With barely two weeks to go to a crunch European summit, the UK Prime Minister Boris Johnson has made his pitch for a revised Irish ‘backstop’ and a new Political Declaration on the future relationship between the EU and the UK. Not surprisingly given that what has been released deals solely with the backstop, the question that journalists have focused upon is whether the idea of an all-Ireland regulatory zone and customs controls away from the North-South border can get a green light from the EU and from the MPs who will need to back the deal.
Under the pressure of time, political and media attention cannot help but be consumed with the here and now. Yet what is fundamentally at stake in all of this is not just what it takes to “Get Brexit Done” but where the UK and the EU are heading in terms of their future relationship. As Jill Rutter has tweeted, what is really significant about Boris Johnson’s letter to departing European Commission President Jean-Claude Juncker is that the softer form of Brexit envisaged by Theresa May – and rejected not just by her own MPs but also Opposition parties – is not what the Johnson Government wants. The shape of Brexit has altered and altered radically from a year ago.
On this blog last year, I suggested that what might be important about the planned backstop was that it was less a safety net and more of a trampoline towards a particular kind of future EU-UK relationship. Indeed, the terms of the Political Declaration implied that a future relationship would build upon a backstop that would keep the whole of the UK and not just Northern Ireland subject to EU rules including “level playing field” regulatory compliance. Had the Withdrawal Agreement and Political Declaration been approved, the shape of Brexit could have been relatively soft (although a change of government in the UK could, of course, have charted an alternative course). Albeit different from the approach of the European Economic Area Agreement – aka the “Norway model” – a novel and potentially far-reaching type of “association agreement” between the EU and the UK seemed to be on the cards.
The Prime Minister’s new proposal is not just for a revised backstop but for a very different type of future relationship. This had already become clear when the newly appointed Prime Minister Johnson wrote to the European Council President on 19 August. As well as making the now-familiar claim that the backstop was “undemocratic’, the Prime Minister went on that the backstop was “inconsistent with the UK’s desired final destination for a sustainable future relationship with the EU”. In express terms, the Prime Minister stated that UK regulations could in the future diverge from those of the EU; “[T]hat is the point of our exit and our ability to enable this is central to our future democracy”, he said.
In the more recent letter to Jean-Claude Juncker, the abandonment of any type of association agreement in favour of a free trade agreement is made clear and the reasoning that lies behind it is so “that the UK takes control of its own regulatory affairs and trade policy”.
What emerges is a rather interesting picture. The UK will leave the Customs Union and the Single Market and base its future relationship on a free trade agreement. This is a hard Brexit with no pre-commitment to EU regulatory standards underpinned by an agreement with the EU. Which is not to say that other forces will not push towards regulatory convergence: voluntary alignment or the pressure from market actors will have a role to play. But the free movement discipline of pre-committed regulatory alignment will be replaced by a looser free trade discipline that will open a space for regulatory divergence. The exception to this is Northern Ireland. Rather than the backstop acting as a trampoline or trap, it will be an anomaly. The Prime Minister intends that this anomaly – something which the Democratic Unionist Party had apparently sets its face against hence the May version of the backstop – will find its justification in the principle of consent and the willingness of the people of Northern Ireland to accept continuing regulatory alignment in trade in goods. Which begs the question of how consent in the rest of the UK is to be secured for potential regulatory divergence in the future.
It remains to be seen whether the Prime Minister can persuade the leaders of the EU27 to back his plan. But even if they do, can the same MPs who didn’t support Theresa May’s softer Brexit really get behind the harder Brexit that the Prime Minister is clearly pursuing?
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