Creating a level playing field for the negotiations on UK Withdrawal

October 6, 2019

 By David Trimble and Roderick Crawford


The Prime Minister’s proposals to replace the Protocol on Ireland/Northern Ireland (the ‘backstop), published this week, have received a cool and sceptical reception in Brussels and have been dismissed by Dublin.  They are seen by both as failing to meet the mark.  However, this may not be so much a result of the content of the UK’s proposals as with the negotiating position of the EU.  There are four problems with this position which if recognised and addressed by all parties would make a deal far more achievable; in short, the Protocol/backstop does not protect the Belfast (Good Friday) Agreement but rather damages it; the EU has taken authority for areas of the negotiations where it either does not have the primary authority or lacks authority; the EU has set objectives for the UK proposals that the current Protocol does not meet and it has changed — and appears to be still changing — those objectives. Understanding the implications of these could break the impasse.

Firstly, the Protocol does not succeed in squaring the ambitious aims of the EU in negotiating the UK’s withdrawal in such a way that the single market is secured, a hard border avoided and the Good Friday Agreement is upheld — as well as the protection of the all-island economy and ensuring continued North-South co-operation. 

It has become increasingly clear that far from ‘protect the Good Friday Agreement in all its dimensions’ (Article 1.3) the Protocol actually wrecks the Good Friday Agreement.   The Unionists in Northern Ireland have been consistent in this view since publication of the Withdrawal Agreement in November 2018; their arguments have developed over time and are now recognised by the government in its 19 August 2019 letter to Donald Tusk; they are also beginning to be heard in the media.  In essence, they are that the Protocol, if it was activated, would alter the governance of Northern Ireland, without consent, reduce the powers of the devolved administration, override the checks and balances on North-South co-operation which were key to getting agreement in 1998, alter the status of Northern Ireland as well as undermine democracy there.  In short, the constitutional settlement of 1998 would be overturned and the principles that underpin its workings overridden.  

Failure to uphold the Good Friday Agreement is not the only problem with the Protocol. Another aim of the Protocol is to ‘maintain the conditions necessary for North-South co-operation’; however, North-South co-operation is based on consent, not on EU law, as our July 22 article for Policy Exchange made clear. The Protocol overrules the Good Friday Agreement as regards North-South co-operation. 

The second problem is that the preamble to the Protocol guarantees the essential state functions and territorial integrity of the UK, summarising Article 4.2 of the Treaty on European Union (TEU).  Yet, the Protocol does exactly the opposite, removing essential state functions and disrespecting UK territorial integrity, a point the UK’s 19 August letter raises, suggesting that the Protocol is in breach of the TEU.  It is hard to justify such a significant intervention in the internal governance of a state; the current case for avoiding a hard border now seems to be that it is necessary for protecting the all-island economy, yet this all-island economy is a fraction of total Irish exports: according to Dan O’Brien, a leading Irish economist, it represents only 1.5 per cent of Irish goods trade, down from 2.7 per cent in 1998.  The Prime Minster’s letter of 2 October estimates trade between Northern Ireland and Ireland as a little over one per cent.  This hardly justifies such a significant change in the UK’s internal arrangements, not least in undermining the Good Friday Agreement settlement. 

It is hard to see what legal authority the EU has in making a demand on the UK that it imposes a customs border within its own territory to avoid one with what will now be a third country.  Hard as that may be for the Republic of Ireland, the territorial integrity of the UK is recognised and has to be respected by the EU.

The third problem is that, despite clear conflicts with the letter and spirit of the Belfast (Good Friday) Agreement, the Commission claims that the Protocol/backstop represents the only identified plan that secures the single market, avoids a hard border and protects the Good Friday Agreement.  This is not true; the Protocol/backstop does not protect the Good Friday Agreement (or North-South co-operation).  

This has major implications for the current negotiations.  The onus has been on the UK to come up with alternatives to the Protocol, alternatives that are to provide a workable legal solution to the problem of Brexit as posed by the amended negotiating guidelines and directives of the EU.  However, the Protocol is not, in the language of the Commission, a ‘legally operational solution’ because it fails to protect the Good Friday Agreement.   The Commission has created a playing field that is not level — and that cannot be acceptable.  The UK cannot be held to a standard that the current Withdrawal Agreement fails to reach.  In its latest report to the EU27, UK non-paper proposals have been assessed as failing to reach the key criteria — though mention of the Good Friday Agreement is missing.  The same assessment has been given by the Commission to the UK proposals formally released this week, with the Irish government effectively rejecting them as not meeting the objectives of the Protocol to the Withdrawal Agreement.  But if UK proposals do fail to meet all these criteria the current Protocol fails more seriously by not upholding the Good Friday Agreement. 

Faced with these arguments and this evidence of the problems with the Protocol and the resulting implications, the Commission has adopted a policy of ‘see no evil, hear no evil, speak no evil’.  That policy appears to have now developed to the point where the priority of ‘protecting the Good Friday Agreement in all its dimensions’ has been removed from the criteria.  Note the statement from Jean Claude Juncker in response to his call with Leo Varadkar on 3 October: ‘Accepting such a proposal would not meet all the objectives of the backstop: preventing a hard border, preserving North-South cooperation and the all-island economy, and protecting the EU’s Single Market and Ireland’s place in it’.  This is a clear abandonment of the original objectives that were agreed by the EU and openly articulated by them until recently. 

 This leads to the fourth problem — that the EU has allowed a negotiating position to develop that is unlikely to produce the result that Article 50 is designed to deliver.  The hardening of the original negotiating guidelines at Ireland’s insistence has made the chances of resolving a complex problem more remote. Upholding the Good Friday Agreement, avoiding a hard border, securing the single market, protecting north-south co-operation and the all-island economy whilst not impinging on the UK state’s functions and territorial integrity contain too many contradictions for each one of them to be fully realised; the original guidelines did not require this, with avoiding a hard border only being an ‘aim’.  The guidelines exist to achieve a negotiated orderly withdrawal, not prevent one, and they cannot override European treaty law (TEU/TFEU) or the Good Friday Agreement.   In recognising all our responsibilities in arriving at this point — including the previous UK government’s failure to stand up for the Good Friday Agreement and insist on realistic negotiating objectives from the EU — we could still solve this problem in good time.

The European Council appointed the Commission as the sole negotiator on the UK’s withdrawal from the EU; there would be no bilateral negotiations between the UK and other Member States.  However, that did not apply where UK withdrawal had implications for bilateral agreements outside of the competence or the primary competence of the EU — EU negotiating guidelines recognise UK-Irish bilateral arrangements in its Core Principles guiding the negotiation process (Section III paragraph 11).  Whilst the EU (and its Member States) have the responsibility for securing the Single Market, the UK, Ireland and the devolved administration and Assembly in Northern Ireland have legal authority based on their rights, responsibilities and obligations under the Good Friday Agreement (which is international law) and these include cross-border matters.  The EU, in seeking to monopolise negotiations for the UK’s withdrawal has crossed the line into areas where legal authority is primarily held by sovereign Member States and regulated primarily, as far as it is regulated, by the Good Friday Agreement and not by the EU. 

What the EU and UK could now do, in assessing current UK proposals, is to return to the original negotiating guidelines of April/May 2017.  Applying these guidelines would allow the Withdrawal Agreement with the new UK Protocol to be agreed; detailed implementation questions of how to avoid, as far as possible, a hard customs border and resolve any other Good Friday Agreement related matters, including North-South co-operation, could be put back to the British and Irish, whose responsibility these matters are.  They would work bilaterally using the Good Friday Agreement architecture and include the Northern Ireland Assembly (which must be restored) where required. After all, without strong British-Irish co-operation there are no practical answers to the problem of managing customs on a North-South basis.  Working together, however, solutions could be piloted early in the transition period before final systems are put in place, to the satisfaction of all the parties’ legal obligations whilst meeting as far as possible their political objectives.

This would achieve not only the purpose of the European Council’s mandate to achieve an orderly withdrawal of the UK from the EU, but do so in such a way that is in accordance with the Good Friday Agreement and European Law, not least in respecting Article 4 and 5 of the Treaty on European Union (TEU), much of which has been compromised as negotiating positions have developed since 2017. 

The result of the current negotiation criteria is not only deadlock and instability, but a Withdrawal Agreement that categorically fails to meet the aims set by the EU itself and prevents it fulfilling its obligations under Article 50.   Recognising this and the reasons for that deadlock will restore all our incentives to find an achievable solution.   We need a new level-playing field for the withdrawal negotiations that prioritises respect not only for the legal order of the EU but of the international treaty between the UK and Ireland.The current UK proposals on amending the Withdrawal Agreement, as outlined by Boris Johnson in his letter to Jean-Claude Juncker last week, meet these requirements in full. 

Concerns on the border would be more than addressed by increased British-Irish co-operation and a joint determination to make these proposals work using the institutions of the Good Friday Agreement. Together, the British and Irish are well placed to maximise the potential benefits of the ‘imaginative and flexible solutions’ the EU negotiators have always realised would be necessary to secure the Single Market whilst avoiding a hard border.  It would, unlike the current EU proposals, be a ‘legally operative solution’ meeting all the legally required criteria, and fulfil the aims of Article 50, whilst respecting key principles such as subsidiarity and proportionality. 

Lord Trimble won the Nobel Peace Prize for his role in securing the 1998 Belfast Agreement. He was First Minister of Northern Ireland 1998-2002 and leader of the Ulster Unionist Party (UUP) from 1995-2005. He sits as a Conservative peer in the House of Lords.  Roderick Crawford, founder and editor of Parliamentary Brief (1992-2012), works in conflict resolution.

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