Some comments on this analysis by Martin Howe QC
1. He is right that the backstop provision in the December 2017 agreement isn’t legally binding.
That observation isn’t, though, of much practical use. In any multi-stage negotiations, if one party backs down on something previously agreed, the effect tends to be the same as pulling out a brick in a Jenga tower: the edifice is liable to collapse.
2. His critique of the idea of an arbitration mechanism is a bit hard to follow. He seems initially to object to the idea of any arbitration mechanism as a constraint on the UK’s ability to renounce the backstop.
The ground then shifts to a complaint that the arbitration mechanism won’t be neutral because of the involvement of the ECJ.
The reason this is all a bit obscure is that it’s a bit unclear what question the arbitration mechanism will be asked to decide. Until you know what the question is, it’s a bit hard to know what is the right mechanism to resolve disputes about it.
The key points are: (i) it is *only* if the question involves one of EU law that the ECJ is the right tribunal (to resolve the EU aspect); and (ii) *if* the question involves one of EU law then the ECJ *has* to resolve that bit (the EU can’t enter an agreement otherwise).
We will have to see exactly what is proposed, but those points need to be held onto in assessing complaints about the ECJ’s involvement.
3. Martin complains about remaining tied into “uncompetitive” level playing field commitments.
But that’s an odd claim in relation to State aid (at least from a free marketeer like Martin).
And insofar as it relates to matters like workers rights and environmental consumer protection and health and safety standards, it rather ignores the firm promises from the Government that standards aren’t going to be lowered in those areas.
4. Martin’s fundamental complaint though is that the backstop prevents our concluding FTAs with third countries and ties us into an uncompetitive level playing field.
But that, I think, misdiagnoses the problem. The problem isn’t any legal mechanism imposed by the EU. Rather, it’s a tension - some would say a flat contradiction - between two *Brexiter* policy objectives.
Keeping an open, invisible Irish border is, nominally at least, a Brexiter policy objective. But, like tango, an open border requires the consent and active participation of two parties.
So - while Ireland continues to exercise its choice as a sovereign State to remain a member of the EU, a choice Brexiters claim fully to respect, an open Irish border requires the consent and participation of the EU.
If the border is to be kept open, the EU has to be comfortable that the UK’s post-Brexit arrangements on regulation/tariffs, together with cooperation on cross-border movements, are adequate to allow the maintenance of an invisible border while protecting the integrity of the EU.
So - if Brexiters are serious about honouring the open border objective - it is simply a fact that holding that objective constrains the UK’s other trading and regulatory arrangements to ones that the EU accept work with an open border and without prejudicing its own integrity.
Complaining about the terms of the backstop is really displacement activity, since it fails to acknowledge and deal with the brute fact that if you want to keep an invisible Irish border (and no Irish Sea checks) then you are a bit stuck with what the EU is prepared to live with.
Indeed, once you honestly face up to that fact, an arbitration mechanism might help, as it provides a check against wholly unreasonable behaviour by the EU (eg making unreasonable claims that particular U.K. proposals would require checks at the border)./ends
