1.The following comments attempt to stand back a little from the immediate swirl surrounding the new draft Withdrawal Agreement (‘WA2’) and reflect on what has (and has not) really happened over the last few days.
2.As many have already pointed out, about 90 percent of WA2 is exactly the same as the November 2018 draft Withdrawal Agreement (‘WA1)’. From a EU27 perspective, that is entirely unsurprising.
3.The EU’s negotiating guidelines have not altered and nor has the need to protect the integrity of the EU single market, safeguard citizens’ rights and obtain payment of money already committed in the existing financial framework.
4.Nor has the EU’s position altered radically in relation to the ‘Northern Ireland question’.
5.As with WA1, the priorities have been to avoid the imposition of a ‘hard’ border between north and south and to preserve the hard-won and fragile fruits of the peace process that culminated in the Good Friday Agreement (GFA).
6.Bear in mind (please) that the whole ‘European project’ started, after all, in the shadow of the human catastrophe and material devastation that was World War Two. Fortunately, many on the EU27 side of the negotiating table have remained very aware that peace matters.
7.The principal result of the re-negotiation, once the necessary ground had been conceded on the UK side of that table, was to remove the ‘backstop’ (only ever intended as an insurance policy if all else failed) and to replace it with a quasi-permanent ‘front-stop’.
8.An extremely summary description of the new arrangement is that it places the customs frontier in the Irish Sea, keeping Northern Ireland de iure within the UK (ie outside the EU) and de facto part of the island of Ireland (ie inside the EU).
9.It therefore necessarily puts in place rather elaborate arrangements to link the applicable customs tariffs securely to the intended destination of goods.
10.The front-stop is semi-permanent in the sense that the default value is that it continues. The arrangements for bringing it to an end, if triggered, leave a two year space in which to solve the old conundrum that will then re-emerge.
11.All credit to the negotiating teams on both sides for the intellectual creativity and sheer hard work against the clock that went into crafting WA2.
12.WA2 clearly looks after the EU27’s essential interests. Those include trying to get the UK, assuming it leaves, to do so with a structured deal (complete with transitional period) rather than in a disorderly and abrupt ‘cliff-edge’ manner.
13.Along with the changes that distinguish WA2 from WA1, the non-binding, aspirational Political Declaration (PD) has also been re-worked. The new PD2 is different in important respects from the November 2018 PD1.
14.To summarise: PD1 aimed at a close economic relationship, complete with extensive regulatory alignment in such important areas as workers’ rights, consumer protection, product safety and environmental protection.
15.In contrast, PD2 envisages a much more distant relationship: essentially, a goods free trade agreement (FTA) with some bolt-ons to cover some (not all) other issues, notably services, to some extent.
16.Both PD1 and PD2 also contain statements of intent about other (very) important matters, such as cooperation on security.
17.The EU27 have consistently indicated that they would structure the PD in accordance with what the UK Government said it wanted out of the future relationship.
18.Under Article 50 TEU, moreover, the EU27’s only official interlocutor is the UK Government. That holds good whether or not that government commands a majority in the House of Commons or is at all times complying fully, as it should, with UK domestic constitutional law.
19.In short, in this context what happens domestically in the UK is treated by the EU as part of Member State sovereignty and hence as Member State business.
20.The EU27’s statements about the new proposed new arrangements make it clear that, just as the EU could live and work with WA1 and PD1, so it can also live and work with WA2 and PD2. Seen through EU27 eyes, that is a good result.
21.Whether one is satisfied with WA2 and PD2 from the UK side depends fundamentally on one’s perspective.
22.If the desired Brexit model is close economic alignment and equivalent levels of regulatory protection for workers and the general public to those accompanying Member State status (ie would-be remainer/BRINO/soft Brexit), WA2 plus PD2 is significantly worse than WA1 and PD1.
23.If, on the contrary, the desired model is a basic FTA with the EU 27, economic liberalism and maximum scope to structure whatever new deals may be on offer with other trading partners (ie ERG / hard Brexit), the logical preference will be for WA2 and PD2.
24.The obvious, even if it is obvious, sometimes bears to be stated: the 2016 referendum vote did not involve any choice (still less an informed choice) between these two models of ‘leave’. Neither model was on offer at the time. [MORE FOLLOWS]
