As blogger David Allen Green has pointed out, whoever produces the first draft of a legal document has the advantage. While the EU has been criticised for its backstop-Brexit draft, the UK has conspicuously failed to produce any draft at all, and shows no signs of doing so. The final transition agreement is thus unlikely to differ from the EU’s draft in anything other than some finer details and cosmetic language.
This was of course predicable and widely predicted back in December.
90% of the backstop draft is legalese for “the UK is out on its ear after the transition period ends, but anything that is in progress at that moment remains under EU jurisdiction until it is finished.” The other 10% reads (more or less) “the trade border will be in the Irish Sea unless the UK comes up with something that we like better in the meantime.”
The UK is not toast by any means. This agreement is still just a slightly altered default position, the current default being a catastrophic, no-transition crashout at midnight on March 31st 2019. All of the language is designed so that if some better agreement were to be reached within the transition period, this agreement could be washed away.
But the EU’s draft is important in that it narrows the menu of possible outcomes to three broad categories. Like an office christmas party, the choice will be surf, turf or vegetarian, with the only variation available being the style of potatoes.
Firstly, the red-meat turf option. Until a withdrawal agreement is signed, a no-deal hard Brexit is always a possibility. At best, this would be WTO rules on day one. Or the UK might follow through on its threat to ignore WTO rules requiring border customs controls, and thereby start a trade war with just about everyone that matters. Or it could fail to join the WTO, and throw itself on the mercy of the open sea. Given that the UK would have just violated a solemn agreement with the largest trade bloc in the world, mercy would not be forthcoming.
None of the above are appetising, but all are quite possible. And all would inevitably mean a hard border in the terrain, whether on the UK’s orders, the EU’s, or the WTO’s.
So perhaps surf would be more digestible. The backstop agreement, or some derivative of it, could be agreed now, but the long-term relationship talks could fail. This would mean that the backstop deal would become reality on 31st December 2020 and the border would remain in the sea. Unionists would be horrified, but some of the little-Englander Brexiteers might see it as a price worth paying.
Or thirdly, vegetarianism. A close, permanent trading accord could be agreed in the 21-month transition period. Perhaps nothing in the backstop deal might have to be implemented. But any alteration would certainly come at a cost to the UK’s red lines, leaving carnivorous Brexiteers dissatisfied. And based on the current government’s track record, it would likely be a humiliation.
At the moment the vegetarian option looks most likely, despite the political chaos it would cause in Westminster. This is because of two plain facts. Firstly, the UK doesn’t have an alternative on the table. And secondly, once the backstop deal is signed, it’s either a surf border or I Can’t Believe It’s Not Brexit. And a surf border is anathema to both Remainers and Brexiteer unionists.
With luck, unionists and Remainers will come to understand that they are on the same side. But there could be another two years of political histrionics before that decision becomes inevitable.
The only plausible get-out-of-jail-free card for the carnivores would be a swift and decisive border poll. But that decision is entirely out of their hands.