Tuesday, November 19, 2019
Home Brexit Watch The shameful truth about May’s backstop ‘deal’

The shameful truth about May’s backstop ‘deal’

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YET again, Theresa May flew to the EU unannounced late in the evening, reached a personal agreement with the EU in the wee hours of the morning, and lied about what it means.

In a press conference this morning, looking tired and sounding weak, while Jean-Claude Juncker (President of the European Commission) sat alongside checking every word, she spoke suggestively but misleadingly.

She agreed that the EU was ‘absolutely right’ to demand no ‘hard border in Northern Ireland’. In fact, there never has been a hard border, and nobody ever planned one – the EU and Ireland invented the issue for leverage, then persuaded May to keep Northern Ireland in the EU even if the rest of the UK leaves without a deal (this is the so-called ‘backstop’).

She said that the backstop ‘cannot become a permanent arrangement’ and that she and the EU had agreed ‘legally binding changes . . . to set that right’. She said that this morning’s new agreement ‘will guarantee that the EU cannot act with intent to apply the backstop indefinitely’.

In fact, they have not agreed any legally binding term-limit on the backstop, and they have not agreed to allow Britain to withdraw unilaterally.

The new agreement is effectively an addendum to her proposed Withdrawal Agreement of November 2018.

The first commitments within it are non-binding, airy, niceties of goodwill:

1. ‘the parties wish to establish a future partnership that is as close and strong as possible’;

2. ‘the parties do not wish the backstop . . . to become applicable’ and ‘are therefore determined to replace the backstop solution for Northern Ireland by a subsequent agreement’;

3. The parties agree ‘to regular reviews’ of the backstop protocol.

The binding stuff begins by confirming the most disadvantageous articles in her proposed Withdrawal Agreement of November 2018: Articles 167 to 181, which give the EU dominance in the interpretation of the agreement and in the settlement of disputes.

May said this morning that she has won for Britain the capability to challenge any attempt by the EU to keep the backstop permanently, but she immediately reframed that capability as an option to challenge through the existing dispute mechanism (Articles 167 to 181). Yet she hasn’t changed that mechanism, which gives the EU dominant interpretation and enforcement of all the agreements.

Article 168 eschews any rights to resolution except through the Withdrawal Agreement’s own ‘Joint Committee’. This is to be co-chaired by the EU and Britain, but the other members are not specified in quantity or quality, so can be assumed to over-represent the EU’s and May’s pro-EU lackeys. If this Joint Committee couldn’t agree, then it could defer to an ‘arbitration panel’ (Article 171). This is what May spun dishonestly in November 2018 as an ‘independent panel’: in fact, it will be selected by the ‘Joint Committee’, from an equal number of persons proposed by Britain and the EU respectively, winnowed down to five. If the ‘arbitration panel’ fails to agree whatever the EU expects it to agree, the European Court of Justice (ECJ) will decide (Article 174).

In other words, this morning May just reconfirmed the ECJ’s jurisdiction over both the prior proposal and this addendum.

The subsequent articles of the proposed Withdrawal Agreement (Articles 175 to 181) specify that anything these arbiters decide must be treated as international law. These arbiters can decide for themselves how to bind the parties, within what period of notice, and with what financial penalty. Non-compliance too is judged solely by these arbiters. Article 181 specifies that these arbiters will be immune from any other law.

In other words, Articles 167 to 181 of the proposed Withdrawal Agreement of November 2018 give the EU’s and May’s appointees the supreme authority – above any other law or agreement – to interpret the UK-EU relationship as they see fit. They have the advantage of being able to reach for 600 pages of articles that are either non-binding or are so under-specified as to be endlessly re-interpretable.

This morning’s addendum confirms that Articles 167 to 181 apply to ‘any dispute concerning compliance with Article 5 of the Withdrawal Agreement’. Article 5 commits to compliance with everything in the agreement and also the vaguer ‘objectives of this agreement’ (plenty of scope for EU re-interpretation there). Cleverly, Article 5 recuses itself ‘without prejudice to the application of [European] Union law’ – but not UK law.

This morning’s addendum confirms that those same dispute/compliance obligations apply to the backstop protocol too, specifically to any failure to conclude a superior agreement by the end of 2020, and specifically to any dispute between the EU and the UK about when to end the protocol. In other words, the ECJ is the ultimate arbiter of when Britain leaves the backstop protocol.

The next paragraph confirms that this morning’s addendum ‘has legal force and a binding character’.

The subsequent page contains several reaffirmations of prior commitments in unenforceable language, e.g., ‘efforts’ to reach a permanent settlement should be ‘redoubled should the negotiations not be concluded within 1 year from the date of the United Kingdom’s withdrawal’.

Note that such statements DO NOT put a time limit on the backstop or allow for unilateral withdrawal. Repeatedly, different paragraphs talk about best endeavours to reach an agreement to replace the backstop protocol, but no item schedules any expiry of the backstop, or specifies the UK’s right to end the backstop unilaterally.

Surprisingly, the last paragraphs re-confirm that all disputes will be subject to Articles 167 to 181 of the proposed Withdrawal Agreement of November 2018. These repetitions are all to the EU’s advantage, but the repetitions suggest to me that May’s small cabal of under-qualified but favoured civil servants have yet again been rushed into agreeing something they didn’t produce and don’t fully understand.

To summarise: May just reached another agreement with the EU that reaffirms the EU’s dominant interpretation of the proposed Withdrawal Agreement, which confirms the EU’s veto of when Northern Ireland can leave the EU, and confirms the EU’s dominance over interpretation and enforcement.

Yet May dishonestly claimed to have won Britain’s capability to withdraw unilaterally.

May has reaffirmed her uselessness as a negotiator and dishonesty as a public servant.

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Bruce Newsome
Bruce Newsome is a lecturer in international relations at the University of California Berkeley and an expert on global security risks, international conflict and counterterrorism.

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