UK has Committed Itself to Radically Contradictory Positions on Brexit and The Belfast Agreement

By John Bruton, former Irish Prime Minister (Taoiseach)

WILL UK BE ABLE TO NEGOTIATE MORE EASILY WITH EUROPE IF IT BINS THE WITHDRAWAL TREATY?

The new UK Foreign Secretary , Dominic Raab, has claimed on Radio 4 that the UK would find it “easier” to negotiate  a good long term deal with Brussels , if it had first crashed out of the EU , than if it ratified the Withdrawal Treaty. 

Doing this would mean binning the entire content the Withdrawal Treaty, not just the backstop.

Settlements painstakingly reached in the Withdrawal Treaty  on transitional matters, like the rights of existing cross border workers, the recognition of existing professional qualifications, social security, mutual financial obligations, enforcement of contracts and judicial decisions, and a transition period up to the end of 2020, would all go into the waste bin.

If , after that, the UK then decided it wanted to negotiate a new Agreement with the EU, these issues would have negotiated all over again from scratch.

That extra workload would be on top of the negotiation of the future EU/UK Agreement, which, given the range of subjects to be covered and the intricacies of arrangements being replaced, would probably be the most complex trade negotiation ever undertaken in human history. 

Binning the Withdrawal Treaty now, would delay the finalisation a future Agreement by several additional years because of this extra workload. 

And that is just on the legal side of things.

 The psychological damage to UK/ EU relations caused by a willful choice of “no deal” by the UK would have to be repaired. A prudent Foreign Secretary would consider these matters more carefully than Mr Raab appears to have done so far.

 It is, of course, true that that the backstop in the existing Withdrawal Agreement constrains the UK’s negotiating options for a future Trade Deal, because it requires the UK to take account of its obligations under the Belfast Agreement as well. 

THE ORIGINS OF THE CONTRADICTION… THE RED LINES OF 2016

 But that backstop is only there because Mrs May, in late 2016, drew three red lines for the  UK’s future relationship with the EU….

• no customs Union, 
• no Single Market and 
• no ECJ jurisdiction….while still remaining a party to the Belfast (Good Friday) Agreement.

As was pointed out at the time, these three red lines conflicted with the Belfast Agreement, into which the UK freely entered in 1998, with the approval of the Parliament.

The Belfast Agreement was the basis of which Ireland changed its constitution. No minor matter.

The three red lines, by their very nature, require the UK to “take control” of its borders. That means controls at the border, and the only land border the UK has with the EU is in Ireland .

BORDER CONTROLS WERE INHERENT IN ”TAKING BACK CONTROL”

Border controls were always the essence of Brexit.

Yet the man who led the Brexit campaign in 2016, Boris Johnson, is now saying the opposite, he is saying that the UK will not impose any border controls in Ireland, and that any controls there might be will be someone’s else’s fault.

In fact, under WTO rules, the UK itself will almost certainly have to have border controls of its own once it leaves the EU.

Meanwhile EU law, the EU customs code, requires any EU state, if has a border with any state that is not in the EU Customs Union and Single Market, has to have border controls . The UK knows this well, because its officials helped draw up the EU Customs code. They are familiar with every comma and full stop in it, and know all the customs obligations a no deal Brexit will impose on Ireland.

PRIME MINISTER JOHNSON SAYS HE RESPECTS THE BELFAST AGREEMENT……BUT HOW?

Last week in Belfast, Prime Minister Johnson said that he respects the “letter and the spirit “ of the Belfast Agreement.

The Belfast Agreement calls for close cross border cooperation on issues like the environment, health, agriculture, electricity, education and tourism. It stands to reason that this sort of cooperation will be made much more difficult, if the Northern Ireland and Ireland are no longer part of the same market for goods and services. The UK red lines will also lead to diverging professional qualifications, diverging quality standards for goods and services, and diverging standards of consumer protection, between North and South, and between the UK and Ireland.

Even without physical border controls, that divergence, by its nature, pulls the two parts of Ireland further apart from one another, and pulls Britain and Ireland apart too. It thus upsets the subtle balance between Unionist and Nationalist identities in Northern Ireland, that the Belfast agreement created.

Unfortunately Brexit, of its nature, contradicts the spirit of the Belfast Agreement, to which Boris Johnson says he is fully committed.

BACKSTOP WAS A BRIDGE BETWEEN TWO CONTRADICTORY COMMITMENTS MADE BY THE UK

The backstop was an attempt to build a bridge between these two radically contradictory British positions, Brexit and the Belfast Agreement.

It was not trap set to tie Britain to the EU, but rather an attempt to help the UK reconcile the two contradictory positions it itself had taken up, the one it took in 1998, and the one it took in 2016.

At first, the backstop was to apply to Northern Ireland alone, but it was the UK that requested that it be extended to island of Britain as well.

The fact that it was the UK that asked for this extension of the backstop to Britain, belies the idea that the backstop was some sort of Brussels conspiracy to keep Britain in the EU orbit, a theory promoted in pro Brexit circles.

The UK Parliament has now thrice rejected the Withdrawal Agreement and, with it, the Irish backstop. But the underlying conflict between Brexit and the Belfast Agreement, remains unresolved. The new UK government has no solid proposals of its own for reconciling the basic contradiction. Instead the UK wants to fix responsibility for its own dilemma on Dublin and Brussels.

Against this background, Dominic Raab is wrong to think that it would be easier for the UK to make a future Trade Agreement with Brussels, after it had walked away from the EU, without paying its bills, and without sorting out the details of the divorce it had initiated.

NO DEAL IS POOR BASIS FOR FUTURE NEGOTIATION…

A crash out Brexit is bound to create ill will and could not possibly make the negotiation of a future Agreement easier.

Indeed a moment’s reflection would tell Mr Raab that it would not be in the EU’s interest to give better terms to a country, that had willfully crashed out, than to one which had stood by commitments made by its Prime Minister. To do so would set a dangerous precedent for the EU.

Mr Raab might also remember that any future EU deal with the UK will have to be approved by every EU Parliament, including by Dail Eireann, and by the European Parliament.

A No Deal Brexit now will not finalise anything on 1 November. It will just be the start of years of painful non productive negotiation. This negotiation will be unavoidable because geographically the UK is in the continent of Europe, rather than any other continent that it might prefer to be in. The UK will have to live with the EU and vice versa, because of geography.

A no Deal Brexit on 1 November will poison and prolong what will, in any event, be an essential, but incredibly difficult, negotiation between the UK and the EU on their future relationships.

Compliments of John Bruton