Northern Ireland and the Withdrawal Agreement

When the latest draft of the Withdrawal Agreement went online on Wednesday evening, it was to the innocuously titled Protocol on Ireland/Northern Ireland that many analysts and commentators turned.

In these 29 pages, buried in the middle of a weighty text of 585 pages, lay the purported cause of the cabinet resignations and no confidence letters that troubled Theresa May in the immediate wake of its publication.

Why? Well, the Protocol and its ten associated annexes contain the essence and detail of the ‘backstop’ provisions. Controversial for some, welcomed by others, this backstop, if triggered at the end of the transition period, will be the means by which a hard border on the island of Ireland is avoided.

Much of the controversy around the backstop assumes that it will be the final landing zone of the UK-EU relationship.

But the Withdrawal Agreement is very clear: the EU and the UK will ‘use their best endeavours’ (Protocol, Article 2(1)) to find agreement by the end of 2020 that avoids the need to trigger the Protocol.

Moreover, even if it comes into play, the Protocol is ‘intended to apply only temporarily’ and thus only ‘unless and until [its provisions] are superseded, in whole or in part, by a subsequent agreement’ (Protocol, Article 1(4)).

Testament to the negotiating line of the UK in the past eight months is the fact that the Protocol is significantly different to its previous version in March 2018. Most notably, it contains an all-UK customs arrangement, as well as the scope for Northern Ireland to be accorded special treatment by the EU.

Meeting the commitments made in the Joint Report of December 2017, the purpose of the backstop, unless and until a future UK-EU agreement manages to do so, is stated to be:

to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 [Good Friday or Belfast] Agreement in all its dimensions (Protocol, Article 1(3))

Rather than paring back these commitments, the UK appears to have added to them in the course of the past few months. This is evident in the new additions to Article 1 of the Protocol:

  1. This Protocol is without prejudice to the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people.
  2. This Protocol respects the essential State functions and territorial integrity of the United Kingdom.

Mention of the principle of consent and of the ‘territorial integrity’ of the UK here hold little legal sway – their legal basis is in UK legislation – but they are enormously important principles for unionists in Northern Ireland and elsewhere.

Their inclusion so prominently in the Protocol reflects an attempt to ameliorate the concerns of the Democratic Unionist Party, which has supported May under the confidence and supply arrangement.

Further addressing unionist concerns is the fact that the Protocol now not only seeks to avoid a hard land border between Northern Ireland and Ireland but also any hardening of the one between Great Britain and Northern Ireland.

Inevitably this entails maintaining close ties between the UK and the EU. And it is in how to achieve this that the controversy lies for May.

What has provoked the ire of many Brexiteers is that, if it is used, the backstop will see the UK as a whole in a ‘bare bones’ customs union with the EU. May has insisted on this so as to avoid the need for customs checks on the Irish border or within the UK.

In order to meet the challenge of keeping the Irish border as open as possible, the Protocol contains particular provisions relating to Northern Ireland which would effectively see it remain in ‘the’ EU customs union.

It also contains provisions for maintaining a level of regulatory alignment between Northern Ireland and the EU necessary to maintain the free movement of goods across the Irish border.

This includes staying aligned with EU VAT rules in respect of goods, and in relation to agricultural and fisheries products, and maintaining the Sanitary and Phytosanitary regime on the island of Ireland.

All this was originally envisaged in the first draft of the Protocol. What has been added since March 2018 is the detail, through previously unpublished annexes, of the range of regulatory alignment.

But, as required to protect the 1998 Good Friday (Belfast) Agreement, the scope of the Protocol extends beyond trade. This is where we also see continuity from the previous drafts of the Withdrawal Agreement.

It includes provisions on the rights of individuals (where there is to be no diminution of the rights set out in the 1998 Agreement); bilateral UK-Ireland arrangements as part of the Common Travel Area; state aid and competition rules; arrangements for maintaining the single electricity market and other areas of North-South cooperation.

There are also new bodies proposed to oversee this, including a dedicated mechanism to ensure no diminution of rights in Northern Ireland, and a ‘Joint Consultative Working Group’ comprising UK and EU representatives.

It will meet at least monthly to exchange information, notably on relevant EU policy and legislative proposals in areas covered by the Protocol. This will be a form of dedicated decision-shaping.

Plus, as originally envisaged there will be a Specialised Committee with overall responsibility for the implementation of the Protocol. Its work will begin as soon as the UK exits the EU.

Also new are the means by which the implementation, application, supervision and enforcement of EU law will be handled. In previous drafts, this was to be the responsibility of EU institutions and bodies.

Now there is to be a role for the UK authorities in the implementation and application processes. Practical arrangements are to be determined by the UK-EU Joint Committee overseeing the implementation of the whole Withdrawal Agreement.

For the interpretation of EU law under the Protocol, the responsible institution will be the Court of Justice of the EU. For other areas, it will be the dispute-settlement mechanisms for the Withdrawal Agreement generally.

Finally, the latest draft of the Protocol is more expansive on how the backstop arrangements can be ended. The Protocol will apply from the end of the transition period – possibly extended – unless an adequate agreement on UK-EU relations is ready to implement.

Once in play, the backstop cannot be unilaterally ended. Instead a dedicated review mechanism will be available to allow consideration of whether the Protocol ‘is, in whole or in part, no longer necessary to achieve the objectives’ of enabling continued North-South cooperation, avoiding a hard border and protecting the 1998 Agreement in all its dimensions.

Any decision that all or part of the Protocol shall cease to apply will be taken by ‘mutual consent’ of the UK and the EU in the Joint Committee responsible for the implementation of application of the Withdrawal Agreement.

The Joint Committee may ‘seek an opinion from institutions created by the 1998 Agreement’. Conceived to protect these institutions – the future operation of the Protocol may therefore yet end up being shaped by them.

By Dr Katy Hayward, reader in Sociology at Queen’s University Belfast and David Phinnemore, professor of European politics at Queen’s University Belfast.

Ryan DakinNorthern Ireland and the Withdrawal Agreement

If Theresa May gets her Brexit deal here’s why you should expect financial markets to go up

The secret’s out. The government is making plans to sell its Brexit deal to MPs. And much (rather mean) hilarity has ensued.

Yet behind the silliness, the ham-fistedness, and the plain bad spelling, there’s a serious point. The Government needs to sell its deal to the public and – first and foremost – to MPs. And it is counting on the fact of having got a deal in the first place to help swing the mood.

The context and mood will shift once a deal is reached. For one thing, the optics will change. Mr Raab and Monsieur Barnier, for so long adversaries, will appear on a stage together trumpeting their joint achievement.

The European Council will welcome Mrs May, doubtless praise her dogged approach to the negotiations, and welcome a deal that works for everyone.

Returning home, the PM might even be moved to make a statement before addressing MPs, stressing that she has achieved the best possible outcome in the face of significant adversity. And she may well repeat the canard that parliament faces a stark choice between what she has negotiated and no deal at all.

And meanwhile, behind the scenes, there will be apparently more objective indicators of approval.

The markets will react. Remember how the pound bounced against both the euro and the dollar in the wake of a story last week that some kind of minimal deal had been done on financial services? Logically, one would expect a far more marked reaction to a real deal being signed.

Pessimism has been baked into the markets for months, so there is every chance that they will deliver Philip Hammond’s famous deal dividend.

And as the stock market reacts, a half-competent government would attempt to coral businesses into supporting its deal. The government’s comms grid suggests “lining up 25 top business voices including Carolyn Fairburn”.

At this point, many firms have abandoned hope of a business-friendly Brexit, pressing instead for the maximum amount of certainty as soon as possible. A withdrawal deal encompassing a (potentially extendable) transition of twenty-one months would provide a degree of that.

Meanwhile, the Treasury will release its long-awaited forecasts on the economic implications of Brexit. None of them, as we know, will be pretty.

But expect the deal done to stack up well against most, at least, of the alternatives. In particular, expect the comparison with the damage that a Canada-style deal would do to be underlined in red.

As domestic voices are prompted to speak out, the leaked grid also highlights the importance of international support. It suggests attempting to get “lots of world leaders eg Japanese PM to tweet support for the deal [sic]”.

Opponents might once again find themselves wrong footed as those whose arguments on Brexit they have applauded to date (whether that be Leo Varadkar or Shinzo Abe) line up beside the Prime Minister to sell what she has achieved. It is of course ultimately up to MPs to decide the fate of the deal.

Yet, as John Curtice has argued, much will also depend on how it is sold to the public. Recent polling by Survation, showed the largest group of people (34 per cent) didn’t know whether they’d support the deal while 33 per cent said they’d reject it and 26% would accept it.

This confirms Curtice’s view that there’ll be a lot to play for once the deal is done.

Stronger polling support would make it harder for MPs to justify opposing it, particularly if all they can offer in its place is chaos and uncertainty. Hence the programmed speaking tour which would see the PM visit a number of parts of the UK to promote her Brexit plan.

Now obviously all this may not be enough to secure the parliamentary majority that the Prime Minister needs. We simply do not know how MPs are going to act, and for many nor do they. That being said, the post-deal world will look very different to the pre-deal one.

And in that sense at least, it might help Mrs May get what she has secured over the line.

By Anand Menon, director, and Matt Bevington, policy researcher, at The UK in a Changing Europe. This piece originally featured in The Independent.

Ryan DakinIf Theresa May gets her Brexit deal here’s why you should expect financial markets to go up