Brexit: end of the beginning?

19/10/2019

The European Commission has now produced a consolidated version of the Withdrawal Agreement, which includes the revised Protocol on Ireland/Northern Ireland, the technical adaptations to Article 184 "Negotiations on the future relationship" and Article 185 "Entry into force and application".

The 537-page text is described as a working document and, reflecting the provisional nature of the draft Protocol, bears the additional statement: "as agreed at negotiators' level and endorsed by the European Council". It is also still marked: "Subject to legal revision", further indicating that we have not yet been presented with something the parties are confident enough to call a final draft.

For me, it is a matter of wry amusement that the swamp-dwellers are working themselves up into a tizzy over today's votes – aided and abetted by their media handmaidens, who are positively wallowing in the soap opera – when (for those who want it) they have the wherewithal to force Johnson to apply for an Art 50 extension. It is so typical of MPs, the majority of whom in the 40 months since the referendum have never got to grips with the technical issues of Brexit, that they don't even understand their own legislation.

Standing aside from the media hype, it has now been possible to start the long process of getting to grips with the new text, and to begin to try and understand some of its implications. This will take some time and anyone who can claim to have a complete grasp of what it entails is either a liar or charlatan – or both.

Certainly, the heads of state and government who "endorsed" the document – only hours after it had been produced - cannot have read it, which tells you a great deal about what goes into the making of these treaties. It is no wonder that so many of them are an incomprehensible mess, especially if they are cobbled together at the last minute, for the worst of all possible reasons.

For all that, Pete has it that the old and the new are much the same, which is a not unreasonable view if you look at the overall political effect rather than the detail of the (relatively limited) amendments: this is still, in the main, Mrs May's Withdrawal Agreement.

For all the gushing adulation of Johnson, the "victor" of Brussels, had the treacherous turd devoted a fraction of his energies to supporting his own leader, instead of undermining her, then we might have been out of the EU at the end of last March, instead of still playing interminable games.

That this point stands up is easily demonstrated by an appreciation of the relative functions of the two versions of the withdrawal agreement. Barring the housekeeping issues – which remain unchanged – they share the same primary function of easing us out of the EU into a "standstill" transition period, allowing us time to negotiate our future relationship with the EU.

As to the infamous Irish Protocol, however, there is one big difference – that of permanence. In Mrs May's version, Point 4 of Article 1 states:

The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.

This is then elaborated upon by Article 2, headed "Subsequent agreement", which thus declares:

1. The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.
2. Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part, notwithstanding Article 20.

These passages are missing from Johnson's draft, turning what was the "backstop" into what has been described as the "frontstop". What we've got stays with us, with the exception of customs and related provisions. These can be removed by a convoluted "consent" process, four years after the end of the transition period, albeit in a way that some argue drives a cart and horse through the Good Friday Agreement.

Why Johnson's semi-permanent protocol is somehow better than Mrs May's version, which was never intended to come into effect, isn't explained, especially in the context of Johnson's pre-agreement confidence in his "alternative arrangements", which have disappeared without trace. Mrs May's Strasbourg Agreement has fallen by the wayside.

Yet it was this agreement that committed the parties to working on the alternatives, so that "the backstop solution in the Protocol on Ireland/Northern Ireland will not need to be applied". Such arrangements now get a single sentence in the revised political declaration.

For now, though, Northern Ireland is saddled with complex dual-customs arrangements, and a "wet" border in the Irish Sea, something Johnson himself said would never be acceptable. As always, he is a man of his word (not).

As to the rest, we do have the transition period. Thus, if the swamp dwellers play ball today and Brexit is set for 31 October, existing EU law will continue to apply until at least the end of December 2020. There is, however, provision for extending the transition period for up to one or two years.

This is a one-time only extension which cannot be repeated, the application for which must be lodged before 1 July 2020. The maximum period allowable, therefore, is three years and two months, from November of this year, in which the government must negotiate its future relationship – based on the revised political declaration.

In this, the parties "agree to develop an ambitious, wide-ranging and balanced economic partnership". This is intended to be "comprehensive", encompassing a Free Trade Agreement (FTA), combining "deep regulatory and customs cooperation", as well as wider sectoral cooperation where it is in the mutual interest of both parties.

Unless we are informed to the contrary, the FTA will be based on the Canadian Comprehensive Economic and Trade Agreement (CETA). One should note, however that the process of bringing this to fruition started with a joint study released in October 2008, with formal negotiations starting on 6 May 2009. An agreement in principle was not signed until 18 October 2013 and the negotiations were concluded on 1 August 2014, with the actual treaty signed on 30 October 2016.

This means that just the negotiating phase took the best part of five years. From door-to-door, the treaty took eight years. Given that it has taken three years for the EU and UK to agree a dog's dinner of a Withdrawal Agreement, the idea that a comprehensive FTA could be produced in the three years of the maximum transition period allowed is absurd.

Nevertheless, since many now believe Johnson can walk on water, I'm sure they'll expect him to leave it to the last minute and then conclude a deal in a fortnight.

In the real world, though, the concern is that Johnson does not even intend to apply for an extension, forcing us out of the transition period at the end of December 2020 with no deal, or with only a basic no-tariff deal – a sop to the "ultras" to get them on board for today's vote.

Even the threat of this presents massive uncertainty for business – at least until July, when we will know the worst. But given that it will take a heroic effort to secure a deal even inside three years, leaving the period at just over the year would constitute a major set-back.

Whatever the swamp dwellers deliver us today, therefore, our troubles are very far from over. Soon, people will begin to appreciate the vacuity of Johnson's "let's get Brexit done" soundbite and have to confront the reality that Brexit is not an event but a process.

With that, leaving the EU is just the end of the beginning. To deal with that, one could even think that it might have been a good idea to have prepared a plan.