Commenting on yesterday’s publication of a draft treaty on key aspects of the UK’ departure from the EU, the University’s Professor Feargal Cochrane says it is ‘notable for a number of reasons.
‘First it is evidence that we are moving from the propaganda phase into the operational dimension of the Brexit negotiations. This document was carefully worded, precise and as a lawyer would draft your will – based on worst case scenarios rather than optimistic aspirations.
‘Previous documents and speeches have been littered with flowery aspirations and positive vibes of what everyone would like to happen. We have run out of time for that now and the EU is putting meat on the bone of the implications of the Brexit referendum decision taken in the UK on 23 June 2016.
‘They are genuinely surprised by the umbrage being taken by some in the UK, given that all of this has been precipitated by the UK referendum decision compounded by over 20 months of modest ideas and clarity coming from the UK over the divorce arrangements.
‘The draft treaty is significant for several other reasons. It has sucked the air out of the aspirational – ‘it will be all right on the night’, ‘solutions will turn up when we need them’ rhetoric of UK politicians for the last 20 months. It essentially is written on the basis of ‘what if it isn’t all right?’
‘It also confronts the UK with its own agreement made last December and its own declared policy objectives over Northern Ireland. The implications of these agreements have squeezed the UK into demonstrating that they may not have been entirely committed to their own aspirational language at the time.
‘To recap, the UK committed itself to having no hard border in Ireland and to the integrity of the 1998 Good Friday Agreement. It committed itself in Article 49 of the December Agreement to a backstop default policy of full alignment in Northern Ireland over tariffs and trade with the Irish Republic (viz the European Union).
‘When the DUP threatened to withdraw its support for the government over the possibility that NI would be treated differently to other parts of the UK, Article 50 was added, which committed the government to full alignment of the whole of the UK with the Irish Republic as a backstop option.
‘Yesterday these commitments were written up by the EU lawyers and suddenly the government is shocked by the suggestion that such a backstop would be mooted – with Theresa May claiming that it would threaten the ‘constitutional integrity of the United Kingdom’. Article 50 was not reflected in the Treaty as the EU views that as really a matter for the UK to sort out on its own.
‘So the implications are as follows: The UK government is running out of tarmac on the road to Brexit. The aspirational language and bluster from David Davis and Boris Johnston has now been replaced by some quite stark choices –both for the current government and for the UK as an imagined community.
‘Option one – the government manages to rewrite or significantly alter the draft treaty. There may be some movement over syntax – it is a draft document- but there is unlikely to be much movement over the meaning especially over the concept of a ‘common regulatory area’ across the island of Ireland.
‘Whatever way that is eventually dressed up it is likely to mean the same thing – no customs border in Ireland (though there is less clarity over the movement of people). The EU and the Irish government have been aligned on this for some time and it amounts to an article of faith. It also should not surprise us that the EU is more interested in supporting member states that want to stay in the EU than those who want to leave –and who do so with such poor manners.
‘Option two – the backstop option is accepted but superseded by other more positive arrangements such as a bespoke trade deal between the UK and EU that renders the backstop redundant. This may emerge in due course but to date over 20 months after the Brexit vote, there are no plans in the public realm that have been put forward by the UK for consideration by the EU.
‘This doesn’t mean that they never will, but on currently evidence it looks unlikely – not least because there is not enough time left before the UK jumps out of the EU into some transitional space and because the current government has had significant difficulty agreeing a common direction of travel on the whole Brexit project.
‘Option three: The government calls the bluff of the DUP and/or is prepared to fall or go to another election on the basis of accepting the ‘common regulatory area’ in Ireland and placing border checks in the Irish sea – effectively putting the border at the perimeter of GB. This would outrage the DUP and some Tory Brexit supporters – but would solve the border problem, and gain support from Ireland, the EU and most of the other EU states needed for a comprehensive Brexit deal.
‘Option four: The government keeps the DUP onside but drags GB into the common regulatory area’ so the UK stays as one coherent unit – but it all effectively remains in the Customs Union. This would enrage the hard Brexit faction in the Tory Party and make a mockery of the entire Brexit project – as in effect the UK would still remain in the Customs Union while losing most of the benefits of EU membership.
‘None of these options are easy. They would all be difficult for a strong leader with a united party to deliver. The current Prime Minister and her party are the antithesis of this. Theresa May appears to have an anti-Midas touch as everything she touches turns to ashes while her party is divided over which type of Brexit – if any – they actually want.
‘We are starting to get to the endgame now however, and yesterday’s draft Treaty document requires a clear response from the British side. This will have to go beyond stating what they would like to happen – and move into a space where they make clear proposals about what they propose to actually do and the mechanics of how they will actually accomplish it.’
Professor Feargal Cochrane
Feargal Cochrane is vice chair of the Political Studies Association and professor of International Conflict Analysis at the University of Kent. He is director of the Conflict Analysis Research Centre and deputy head of the School of Politics and International Relations at Kent. His current research is examining the impact of Brexit on the peace process in Northern Ireland and its devolved institutions.