LONDON — It won’t be enough, but it’s not nothing.
Less than two hours after the exchange of letters between Theresa May and EU leaders — Council President Donald Tusk and Commission President Jean-Claude Juncker — the U.K. prime minister’s fiercest critics were already on the attack.
On the one side, Tory Remainers plotting a new campaign for a second referendum. On the other, Tory Brexiteers resigning from government — as junior whip Gareth Johnson did — or re-upping their attacks from the sidelines.
A text from Jacob Rees-Mogg’s European Research Group was quickly sent out to journalists mocking the prime minister for achieving nothing more than a letter. “Say not the struggle nought availeth,” the message read.
The Democratic Unionist Party (DUP), whose MPs vote with the government under a confidence-and-supply arrangement, was even less subtle. The letter exchange was “meaningless,” said Nigel Dodds, the party’s leader in Westminster. “Nothing has changed.”
Attorney General Geoffrey Cox — an outspoken Brexiteer — disagreed. Partly at least. In a letter to May, published Monday afternoon, he said the letters “do not alter the fundamental meaning” of the backstop. But where he differed from Dodds was in the claim of meaninglessness. “This response,” he said, “would have legal force in international law.”
Here are seven takeaways from the exchange of letters:
1. Triple lock for Ulster
May has repeatedly pushed to win DUP backing for her Brexit deal — and repeatedly failed.
On Monday, the DUP were quick to reject her latest attempt to reassure them about the Northern Ireland backstop (the arrangement to protect the Good Friday peace agreement by avoiding the need for a hard border in Ireland). Yet Monday’s exchange of letters reveals some significant developments in how the backstop would work in practice, should it ever come into force.
First, the U.K. will be able to veto any new laws that apply to Northern Ireland in the backstop.
“The Withdrawal Agreement is also clear that any new act that the European Union proposes should be added to the Protocol will require the agreement of the United Kingdom in the Joint Committee [the U.K.-EU committee which will oversee the backstop],” the Tusk-Juncker letter says.
Second, this veto could be exercised by the Northern Ireland Executive (assuming it is back up and running by then), rather than Westminster.
Tusk and Juncker’s letter says nothing stops the U.K. “from facilitating, as part of its delegation, the participation of Northern Ireland Executive representatives in the Joint Committee” which will oversee the backstop.
Finally, Stormont would have a veto over new laws in Westminster, which would mean Britain diverging from Northern Ireland.
May’s letter states: “The U.K. government will not let regulatory divergences develop between Great Britain and Northern Ireland without the consent of the political institutions of Northern Ireland.”
That, though, amounts to a political, rather than legal assurance. How much a new government would be bound by that promise is unclear.
2. No trap
Among many English Brexiteers, the threat of being trapped in a permanent customs union with the EU is a bigger concern than the prospect of regulatory divergence between Northern Ireland and Britain, which is baked into the backstop. They fear it would set a precedent for the future relationship and hence would preclude an independent trade policy for the U.K. in perpetuity.
“Any arrangements which supersede [the backstop] aren’t required to replicate it in any respect,” the letter states.
In other words: The future relationship does not need to be a customs union, like the backstop, so long as the “underlying objectives [of an open border in Ireland] continue to be met.”
What’s more, the Tusk-Juncker letter reaffirms a provision in the Political Declaration that the border could be kept open by technological solutions, should they ever be found. That is the Brexiteers’ favored method for solving the Norther Ireland border issue.
3. ‘Row of the summer’ avoided
Britain was burned in the divorce negotiations by the EU’s complete control of the negotiating schedule. Despite claims from then-Brexit Secretary David Davis that the U.K. would put up a fight on this front, U.K. negotiators quickly accepted the staged timetabling set by Brussels, which meant the Irish border issue had to be solved before substantial discussions on the future relationship could begin.
After Brexit, the U.K. has won agreement that this won’t happen again.
The EU “will embark on preparations for a future partnership with the United Kingdom immediately after signature of the Withdrawal Agreement,” the Tusk-Juncker letter states.
“These talks should cover all strands of the relationship in parallel,” the May letter adds.
May has no legal guarantee of when the backstop will end, should it ever come into force.
What the letter exchange provides is aspirations — and legal obligations on the EU to try to meet them. As Cox’s letter states, these obligations are theoretically enforceable under international law, should the U.K. accuse the EU of failing to meet them.
The Tusk-Juncker letters offers a “firm commitment” to Britain “to work speedily on a subsequent agreement that establishes by 31 December 2020 alternative arrangements [to the backstop].”
If the backstop does come into force it must only be applied “temporarily,” the letter states.
Once the backstop is in place, the EU would be bound by an obligation to use “best endeavours” to negotiate a new agreement to replace the backstop. These negotiations would have to be conducted “expeditiously.”
5. Summits galore
“Following the withdrawal of the United Kingdom, and until a subsequent agreement is concluded, the Commission will … meet at least every six months to take stock of progress and agree the appropriate actions to move forward,” the EU presidents write.
Brexit followers rejoice.
6. Fast-track trade deal
One of the big weaknesses in the U.K.’s position, once it has left the EU, is that it immediately set the clock running on another cliff-edge deadline — the end of the transition period on December 31, 2020 — before which it must agree a future trade deal or risk falling into the backstop.
The Withdrawal Agreement allows the U.K. government to extend the transition period by up to two years, but only once, before the backstop kicks in.
Monday’s exchange of letters aims to provide one extra layer of insurance.
Should the deal have been agreed between Brussels and London, but is being held up by demands from one national government or the other, May writes: “We in the U.K. will do what is necessary to apply the new agreement provisionally pending ratification, rather than default to the backstop, and we expect the Commission to make the appropriate recommendations in relation to the EU too.”
In other words, Britain could provisionally apply the trade deal while the EU tries to iron out any problems it might run into. British officials are presumably concerned about a Wallonia-style veto, as happened with the EU’s Canada trade deal in 2016, and want a mechanism to prevent it delaying a backstop-exit.
The commitment in the Tusk-Juncker letter goes as far as they can to reassure that the EU would play ball. “The Commission is ready to propose provisional application,” they write.
But the European Parliament and the European Council would have to vote to provisionally apply the deal ahead of national ratifications so it is not entirely in their (or their successors’) gift.
No one likes the backstop. Yet.
Yes, for the U.K. it provides good access to EU markets without free movement or budget contributions. And, yes, for the EU it ensures the U.K. remains in its trade bloc, without giving up any sovereignty.
But right now, no one likes it — and it is imperative on all sides to say as much.
“The European Union does not wish to see the backstop enter into force,” the Tusk-Juncker letter states.
“Were it to do so, it would represent a suboptimal trading arrangement for both sides,” it adds.
This is pure politics — and really doesn’t amount to much.
Jakob Hanke contributed reporting.