Friday, October 18, 2019

An overview of the “wins” for both EU and UK in getting to the “Boris Brexit Deal”

Published in "The Conservative" Magazine (page 4) and

EU leaders have been endlessly repeating that the binding part of the Brexit deal as it was negotiated by Theresa May in November 2018 was not up for negotiation. Yet in the end, that's what happened. Given the challenges of "no deal", the incomplete preparations for it on both sides, and how it could easily escalate into a blame game, this was a welcome development and a UK “win” in itself.

Hereunder is an overview of the "wins" both sides have obtained.

UK win: An independent trade policy

The key problem with Theresa May's deal was that it wasn't guaranteed that the UK would be able to conduct an independent trade policy, as the “backstop” arrangements basically meant that the UK would be outsourcing its trade policy to Brussels until alternative arrangements to prevent a hard Irish border were agreed. The "Boris deal" changes that, as the UK will recover trade powers in any case when the transition period ends, at the end of 2022 at the latest. During the transition, the UK will keep full market access in return for aligning with all EU rules and outsourcing its trade policy to the EU. If it wants to, the UK can of course voluntarily extend the arrangements foreseen in the transition for a bit longer.

 - EU win: Northern Ireland takes over EU regulations

In order to avoid regulatory checks between Ireland and Northern Ireland, Northern Ireland will be taking over EU rules, thereby de facto remaining in the single market for goods permanently. Of course, the territory thereby also keeps full access to the EU’s single market, which is a win of some sort for the UK.
-          UK win: Northern Ireland will remain in the UK’s customs zone
British negotiators managed to persuade the EU to agree that Northern Ireland will remain a part of the UK’s customs territory permanently. This is no theoretical matter, as some have claimed, because residents of Northern Ireland will enjoy the benefits of trade deals negotiated by the UK, through a system of rebates.
-          EU win: intra-UK checks
Goods entering Northern Ireland from Great Britain or outside the EU will be subject to EU-level tariffs. There will also be regulatory checks, on top the already existing checks of live animals between GB and NI.
-          UK win: the intra-UK Sea checks will be limited
The checks between Northern Ireland and Great Britain, in the Irish Sea, will be limited and will only hit companies, as personal goods and goods that “will not be subject to commercial processing in Northern Ireland” will be exempt.

Through the “Joint Committee”, the EU will have a say in this, which is a slight UK concession, but then this is a considerable EU climbdown. French centrist MP Jean-Christophe Lagarde criticized that the deal outsources the protection of the EU’s external border to the UK. EU negotiator Michel Barnier also admitted that "we cannot totally eliminate the risks", suggesting that the EU is tolerating some leaks in its – otherwise already quite leaky – external border.

The UK should appreciate the EU for its flexibility here. Perhaps any further EU concession here – to tolerate even less checks- can ultimately bring the DUP on board, as there would then be less reason for the party to request safeguards on Northern Irish “consent”.
-          UK win: a unilateral exit mechanism for Northern Ireland
The Northern Irish Assembly will have the right to no longer align with the EU as closely, if there is a simple majority for this in the assembly. It will only be able to do so four years after the end of the transition. If it votes to dissociate, a two years “cooling off” period follows, meaning that depending on when the transition ends, Northern Ireland can only abandon the close alignment with the EU in 2027 or 2029.

The DUP preferred a possibility to decide whether to opt into this arrangement right after Brexit, with a veto for both communities on this, claiming this aligns with the principle foreseen in the Good Friday Agreement that both communities need to be express “consent” with any big changes.

Then making sure that Northern Ireland follows the UK when it leaves the EU should be seen as a concession to unionists, while at the same time taking close alignment with the EU as a starting point should satisfy nationalists. In any case, agreeing to a unilateral exit mechanism linked to a time limit has for a long time been an absolute taboo for Ireland.
-          Slight EU win: EU law on VAT will apply in Northern Ireland
After Brexit, the UK will be able to scrap the burdensome VAT system and replace it with a US-style sales tax, but that won’t be possible in Northern Ireland. There, the UK will be responsible for collecting it. To soften the concession, the EU has agreed that the UK will be able to apply Ireland's reduced rates and exemptions for VAT in Northern Ireland, so the “tampon tax” can remain abolished there.
-          UK win: the binding “level playing field” arrangement has been replaced by a non-binding one
Boris Johnson conceded to a “level playing field” arrangement, which comes down to a promise to not overly diverge from EU environmental and social rules, but this won’t be enforceable, as it's part of the non-binding political declaration. This is unlike Theresa May’s level playing field arrangement, which was part of the “backstop”, even if it also lacked real teeth, given that the EU wasn’t able to open arbitration proceedings against the UK if it thought the UK had disrespected its obligations.

Also scaled back, as the “backstop” was scrapped, is the role for the European Court of Justice, even if it keeps some role: when there is a question of EU law at stake in case of disputes related to the withdrawal agreement, the “arbitration panel” needs to ask it to rule, but interestingly, the arbitration panel itself will be able to decide when EU law is at stake, which somewhat dilutes the ECJ’s powers.


This renegotiation has resolved a lot of the legitimate concerns the UK had with Theresa May’s deal. Concessions had to be made by both sides, and surely this still is an imperfect deal, but given the complex nature of Northern Irish politics, it’s very hard to get it right. The EU and Ireland deserve credit for ultimately engaging, even if they had been dragging their feet for far too long. 

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