Boris’s Brexit deal is on the way to being passed – but there are a few areas where we need to keep vigilant

Boris’s Brexit deal is on the way to being passed – but there are a few areas where we need to keep vigilant

The General Election result finally removes all the sophists, timewasters, and referendum-poopers who have been metaphorically gluing themselves to the Brexit bus. It also provides a double mandate for the Conservative Party leadership.

An unambiguous Boris majority quashes any prospects for Labour and Lib Dem guerillistas. Their referendum-repudiating manifesto turned them into oath breakers – something that never ends well either in Norse sagas or on hustings. Meanwhile, selection and reselection also led to every Conservative candidate being tied into the Boris Deal, albeit a process which happened surprisingly late. It might be argued that the Political Declaration is a part-set jelly and leaves some wobble and slosh room over the end terms. Yet combine both factors, and the opportunity for unending Customs Union chicanery is obliterated. 

So the future lies in the revamped Withdrawal Agreement and Political Declaration. On cautious review, my reading is that the Boris Deal is a material advance on the May precursor, for two principle reasons. Firstly, some key parts of the text have been improved, with consequential effect on what Whitehall is being instructed to deliver – in particular, an Association Agreement whose once-ambiguous definition now excludes the Customs Union model of the Channel Islands. More significantly, the prospects of remaining log-jammed in the transitional period are considerably reduced. So, time in Purgatory is cut. 

That is not, however, to say that all the problems have been sandblasted out. Ulster still faces its own customs metamorphosis, albeit now very much locked in time. We can also lament the inability to fix some of the original May Deal botches, from the loss of assets and the remaining liabilities (whose end cost is, astonishingly, to remain classified), to the peculiar European Arrest Warrant clauses.

But the debate has moved on. Those seeking to block both the Withdrawal Agreement and the Political Declaration are fighting a pointless battle. It is as fruitless as revisiting the Oder–Neisse line or looking to re-open the Treaty of Brétigny. But that is not to say, however, that longbeard Brexiteers should not remain unvigilant over elements that do yet remain ambiguous. I would point to five specific aspects.

The first is over the timing. The deadline for getting Britain out of its transitional perdition is set for the end of December 2020. If there is any intent to extend this – beyond the haphazard last minute practice of the EU ‘stopping the clock’ for a brief period – then this has to be triggered well in advance, at the end of June. It is essential that the Conservative Party sticks to its pledge, already twice broken, to deliver on schedule. Any attempt to extend transition into 2021 will send the wrong message to the Commission about deadlines even while there still remains six months still on the clock to negotiate an achievable Free Trade Agreement. 

Any extension will also come at a price. Which takes us to the second issue: fisheries. The Boris Deal talks about bringing back control to the UK as a littoral state, meaning it can assert its powerful default rights under international law. But only if it chooses to. Already there is some talk about the UK bartering away access, and pressure to do so will increase if extension talks are taking place at the very moment that fisheries arrangements are being signed off. 

All this makes the proposed time lock bill, inking the deal into the 2020 calendar, a critical advance this week. However, the UK still needs to play hard ball here to set the enduring terms for this rich and renewable resource, and prep accordingly. The Conservative manifesto pledges to ensure the UK is in full control of its fishing waters. It would be a dishonourable failure, but sadly no break with Westminster tradition, to pretend anything offering more than pre-1973, reciprocated, access delivers on this.

Then there is “Common Defence”. Campaigning by Veterans for Britain led to the May text including one firewall over Defence Procurement, and this has been further bolstered in the Boris text. This is just as well, as we now learn that a new Directorate General will be formed in January to push integration in this area. However, the institutional risk of gravitational pull remains strong. A lack of coherent strategy under May led to parts of Whitehall signing up piecemeal to entities, budgets and projects, that collectively aggregate over time into a threat to NATO and to the UK’s privileged Five Eyes alliance. Happily, important work has been done on a draft treaty that generates a safeguard, and this now needs to be adopted.

Associated with the Security aspects of Defence is Justice and Home Affairs (JHA). It was already proving a troubling pillar structure with the Maastricht Treaty. Eurosceptics again are right to want to see this firewalled. The Home Office has long been too ready to sign up to integration on the grounds of administrative convenience. When the Lisbon Treaty brought in a direct Court of Justice of the European Union role, despite a major backbench Conservative revolt, the Home Office still decided it wanted to opt into a third of JHA areas. Yet compare its stance with their sovereignty-minded counterparts in Denmark, the other EU state that has enjoyed a JHA opt-out/opt-in choice. For every occasion under the old structure that London decided not to sign up to a JHA agreement, Copenhagen avoided seventeen. Denmark has even (in 2017) now made a break with Europol. Will the UK follow the Danish lead, and avoid institutional promiscuity? Not if the Home Office is left to its own devices. 

The last of the possible skid patches is over Human Rights. The ECHR clauses remain problematic as they seek to indiscriminately bind the UK into Strasbourg Court structures. This risks locking in legal activism, with controversial and ambiguous ‘fourth generation’ human rights issues pursued by lobbyists who cannot win the argument in democratic debate. Election pledges over minimum jail time for serious offenders and terrorists are amongst policies at stake, but campaigners have barely scratched the surface over many areas such as reinterpreting Gender Rights. A locked-in ECHR would mean no prospect of protecting rights just through Common Law, as Canada and Australia somehow manage to do. Fortunately, the Foreign Secretary is a known and powerful advocate on this matter.

Notwithstanding these patches of blind ground, I’m optimistic. Experience on EU matters simply teaches us to be alert. It would help if MPs assert their right to be consulted by finding a replacement for the defunct 2011 referendum lock. 

2016 gave Brexit planning permission. The 2019 General Election saw the defeat of the NIMBYs. 2020 will see the foundations being laid. With so much invested, I think it’s quite legitimate for BrexitCentral readers to occasionally bring the builders a brew and keep an eye on how they progress, so we don’t have to call in the surveyors in years to come.