Tony Connelly’s detailed report from the EU side identifies what he regards as a shift of ground by the UK Attorney General Geoffrey Cox to try to satisfy the DUP which is skunnering the chance of a breakthrough.
The EU has been shifting towards providing legally binding assurances, through a Joint Interpretative Statement that sets out the obligations to conclude a free trade deal and look at alternatives to the backstop in quick time.
But in the Commons earlier this week, Cox’s cod piece moment overshadowed his hints of sympathy with the DUP and Trimble line that the backstop ignores the GFA consent principle for the North. (Somebody pointed out later that cod pieces became bigger and grander according to the size of the contents beneath – an apt description for Cox’s then?). This moved him to argue to Barnier for equal EU and UK risk in case of future breakdown.
Connelly picks this up.
… the backstop was potentially in breach of the European Convention on Human Rights (ECHR) because under the backstop, the citizens of Northern Ireland would be subject to EU single market rules yet not represented in the making of those rules.
It is understood Cox glancingly referred to Article 3 of the protocol to the ECHR which commits signatories to ensuring “the free expression of the opinion of the people in the choice of the legislature”.
To EU officials this took the backstop into entirely different terrain.
“This is about attacking the legality of the backstop, the same backstop which has been negotiated by Her Majesty’s best team of lawyers,” says one official.
“That didn’t really help the dynamics.”
Connelly goes on…
Following the meeting ( with Cox) Michel Barnier published a series of tweets.
The EU was now offering a “legally binding interpretation of the Brexit Withdrawal Agreement.
Essentially, he was spelling out what was already in the agreement, with a fresh offer that the “best endeavours” obligation to find ways of replacing the backstop could be boosted within a Joint Interpretative Statement – a legally binding mechanism – that was “actionable” before the arbitration panel.
What the EU was offering was a more legally robust version of the Tusk-Juncker letters of January, spelling out that the backstop was intended to be temporary and that both sides would seek to use all means to replace it as soon as possible….
In another tweet, Mr Barnier said: “[The] EU commits to give UK the option to exit the Single Customs Territory unilaterally, while the other elements of the backstop must be maintained to avoid a hard border. UK will not be forced into customs union against its will.”
Despite the UK’s demand for a unilateral exit clause to the backstop – the Single Customs Territory, in treaty-speak – this was not it.
The Protocol already gives the UK the option to exit unilaterally, but only so long as Northern Ireland remains.
The key phrase is: “The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement”.
So the price the UK would have to pay for walking away, would be reverting to the original Northern Ireland-specific backstop Theresa May rejected one year ago, something quickly recognised by the DUP’s Nigel Dodds.
“Nothing new in what Barnier is offering,” he said on Twitter.
There is also a wider and fundamental clash between the English common law and commercial lawyer invoking a concept of “the reasonable person” and the continental culture of concentrating on legal text, that has bedevilled the negotiations from 2016.
If you look at the UK comments today, you’l see that the NI specific backstop is precisely the problem for them. Indeed they are attacking Barnier for insisting on it.
See the Guardian report – and they’re in the anti Brexit camp.
As often happens in difficult negotiations, the parties become fixated on a technical details they fancy – often wrongly – will clear a roadblock. This is called synecdoche, substituting a part for whole which is too big to contemplate . It has its psychological attractions as it diverts from the greater intractability.
This partly explains what’s happening in the Commons as MPs continue to avoid making a clear choice . Despite the concentration on trading rules at the moment, Brexit is more about ” taking back control” and immigration ( this is but one of the problems with Norway plus, incidentally).
And this is why the NI specific backstop offends so much and offends more than the DUP. ” It turns NI into an EU protectorate, perhaps forever” is the extreme statement of this viewpoint. Behind the wrangling are primordial fears for the ” precious Union” if a ” border in the Irish Sea” is conceded; whereas on the contrary, many would agree that it is hard Brexit which threatens the Union in the medium term more than anything.
The EU may indeed insist on longer than a couple of months delay on the grounds that a short one will solve nothing. This gets us into an immediate legal wangle over whether the UK would be required to hold elections to the European parliament in May if the delay was longer than 2 months, beyond the first sitting of the new parliament in July. This is another case of synecdoche, when the real problem is about fears that a longer delay may mean that the whole Brexit project would be up for grabs. Something has to give before March 29. Amazingly nobody know what.
We may know more next week or else may have to wait until around the 21 March EU summit. Mrs May may then make a final appeal to the Heads of government to agree to a legal codicil or arbitration mechanism or whatever the hell fig leaf that – might? – hold her party together and finally clinch a deal.
If you want a scathing critique of the government’s negotiating tactics, look no further than this tweet from former chancellor George Osborne.
Government has spent today in Grimsby blaming EU for failure of their own MPs to back them; on radio saying history will hold EU responsible for political crisis in UK; on Twitter attacking the guy they need a concession from. Certainly an interesting way to conduct a negotiation.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London