptions. Come Tuesday, the MP collective has to decide whether to go for the Withdrawal Agreement (complete with backstop), or prat around with ideas of their own, the net effect of which will be a no-deal Brexit – with or without a delay.

At this time, most of the ordinary public – if there is such a thing - have ceased caring, a situation which has been with us long since. It has even got to a state where people such as myself can't even be bothered to address, yet again, the arguments put by the likes of Johnson. It is time to put up or shut up. And if the choice is no-deal, by act or default, then Johnson and his mates will be responsible for the consequences.

Should the collective elect for the Withdrawal Agreement, it isn't the end of the world. Johnson and his band of intellectual pygmies are vastly overstating their case. To ward off the backstop, we need to adopt either the Efta/EEA option or, failing that, what I've described as the "shadow" EEA option. This replicates the substance of the Efta/EEA option without rejoining Efta.

From there, I don't think anybody in their right mind would take this as the final cover. And nor is the traditional free trade agreement an answer. This would be going backwards, not forwards.

But it is here that there is an extraordinary lack of vision which melds into a distressing timidity, where so few people seem prepared to think outside the box. Yet, in fact, in terms of broad principles, there are only three possible options: unilateral action, bilateral agreements, and multilateral action.

Within the latter category, though, we have the ability to broker sector-specific deals, either within the WTO framework – such as the agreement on trade in large civil aircraft – or under the aegis of the UN or allied bodies, such as the globally harmonised system (GHS) of Classification and Labelling of Chemicals.

For all the blather about free trade agreements, the greatest potential for advancement lies in multilateral, sector-specific agreements, which have the great advantage of releasing parties from the curse of conditionality, where non-trade related clauses are attached to trade agreements.

As with the WP.29 system, on the global harmonisation of vehicle regulations, we can also get away from the "big bang" approach to trade negotiations, and embark on a process of incremental development, where parties can opt in and out, according to their wishes and needs.

But there is another issue, one which has been almost (if not actually) totally ignored in the pursuit of freeing up world trade. That is the vexed question of the need for democratising trade deals, so that we don't have trade agreements over-riding domestic law when this is felt to be against our national interests.

To that extent, it can be – and has been – argued that even the WTO agreement is anti-democratic, differing in some respects from the EU only in the matter of scale rather than principle. Either way, domestic law has to give way to international accords.

The impact of this, of course, can be overstated. I have been known to remark that I would not be prepared to man the barricades over an international standard for the sugar content of jam – especially when this is determined by the characteristics of spoilage organisms.

However, there will always be areas of friction between domestic and international laws, and a way must be found to deal with them, in a way that maintains the integrity of the international order, while protecting democracy at the local level – the only level where it has real meaning.

Thinking this through, it has occurred to me that a combination of strategies could suffice. First, we could adopt the EEA Agreement device of safeguard measures – allowing opt-outs from treaty provisions on certain grounds. Then we could employ The Harrogate Agenda referendum system, together with specific restraints in a written constitution.

The way these would work together is that the government would be constitutionally prohibited from signing up to any treaty unless it embodied formal safeguard measures – or waivers, as in the WTO agreement.

Then, at any time once a treaty is in force, a referendum can be called (subject to THA restraints) on whether any specific treaty requirement should be struck out by invoking the safeguard measures or a waiver. If a majority voted in favour, then the government would be obliged to invoke the measures, opting us out from the relevant part of the treaty.

Given that safeguards are a common part of treaty law, such a device would maintain the integrity of the international order. It might also provide a vital safety valve, that would keep us attached to certain treaties. Imagine, for instance, whether we would have had a referendum on leaving the EU if we could have had a referendum on whether to modify the freedom of movement provisions.

In terms of taking back control, where the population of a country feels it has the final say as to whether any particular treaty provision should apply, there might be considerably less resistance to developing international cooperative agreements.

Doubtless, though, there are endless queues of people who would be only to keen to sneer at the idea of injecting real democracy into the international system, rather than the sham democracy represented by EU systems. But, above all, we have people who see it as their role in life to sneer at anything which differs from their perceptions of the norm.

Nevertheless, it is fair to say that the thinking on trading relationships and treaty systems has slipped into a rut, lacking in imagination and innovation. From the likes of Mr Johnson and others, we get the same tired mantras, based largely on 18th Century ideas which have progressed little since their inception.

As far as Brexit goes, we desperately need some new thinking, but also the urgent recognition that the ratification of the Withdrawal Agreement is only one small step for man. More than anything, we need a sense of perspective.

As long as the deal gets us out of the EU, nothing is forever. We can come back again and again until we get closer to what we want. With our closest neighbours, though, there will never be a time when we are not negotiating about something. One could say that the Brexit process is not just for Christmas, but for life. Once started, it will never, ever end.

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