Andrea Leadsom, Leader of the British House of Commons, has proposed a solution to the problem of the Brexit "backstop". (Photo by Jack Taylor/Getty Images)
Andrea Leadsom is the Leader of the House of Commons, that is, she is responsible for arranging government business. She has also proposed a solution to the problem of the "backstop" which is based on the same principle as our own earlier suggestion, namely, to limit the application of the "backstop" to one year renewable by mutual consent.
If there is anyone fresh to the Brexit drama, let us recall that the deal to leave the European Union negotiated by UK PM Theresa May consists of two documents, the Withdrawal Agreement (WA, 585 pages) and the Framework for the Future Relationship (FFR, 26 pages). The WA both winds up the current UK-EU relationship and defines the nature of the "transition period" from March 29 next, the day that the UK officially leaves the EU, to the end of 2020. During that transition period, the FFR is due to be turned into a full-fledged treaty defining the future trading and other relations of the two parties.
The WA has a main section (185 articles) and three Protocols on Ireland/Northern Ireland, Cyprus and Gibraltar (21, 13 and 6 articles), plus various Annexes of technical details. The first Protocol – the so-called "backstop" – is designed to cover a conceivable emergency: if the two sides are still negotiating when the transition period ends, then they will establish a temporary customs union to avoid the creation of a "hard border" between Northern Ireland and the Irish Republic. This arrangement will continue until the negotiations come to an end and the future relationship begins. From the moment that the WA was made public on November 14, however, it was clear from the text of the "backstop" that the UK could be trapped in this "temporary" arrangement for years on end.
The debate on approving the two documents in the UK parliament began on December 3 and was scheduled to end with votes on December 11. Speaker after speaker from May's own Conservative Party denounced the "backstop," while she stubbornly refused to entertain any change to the text. Only on December 10 did she acknowledge that the Commons would reject the WA by a large majority, including a hundred or more MPs from her own party. She then suspended the debate and undertook to return to the EU and demand assurances that the "backstop" must be time limited. That U-turn rescued her on December 12, when the Conservative MPs met and rejected by 200 to 117 a call to depose her from the leadership of her party.
What to Do About It
In our article published on December 3, it was pointed out that the whole kerfuffle over the Protocol on Ireland/Northern Ireland could be ended by making this simple addition to Article 20 of the Protocol:
"The application of this Protocol shall end after twelve months unless the Joint Committee decides to extend its application in whole or in part. The extension shall last for a period of not more than twelve months and any further extensions shall likewise require a decision of the Joint Committee and last for a period of not more than twelve months."
(The "Joint Committee" referred to here is defined in Article 164 of the WA as a body "comprising representatives of the Union and of the United Kingdom" and "co-chaired by the Union and the United Kingdom," with the purpose of being "responsible for the implementation and application" of the WA.)
That is, if the negotiations on the FFR are making progress, then both sides will readily prolong the application of the Protocol. But if the negotiations collapse irreparably, the Protocol will automatically lapse within not more than one year.
So now Andrea Leadsom, speaking to the BBC eight days later on December 11, said:
"That might include an addendum to the Withdrawal Agreement that sets out that Parliament will vote prior to going into a backstop, should that prove necessary, and potentially that the EU parliament and UK parliament must vote every year thereafter to provide that legitimacy for the UK to stay in the backstop, should that prove necessary."
The similarity with our proposal is evident. Unfortunately, her idea is technically impossible as it stands. The WA is an international treaty. The role of the two parliaments is to ratify or reject the treaty as a whole, while the task of implementing the treaty over time belongs jointly to the two governments. That is why a Joint Committee is written into the treaty, for executing this very task.
Nonetheless, there is a way to accommodate Leadsom's wish to grant the UK parliament a say in continuing or terminating the "backstop." It is to take two steps. The first step is to amend the treaty in the way that we suggested. The second step, an internal UK procedure, is to grant Parliament the right to vote on how the government should instruct the UK representatives on the Joint Committee to act. (As to whether the EU parliament should have a similar right, that is an internal EU matter and no business of the UK.)
A Turning of the Tide?
The prospect of the UK leaving the EU on March without any deal, thus to start trading overnight on the terms of the World Trade Organization, has spurred both sides to prepare feverishly for such an outcome. The EU, for example, has announced that from March 30 UK airlines will be able to fly only from the UK to the EU, but not between EU airports. Stupidly, because that ignores the interests of Ireland's Ryanair, which is Europe's largest budget airline and the second largest European airline after the Lufthansa Group. The UK can retaliate by limiting Ryanair to flights between Ireland and the UK, thus banning Ryanair's far more numerous flights from the UK to the rest of the world.
Indeed, Ireland will suffer more than the UK itself from a sudden no-deal Brexit. First, because a "hard border" with Northern Ireland can hardly be avoided. Second, because 80% of Ireland's road traffic to the other 26 countries remaining in the EU passes via Britain and the English Channel ports. So trucks from Europe to the UK will hit one barrier at those ports, but trucks going on to Ireland will hit a second barrier and will have to guarantee somehow that none of their goods are offloaded in the UK on the way. Add to them trucks originating in or ending in the UK itself.
On December 19, the Irish government published its Contingency Action Plan for a no-deal Brexit. It states (p. 6) that a no-deal Brexit would "require an immediate focus on crisis management and possible temporary solutions" and "potentially involve severe macroeconomic, trade and sectoral impacts." Indeed:
"Due to the close economic, highly integrated and concentrated nature of the trading relationship with the UK, amongst all Member States Ireland could be the most adversely affected by the UK's withdrawal from the EU and to the greatest extent in a no deal scenario."
A long list of critical areas occupies the first 65 pages of the 137-page document. Its Annex 1 on relevant EU documents cites a warning (p. 67) in the EU's own Contingency Action Plan (November 13, 2018) that it is a matter of "unilateral measures for damage limitation" which "can only mitigate the most severe consequences of a withdrawal without an agreement." The Irish PM Leo Varadkar is hastily preparing up to 45 pieces of crisis legislation. This is the same Varadkar who has vetoed any reformulation of the "backstop," to Ireland's own evident detriment.
The EU keeps insisting that, in order to protect Ireland, the "backstop" cannot be modified. But if that insistence leads to a no-deal Brexit, it will guarantee that Ireland suffers the very damage that the "backstop" was supposed to prevent!
In the UK, there was a rush of both ministers and MPs to envisage alternatives to the WA and FFR, such as the EU's treaty with Norway or with Canada. They overlooked, first, that such a treaty cannot just be picked off the shelf but would require fresh months of detailed negotiations over hundreds of pages. The deal with Canada, for instance, was held up from October 2016 to February 2018 by opposition from the Wallonia region of Belgium. Second, that May's deal – with the exception of the "backstop" – is definitely better for the UK than those options. In particular, the Norway-style alternative has been thoroughly debunked in an article by Dominic Lawson.
Among the Conservative MPs opposed to May's deal, there is now an emerging consensus that if she can obtain convincing assurances over the "backstop" from the EU, then accepting her deal may be the least bad option. This may be a turning of the tide.
Thus Iain Duncan Smith, a former head of the Conservative Party and one who favoured May's removal over the "backstop" issue, now says: "But obviously we would like to have the EU face up to the fact that we can get a good agreement providing they're prepared to remove the backstop." Likewise, Daniel Kawczynski has said that "many deeply Eurosceptic MPs including himself were reluctantly prepared to accept" the £39 billion bill of May's deal in order to "get the deal over the line," but that "he and his colleagues would never countenance the idea of backing down when it came to the backstop."
Jacob Rees-Mogg, who led the initiative to remove May, at first said that May should nevertheless resign because 117 Conservative MPs had voted to depose her. In the meantime, however, he has congratulated May in the Commons on her re-election, announced that she now has also his confidence in view of the decision of their party, risen to support her in the Commons when she rejected a second referendum, and even defended her there when she came under attack from Jeremy Corbyn, the Labour Party leader. The same report adds that Steve Baker, described as "a key lieutenant in the plot to eject Mrs May," has asserted that "Eurosceptic Conservatives are clear that we accept the democratic decision of our party to have confidence in Theresa May as PM."
May and Leadsom have decided to renew the debate in Parliament on January 9 and to hold the votes in the week beginning on January 14. In the meantime, she will strive to obtain the requisite concessions from the EU, be it an amendment to the "backstop," a codicil to be added to the WA or anything else having equally strong legal force. In whatever case, there must be certainty that the "backstop" shall be temporary and that its indefinite extension shall not be used as a threat to force the UK into concessions on its future relationship with the EU.
So, now that May has ended her own unwise stubbornness, all depends on the EU ending its much more foolish stubbornness to accommodate the UK's just concerns over the "backstop." Here May should make all use of two powerful cards in her hand. One, as already described, is that a no-deal Brexit will cause the greatest harm to Ireland, the very country that the "backstop" is meant to defend.
The other card is the impudent threat of French President Emmanuel Macron, made on November 25, to precipitate and prolong the "backstop" until French fishing boats are given free access to UK coastal waters after Brexit. That is, the "backstop" is not the unimaginable remote threat claimed by the EU (and at first by May herself), but it is undeniably open to abuse by all 27 countries remaining in the EU – as well as by the European Commission itself. If the EU refuses to give May legally binding assurances to ensure a brief application – if any – of the "backstop," it alone will be responsible and worthy of condemnation for every misery that ensues from a no-deal Brexit.
Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.