It is increasingly likely that, unless things change, on 1 January 2021, we will have a no deal Brexit. The only agreement between the EU and the UK would then be the already ratified Withdrawal Agreement.
There are only 50 working days left in which to make a broader agreement. The consequences of a failure to do so for Ireland will be as profound, and even as long lasting, that those of Covid 19.
A failure to reach an EU/UK Agreement would mean a deep rift between the UK and Ireland.
It would mean heightened tensions within Northern Ireland (NI), disruptions to century’s old business relations, and a succession of high profile and prolonged court cases between the EU and the UK dragging on for years.
Issues, on which agreement could easily have been settled in amicable give and take negotiations, will be used as hostages or for leverage on other issues. The economic and political damage would be incalculable.
We must do everything we can to avoid this.
Changing the EU Trade Commissioner in such circumstances would be dangerous. Trying to change horses in mid stream is always difficult. But attempting to do so at the height of a flood, in high winds, would be even more so.
The EU would lose an exceptionally competent Trade Commissioner when he was never more needed. An Irishman would no longer hold the Trade portfolio. The independence of the European commission, a vital ingredient in the EU’s success would have been compromised…a huge loss for all smaller EU states.
According to Michel Barnier, the EU/UK talks, which ended last week, seemed at times to be going “backwards rather than forwards”.
The impasse has been reached for three reasons.
The meaning of sovereignty
Firstly, the two sides have set themselves incompatible objectives.
The EU side wants a “wide ranging economic partnership” between the UK and the EU with” a level playing field for open and fair competition”. The UK also agreed to this objective in the joint political declaration made with the EU at the time of the Withdrawal Agreement.
Since it agreed to this, the UK has had a General Election, and it has changed its mind. Now it is insisting, in the uncompromising words of it chief negotiator, on “sovereign control over our laws, our borders, and our waters”.
This formula fails to take account of the fact that any Agreement the UK might make with the EU (or with anyone else) on standards for goods, services or food stuffs necessarily involves a diminution of sovereign control.
Even being in the World Trade Organisation (WTO) involves accepting its rulings which are a diminution of “sovereign control”. This is why Donald Trump does not like the WTO and is trying to undermine it.
The Withdrawal Agreement from the EU (WA), which the UK has already ratified, also involves a diminution of sovereign control by Westminster over the laws that will apply in Northern Ireland (NI) and thus within the UK.
The WA obliges the UK to apply EU laws on tariffs and standards to goods entering NI from Britain, ie. going from one part of the UK to another.
This obligation is one of the reasons given by a group of UK parliamentarians, including Ian Duncan Smith, David Trimble, Bill Cash, Owen Patterson and Sammy Wilson, for wanting the UK to withdraw from the Withdrawal Agreement, even though most of them voted for it last year!
Sovereignty is a metaphysical concept, not a practical policy.
Attempting to apply it literally would make structured, and predictable, international cooperation between states impossible. That is not understood by many in the UK Conservative Party.
The method of negotiation
The second difficulty is one of negotiating method. The legal and political timetables do not gel.
The UK wants to discuss the legal texts of a possible Free Trade Agreement first, and leave the controversial issues, like level playing field competition and fisheries, over until the endgame in October.
The EU side wants serious engagement to start on these controversial issues straight away.
Any resolution of these controversial issues will require complex legal drafting, which cannot be left to the last minute. After all, these legal texts will have to be approved by The EU and UK Parliaments before the end of this year.
There can be no ambiguities or late night sloppy drafting.
The problem is that the UK negotiator cannot yet get instructions, on the compromises he might make, from Boris Johnson. Boris Johnson is preoccupied instead with Covid 19, and with keeping the likes of Ian Duncan Smith and Co. onside. He is a last minute type of guy.
Trade relations with other blocs
The Third difficulty is that of making provision for with the Trade Agreements the UK wants to make in future with other countries like the US, Japan and New Zealand. Freedom to make such deals was presented to UK voters as one of the benefits of Brexit.
The underlying problem here is that the UK government has yet to make up its mind on whether it will continue with the EU’s strict precautionary policy on food safety, or adopt the more permissive approach favoured by the US.
Similar policy choices will have to be made by the UK on chemicals, energy efficiency displays, and geographical indicators.
The more the UK diverges from existing EU standards on these issues, the more intrusive will have to be the controls on goods coming into Northern Ireland from Britain, and the more acute will be the distress in Unionist circles in NI.
Issues that are uncontroversial in themselves will assume vast symbolic significance, and threaten the peace of our island.
The UK is likely be forced to make side deals with the US on issues like hormone treated beef, GMOs and chlorinated chicken. The US questions the scientific basis for the existing EU restrictions, and has won a WTO case on beef on that basis. It would probably win on chlorinated chicken too.
If the UK conceded to the US on hormones and chlorination, this would create control problems at the border between the UK and the EU, wherever that border is in Ireland.
Either UK officials would enforce EU rules on hormones and chlorination on entry of beef or chicken to this island, or there would be a huge international court case.
All this shows that, in the absence of some sort of Partnership Agreement between the EU and the UK, relations could spiral out of control.
Ireland, and the EU, needs its best team on the pitch to ensure that this does not happen!
Compliments of John Bruton, former Fine Gael politician and Taoiseach and Ambassador of the European Union to the United States | This article was first published in The Irish Farmers Journal.