In the turbulent weeks since Boris Johnson became prime minister of the United Kingdom, he has registered his first comparative success with his proposal for a change in Theresa May’s Brexit deal. On the one hand, he has forced the EU negotiators to abandon their adamant refusal hitherto to reopen the wording of that deal; on the other, his proposal – with its firm emphasis upon the UK’s essential interests – has united almost all Conservative MPs behind it.

The contrast with his previous missteps is striking. There was his unprecedented, unlawful and unnecessary attempt to prorogue Parliament for a whole month instead of the customary few days. This, in turn, prompted opponents of a no-deal Brexit to rush through legislation on the one day left before the prorogation: the European Union (Withdrawal) (No 2) Act 2019, which orders Johnson to request from the EU a deferral of the looming Brexit day from October 31 to January 31 if there is still no agreed Brexit deal on October 19. Johnson then expelled from the party 21 Conservative MPs who voted for that legislation – also unprecedented in recent times. Remember that dozens of Conservatives, including Johnson himself twice, had voted against May’s deal earlier in the year, yet she did not even think of punishing them. With their expulsion, moreover, Johnson lost a majority in the Commons for anything.

What can be the explanation? Maybe it depends on whom Johnson listens to. Those missteps involved advisors in Johnson’s office, the naïve Nikki da Costa and the cunning (but not so clever) Dominic Cummings. A different team, led by David George Hamilton Frost, prepared the Brexit proposal.

How We Got Here

Let us briefly recall where we are. After the election of June 2017, Theresa May’s Conservative government lacked a majority in the Commons and made an agreement with the ten MPs of the Democratic Unionist Party of Northern Ireland (DUP) in order to survive. Her major task was to implement the referendum of June 2016, in which the public voted by 17.41 million against 16.14 million to leave the European Union. Negotiations resulted in a Brexit deal in November 2018, consisting of the Withdrawal Agreement (WA, 584 pages + index) and the Framework for the Future Relationship (FFR, 26 pages).

This deal failed to pass the Commons three times because the DUP voted against it along with a number of Conservative MPs (34 the third time round on March 29, 2019). Opposition centred on the so-called “Backstop” (Protocol on Ireland/Northern Ireland, 174 pages), a part of the WA designed to prevent the emergence of a hard border between the two parts of Ireland during negations to turn the FFR into a full-scale treaty defining future relations between the UK and the EU. May secured an extension to the deadline for leaving the EU from March 31 to October 31, 2019, but later resigned. The Conservative Party national membership chose Boris Johnson to replace her. He became Prime Minister promising to leave the EU on October 31 with or without a deal.

As things stand, Johnson cannot leave without a deal. The Act mentioned above not only orders Johnson to request a further Brexit extension if no deal is agreed by October 19; it even specifies the wording of the letter that he is required to deliver to Brussels. The EU will likely grant the extension, because on September 18 the European Parliament already approved it in principle by a very large majority (544 to 126 with 38 abstentions).

Johnson’s advisors, led by Dominic Cummings, are seeking for loopholes whereby he can evade the Act. These are the same advisors who concocted the unlawful prorogation. Should he follow their advice, the issue will again go to the Supreme Court, which is likely to take a much more severe view of the matter than even in its Judgment on the prorogation. Johnson could be found “in contempt of Parliament,” for which an offender normally goes straight to prison. We hope that Johnson will not follow that path, but we saw how Johnson followed those advisors from one misstep to another.

Indeed, Johnson has claimed paradoxically that he will both obey the law and never request the EU for an extension. A way out of the paradox seems to be forming. EU officials have said that, from their viewpoint, they do not need to receive the request from Johnson in person; any authorized representative of the UK will suffice. It is surmised that if Johnson’s refusal to implement the Act is taken to the Supreme Court, the Court can order a civil servant of sufficient seniority to take the request to the EU for an extension of the deadline.

That this may be the way forward is suggested by a government lawyer’s statement to a court in Scotland on October 4: the prime minister accepts “he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the act from being sent.” (The newspaper headlined this story “Johnson will write to EU requesting article 50 extension, court told.” But the enigmatic “so as not to prevent the letter…” suggests the continuation “brought by whomever.”)

Johnson’s Five Elements

So does Johnson have a viable approach to obtaining a fresh deal with the EU before the middle or even the end of October? At first he said that he could accept all of May’s deal, provided that the EU agreed to remove the “Backstop” from the WA. Obviously, the excision without replacement of 174 pages of the WA was an impossible demand.

Soon after he became PM, Johnson, during quick visits to European leaders, obtained a concession from some, notably German Chancellor Merkel, that if he could formulate a plausible alternative to the Backstop, the EU should consider it. The EU negotiating team reluctantly agreed. Reluctantly and amazingly, because up to then the EU negotiators had insisted relentlessly that not a word of the WA could be changed; only changes to the accompanying FFR could be envisaged. It is astonishing to think that if the EU had shown even a minimal readiness to consider just small changes to the WA ten months ago, when Theresa May was PM, the UK might have left the EU on the original deadline of March 31.

Now Johnson has sent a 40-page document to the EU which defines his proposal for a new Protocol on Ireland/Northern Ireland. An accompanying letter to Jean-Claude Juncker, outgoing President of the European Commission, summarized the proposal as “five elements”:

First and foremost, our proposal is centred on our commitment to find solutions which are compatible with the Belfast (Good Friday) Agreement. This framework is the fundamental basis for governance in Northern Ireland and protecting it is the highest priority for all.

Second, it confirms our commitment to long-standing areas of UK/Ireland collaboration, including those provided for in the Belfast (Good Friday) Agreement, but also others, in some cases predating the European Union: the Common Travel Area, the rights of all those living in Northern Ireland, and North/South cooperation. These were set out in the previous Protocol and should be maintained in the new one.

Third, it provides for the potential creation of an all-island regulatory zone on the island of Ireland, covering all good including agrifood. For as long as it exists, this zone would eliminate all regulatory checks for trade in goods between Northern Ireland and Ireland by ensuring that goods regulations in Northern Ireland are the same as those in the rest of the EU.

Fourth, this regulatory zone must depend on the consent of those affected by it. This is essential to the acceptability of arrangements under which part of the UK accepts the rules of a different political entity. It is fundamental to democracy. We are proposing that the Northern Ireland Executive and Assembly should have the opportunity to endorse those arrangements before they enter into force, that is, during the transition period, and every four years afterwards. If consent is not secured, the arrangements will lapse. The same should apply to the Single Electricity Market, which raises the same principles.

Fifth, and finally, under these arrangements Northern Ireland will be fully part of the UK customs territory, not the EU Customs Union, after the end of the transition period. It has always been a fundamental point for this Government that the UK will leave the EU customs union at the end of the transition period. We must do so whole and entire. Control of trade policy is fundamental to our future vision.

Good News and Not So Good

The good news is that there is a better prospect of obtaining a majority in the Commons for Johnson’s version of the Protocol. The DUP is in favour of it and so are all, or almost all, of the Conservative MPs who voted against Theresa May. Johnson will need the support of the Conservative MPs whom he expelled, though he has not welcomed them back into the party. In the meantime, the 21 have dwindled to 17, since four of them in disgust (along with a fifth Conservative MP) have decided never to return. So whereas, had he not expelled them, he could have had a ready majority, now he will have to hope that a few Labour Party MPs will vote for his proposal, although Labour leader Jeremy Corbyn has denounced it.

The bad news is that while EU negotiators have not rejected Johnson’s proposal out of hand, the most favourable response from any of them was Juncker’s statement that the proposal included “positive advances” while still containing “problematic points.” Most negative was Guy Verhofstadt, head of the European Parliament’s Brexit steering group, who described the proposal as “not a serious attempt at reaching a deal but an effort to shift blame for failure to Brussels.”

An intermediate position was taken by chief EU negotiator Michel Barnier, who said publicly that the proposal should be taken seriously but is reported to have said privately that “The EU would then be trapped with no backstop to preserve the single market after Brexit.” This report is strange. Johnson’s third “element” would apply the EU single market (“regulatory zone”) to the whole island of Ireland. His fourth “element” would make the single market subject to initial approval, and then renewal every four years, by the Northern Ireland Executive and Assembly, but approval is guaranteed because the DUP has already agreed to Johnson’s proposal.

Whether Johnson’s proposal is taken up seriously, however, will depend not on the EU negotiators but on the EU leaders, who are due to hold a summit on October 17. The only one to react so far was Irish PM Leo Varadkar, who caused annoyance in the UK not merely by his cold reception of the proposal but by claiming that the UK public now wants to remain in the EU:

“All the polls since Prime Minister Johnson became prime minister suggest that’s what the British people actually want, but their political system isn’t able to give them that choice.”

Like so many politicians who quote polls selectively and misleadingly in their own favour, Varadkar is half-right and half-wrong. What the polls show is a very complex state of public opinion that cannot be summed up in a slogan, as we noted previously. A majority of interviewees constantly agree that the UK must leave because of the referendum. They may even agree that a no-deal Brexit is better than a Corbyn government, but this is like asking San Franciscans whether a tornado is better than an earthquake. (When asked in a poll, only 22% said that a no-deal Brexit was their top preference.) Yet, when asked how they would have voted if the referendum had been held not in 2016 but today, a long series of polls conducted from 2016 until today shows that on most occasions “Remain” had a lead over “Leave,” albeit by fluctuating percentages and with large numbers of “Don’t know/undecided.”

It must be acknowledged that Johnson’s proposal for a replacement Protocol on Ireland/Northern Ireland has evident merits. We just do not understand why he nevertheless insists that negotiations with the EU on its acceptance must finish by October 31. That might make some sense if EU leaders do not agree, by their summit on October 17, to take his proposal seriously and to seek an agreement based on it. But if EU leaders do agree – even against expectations – that Johnson’s proposal is the way forward, why rush to complete all the legal complexities of that agreement in a few days instead of gratefully accepting an extension of time in order to let a good job be done?

On the other hand, the case against a no-deal Brexit is much stronger than is admitted by its cheerful champions, such as Nigel Farage. (His recent article in the Daily Telegraph is entitled: “Boris Johnson’s Brexit plan is an attempt to put lipstick on a pig. Far better to walk away now.”) The Bank of England has warned against expected long-term damage to the UK economy, to which one must add entirely unforeseen disruptions of unpredictable magnitude. Add to this also sudden recent indications of a recession in the UK economy, where the FTSE 100 lost £87.6 billion (4.7% of its value) in four days to October 3, annulling a recovery that had begun in mid-August. The possible causes of a recession include not merely Brexit uncertainty but also new worldwide factors, such as US President Trump’s decisions to raise tariffs sharply both on Chinese merchandise and on EU merchandise. What if the very grounds on which the champions of no-deal feel so cheerful vanish exactly around October 31?

An Alternative Approach

To understand what Johnson is proposing, we must go back to the original Protocol in the WA of November 2018 and remember what its role was meant to be. Article 1.4 of the Protocol emphasized that “the provisions of this Protocol are intended to apply only temporarily.” Consequently, says Article 2.1: “The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.”

The problem discerned immediately by many MPs was therefore Article 20 of the Protocol, which says that the Protocol “shall cease to apply, in whole or in part,” only when “the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives.” In other words, “temporarily” means for as long as the EU (or the UK) refuses to replace the Protocol with any alternative.

(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. It can take decisions only by consensus.)

Moreover, as long as “temporarily” continues, Article 6 of the Protocol specifies that “a single customs territory between the Union and the United Kingdom shall be established.” This prevents, or at best heavily restricts, the UK from entering into advantageous trade deals with countries outside to EU for as many years as the EU chooses to let “temporarily” continue.

Johnson’s new Protocol is then, firstly, an immediate jump to a virtually permanent replacement for the “temporary” original Protocol (since automatic renewal by the Northern Ireland Executive and Assembly can be taken for granted, as we pointed out). Second, according to Johnson’s fifth element, “Northern Ireland will be fully part of the UK customs territory, not the EU Customs Union, after the end of the transition period.” Article 126 of the body of the WA specifies that the transition period shall “end on 31 December 2020,” so the UK’s complete freedom to enter into trade deals with countries outside the EU can begin right then.

Johnson and his team are to be congratulated on this cutting of the Gordian knot and their defence of the UK’s just and vital interests. But what if the EU leaders either reject Johnson’s approach outright or, more likely, prevaricate in an attempt to whittle away those interests of the UK? We think that there is still one alternative approach to be tried before the UK is reluctantly pushed into no-deal.

This approach is based, first, on the fact that EU leaders have obliged the EU negotiators to abandon their insistence on the impossibility of changing the WA. Second, there have also been rumours that some EU countries, including Germany and France, are considering the addition of a time limit to Article 20: the Protocol would expire automatically after several years. That is, a change that would ensure that “temporarily” cannot mean “forever.”

Several years, however, is too long for the maintenance of a customs union with the EU that cripples the UK’s ability to enter into trade deals with other countries. Rather, if Johnson’s approach does not get off the ground, the UK could still fall back to one last attempt to leave without no-deal. It is to demand a change to that Article 20 of the original Protocol, the so-called “Backstop,” such that instead of enduring for ever unless both sides agree to terminate it, the Protocol will endure for only an initial year, but can be renewed annually if both sides agree to continue it. This would end the justified fear that somehow the UK could remain trapped in the Protocol – and in the EU – indefinitely.

Indeed, we have already formulated a possible wording for such a change (see here and here), using the precise terminology employed elsewhere in the WA:

“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.”

That is, if the negotiations on the Framework for the Future Relationship between the UK and the EU are making progress, then both sides will readily prolong the application of the Protocol because it is in their joint interest. But if the negotiations collapse irreparably, the Protocol will automatically lapse within not more than one further year.

Note that Article 20 occupies a mere page and a half of the Withdrawal Agreement, but is the ultimate insuperable stumbling block to acceptance of the entire document. Changing it in the way described is both a minimal change of the document and the very minimum over which the UK cannot compromise. If the EU refuses even this minimal demand, then it will have made it clear to the UK government, Parliament and the public that no-deal is indeed the UK’s only way of escape.

There is one more piece of advice that Johnson should take, if he hopes to continue on a successful track. It is to learn from his colleague Jacob Rees-Mogg that it is possible to formulate an elegant and compelling argument while never reviling an opponent but rather showing respect for whoever disagrees with oneself. (A composite video of Rees-Mogg in action is here.)

Johnson’s first session of Prime Minister’s Questions in the Commons was marked by the hurling of ludicrous epithets (“chlorinated chicken,” “great big girl’s blouse”) at the Leader of the Opposition, making Corbyn – who was regularly refuted by Theresa May – look better for once. In his speech to the Conservative Party Conference, Johnson derided the very institution of Parliament before the public, potentially an invitation to mob rule. When opposition MP Paula Sherriff begged him to tone down his rhetoric because she and others were getting death threats, his response was the mere cliché “I have never heard such humbug in my life!” Following that, she received five more death threats, 1,000 abusive messages and two police visits (to discuss her security). All this echoes the style of Dominic Cummings and is the very contrary of the style of Rees-Mogg. The exit of the UK from the EU, possibly without a deal, requires a PM whose language seeks a maximum of national unity and the elimination of mutual hostility.

In the meantime, the readiness of EU leaders to consider a time limit to the Protocol has turned into an unofficial counterproposal to Johnson’s proposal. Unfortunately, the counterproposal contains exactly the same fault as the original Protocol. The suggestion is to allow the Northern Ireland Assembly to vote after three or four years on whether to end the application of the Protocol, but to make the vote conditional on the agreement of both Unionists and Republicans in the Assembly. Once again, this is a procedure in which two sides must agree to terminate the Protocol, whereas what is needed is to require agreement by both sides to continue the Protocol, without which the Protocol will automatically lapse.

via Gatestone Institute

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