The way forward: can a protocol to the Withdrawal Agreement save the Prime Minister’s deal?

So this is it. MPs have voted down the Withdrawal Agreement negotiated by the Prime Minister’s government, and while it did not really come as a surprise to anyone, the margin still stings. It is the largest defeat for a sitting government in history.

Whichever way you turn now, you run into one basic problem: there is a majority in Parliament against every Brexit outcome, but in favour of none. In this situation creativity is what is needed.

In the following I dare propose a solution for the PM’s Brexit conundrum: The addition of a Protocol to the Withdrawal Agreement that would allow MPs to get on board and save the Prime Minister’s deal, as their concerns would be fully met. The proposal would equally allow the EU to maintain its stance of not renegotiating the Withdrawal Agreement.

But before I present my proposal, it is worth running through the most basic options the UK has, pointing out the pay-offs involved.

1) Leave without a deal

There seem to be clear majorities in both Houses against leaving the EU without a deal. The House of Lords has basically said as much when it agreed a motion by Baroness Smith of Basildon, amongst others, rejecting a no deal outcome by 321 to 153 votes.

A no deal Brexit would do significant harm both to the UK’s and the EU’s economies and their relationship. The harm results not from the fact that trading on WTO terms is impossible – that has always been a strawman argument – but rather because the UK would move from frictionless trade under EU law to more difficult conditions under WTO law.

But no matter how harmful a no deal would be and no matter how often Parliament votes to ‘take no deal off the table’, it is the default option under the law. The only thing that can prevent a no deal Brexit is agreement on a (viable) alternative.

2) Remain

The Wightman case led the European Court of Justice to bring clarity about another option open to the UK: unilaterally revoking the Brexit notice. Politically, this would not be possible without another referendum. Whether and to what extent such a referendum is desirable, would result in more divisions or heal them, and whether the UK could and would be a productive member of the EU after such a referendum, are all open questions.

3) A Withdrawal Agreement

The most likely way out of the conundrum – and the one that the government appears to take – continues to be a withdrawal agreement between the UK and the EU. But the odds seem stacked against this approach as well: the Withdrawal Agreement negotiated by the government is the first agreement of the UK in living memory voted down by its Parliament.

The EU has taken a renegotiation largely off the table. MPs voting against the agreement were, however, unsatisfied by assurances given by the EU that fell short of actually changing the treaty.

When we look at the concerns of MPs in more detail, however, many aspects of the Withdrawal Agreement seem to be acceptable. The main problem with the Agreement is the (not time-limited) Northern Ireland backstop. In the eyes of the EU, a backstop that is not time-limited is necessary to remove the need for a border in Northern Ireland, thus preserving the peace process for good.

In the eyes of many MPs, however, a backstop without a defined end that keeps Northern Ireland in many EU rules and the UK in a customs union with the EU (even though achieving the latter was a major win for UK negotiators) is not acceptable.

This is not to say that they do not agree with the need to keep Ireland without a hard border. Many are, however, convinced that technical solutions are available to remove the need for a border, even if Northern Ireland is in the UK’s regulatory realm while Ireland is an EU member state.

The Withdrawal Agreement provides for the possibility that the backstop can cease to apply if it is no longer necessary (e.g. because technical measures become available), but such a decision would be taken jointly by the EU and the UK – so that the UK could not unilaterally end it. The EU is not convinced that technical means currently available could solve the border problem. On substance, we are at an impasse.

When international negotiations on substance come to an impasse, however, there are at times procedural solutions. It is precisely such a procedural solution I propose. Both parties could agree on parameters and a procedure to put in place appropriate technological border solutions, agreeing that as soon as the parameters are fulfilled, the need for the backstop falls away.

Such parameters could involve test runs, agreed levels of border security (such as maximum levels of smuggling) and milestones for building the necessary infrastructure for behind-the-border controls.

Both sides could conceive of such a solution as a negotiation victory: one gains a clear roadmap to a technical solution it is convinced exists, and the other would have the safety of agreed parameters ensuring that a technical solution must actually work before it is implemented.

The approach also follows common sense: currently no border in the world actually relies solely on technological approaches away from the border. Using the border of a region that essentially suffered a civil war as a large-scale trial does not seem the most appropriate approach.

Formally, the agreed parameters could be drafted as an Annex to the NI Protocol without touching the rest of the Agreement, and would thus respect the EU’s red line of not altering the wording of the Agreement.

The Annex would explicitly refer to Art. 20 of the NI Protocol (“The Protocol is, in whole, no longer necessary to achieve its objectives …”), ensuring that where the UK can show that the parameters are fulfilled and the EU nevertheless blocks consensus in the Joint Committee, arbitration will resolve the issue in the UK’s favour.

Where the EU can show that the parameters are not fulfilled, however, it could continue to legitimately block the UK’s wish to remove the Protocol.

Without a doubt the odds are as stacked against this proposal as they are against any other way out of the Brexit conundrum. Not least of all it will be difficult for the UK government to convince the EU that any compromise it makes can deliver a majority in Parliament.

After all, the EU crossed many of its red lines when it offered the UK a whole-UK customs union in the Withdrawal Agreement as part of the NI backstop, and yet the government could not deliver a deal.

Whether or not you think that whole-UK customs union is an advantage or actually a disadvantage is quite irrelevant to this question. The government will have to find an answer to it if it wants to see any movement.

By Holger Hestermeyer, British Academy mid-career fellow and Shell Reader in International Dispute Resolution at King’s College London.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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