As another meaningful vote approaches on 14 March, the PM is still seeking changes to the withdrawal agreement around the ‘Irish backstop’, and, in particular, that the UK can secure legal guarantees around its temporal effect, or that the UK could exit unilaterally.
At present neither option is acceptable to the EU, notwithstanding the best endeavours of Attorney General, Geoffrey Cox. The EU has adopted the position that the backstop must remain within the withdrawal agreement and that there will be no renegotiation.
At best, some additional legal guarantees, perhaps in a codicil which fleshes out the practical application of the backstop may be possible, but it is doubtful that this will satisfy a sufficient number of MPs to support the PM’s deal.
The withdrawal agreement is a compromise that was never going to please everyone. It is the product of two years of Article 50 negotiations and reflects that the UK has been an EU Member State for forty-five years.
For the EU, the negotiations have been as much about reaching a deal as they have been about protecting the single market. When considered alongside the requirement of the Good Friday agreement of no hard border on the island of Ireland, it is apparent why the backstop is integral to the withdrawal agreement and why it will remain.
Even when it is replaced by a future UK-EU trade agreement this is likely to include provisions which are not dissimilar to the backstop.
For this reason, the political declaration which lays out a framework for future UK-EU trade relations is of greater significance. These negotiations are, rather optimistically, supposed to conclude by the end of the transition period in December 2020.
The complexity of these negotiations means that this is unlikely to happen and leaves only two options for the UK, either extend the transition period or activate the backstop.
Either way EU law continues to have a significant influence on the UK with the UK becoming a ‘rule taker’ throughout the transition period or if the backstop is activated.
Taking back control was never meant to look like this, was it? But it would be wrong to merely focus on the backstop as the only criticism that can be levelled at the withdrawal agreement.
Indeed, the withdrawal agreement as it currently stands would probably have been negotiated, irrespective of which party was in government.
The EU is an accomplished negotiator and the very fact that, during the Article 50 negotiations, no member state broke rank from the negotiating mandate is testimony to this and to the limited room for manoeuvre for the UK.
If the UK wants an orderly Brexit, then this withdrawal agreement is as good as it gets. The advice should be ‘take it and leave’ and regroup for the next stage of negotiations on the future relationship because this is when things will really get tough.
The withdrawal agreement should not be viewed as the primary problem for a number of reasons, chief of which it is a legal document that is subject to the principles of international law and includes legally binding guarantees for both parties that are subject to a dispute resolution mechanism.
It is the political declaration that the UK should be more concerned about, as this provides a negotiating framework for how the UK and EU will cooperate for the next generation and beyond.
The political declaration states that: ‘The future relationship will be based on a balance of rights and obligations, taking into account the principles of each party… in particular with respect to the integrity of the single market and the customs union and the indivisibility of the four freedoms.
‘It must also ensure the sovereignty of the United Kingdom… while respecting the result of the 2016 referendum including with regard to the development of its independent trade policy and the ending of free movement of people between the Union and the United Kingdom’.
From the outset, both sides have sought a solution that maintains frictionless trade after Brexit, particularly across the Irish border. But neither side has been willing to compromise on its principles.
Rather, each side has attempted to push the other into abandoning its red lines. The UK’s approach has been to make the EU undermine its own treaties and principles which underpin the single market and separate freedom of movement from the other freedoms.
This would enable the UK to continue to enjoy frictionless trade with the EU, while restricting immigration. But, the EU insists that the four freedoms are indivisible and repeats this statement in the political declaration.
The UK has also adopted the position that it could have frictionless trade without being a member of the single market or the customs union and strike its own trade deals with other countries without suffering diminished access to EU markets.
But the EU considers that frictionless trade is a benefit of membership of the single market and customs union and is therefore not available to non-members.
It repeats this in the political declaration and that is what “the integrity of the single market and customs union” means. The political declaration therefore solves nothing, rather it makes already complex future choices even harder.
Either the UK gives up its goals of controlling immigration and independent trade policy for the sake of maintaining frictionless trade with the EU, or, since the political declaration rules out a permanent hard border between parts of the UK the only other outcome is that there must eventually be a hard border on the island of Ireland.
But this will undermine the Good Friday agreement.
Thus, to square the circle of frictionless trade and no hard border, then the answer must surely encompass some future customs union and regulatory alignment with the EU, but in doing so the UK becomes a rule taker in perpetuity.
Those ‘global trade deals’ become a distant memory of the referendum campaign.
In short, when negotiating its future trade relationship, the UK will be confronted by hard choices concerning the legal consequences of this future relationship, including reconciling the obligations of the Good Friday agreement with the ambition of becoming ‘global Britain’ with an independent trade policy.
When considered in that context, approving the withdrawal agreement, which delivers an orderly Brexit, may become viewed as the easy part.
By Professor Adam Cygan, lead researcher at the UK in Changing Europe, ‘Parties, Parliament and the Brexit Process’.