Wednesday, 13 March 2019
Recent Developments on Brexit: Statements
These statements were sought - I believe our party was the only one to seek them - on foot of the publication of three additional Brexit documents negotiated by the UK and the EU last Monday night: a joint statement, an instrument relating to the agreement and a unilateral declaration from the United Kingdom. With 16 days to go, we had all hoped for a breakthrough in the negotiations and a move forward by the UK Parliament to ratify the withdrawal agreement. Unfortunately, despite the additional documents representing movement in favour of the UK, it was not sufficient to get MPs to support the deal. The unilateral declaration which was issued by the UK states, "In that light, the United Kingdom notes, subject to Article 1(4) of the Protocol on Ireland/Northern Ireland, that the objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom." It goes on to state, "If under these circumstances it proves not to be possible to negotiate a subsequent agreement as envisaged in Article 2 of the Protocol, the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol, in accordance with Part Six, Title III of the Withdrawal Agreement."
Interestingly, it appears that this is an attempt by the UK to unilaterally exit a bilateral agreement, which is clearly unacceptable to Ireland. This is precisely the issue that Geoffrey Cox, the UK's Attorney General, dealt with in paragraph 19 of his legal advice. What happens if and when best endeavours are used, both parties acting in good faith, yet both parties cannot agree to come to an agreement? In his advice Geoffrey Cox spoke to what he called the intractable differences that may arise, the exact situation that the UK sought to address in its unilateral declaration. The UK Government sought to interpret Article 1(4) of the withdrawal agreement, "that the objective of the withdrawal agreement is not to establish a permanent relationship between the Union and the United Kingdom", to mean that in the event agreement on the future trading arrangement could not be reached through no fault of either party, this would mean that the withdrawal agreement had become permanent. This contravenes Article 1(4) and could therefore lead to the disapplication of obligations under the protocol, namely, the backstop.
Geoffrey Cox took a different view on this issue and directly contradicts this interpretation by stating in paragraph 19 of his advice, "However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation doesarise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol's arrangements, save by agreement." However, there were some concessions and compromises on the part of the EU contained in the interpretive document. To anyone suggesting otherwise I would ask what was the point of compiling and publishing these documents, and what was the purpose of the dramatic emergency Cabinet meeting and Theresa May's last-minute flight to Strasbourg? Of course there was movement. Ultimately, however, it was not enough to get the support of MPs in sufficient numbers to get the deal over the line.
Geoffrey Cox's advice ran to three pages. While the focus was on paragraph 19, I would direct people to read his advice in full. Looking initially to paragraph 4, he states, "The Joint Instrument [...] provides, in addition, useful clarifications, amplifications of existing obligations and some new obligations, which in certain significant respects would facilitate the effective enforcement of the UK's rights in the event of a breach of the good faith and best endeavours obligations by the EU." He goes on to state in paragraph 7, "In my view, these provisions of the Joint Instrument extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments, which amplify its existing terms and make time of the essence in replacing the backstop." He goes on to say in paragraph 8, "It would be unconscionable and a potential breach of the duties of good faith and best endeavours were the EU to decline to adopt anypracticable alternative arrangements of the type described if they helped to avoid a hard border on the island of Ireland and did not require it to make unreasonable adjustments of its interests."
Much of this is subjective. What exactly are "best endeavours"? What might represent "delay"? What might constitute acting "not in good faith"? Regardless of the subjective nature of the interpretive document, it is legally binding and would strengthen the UK's hand at the arbitration table, if ever the arbitration process were to be employed. This was the change, the compromise and the concession. Ultimately, however, the last paragraph of that legal advice remains the issue. I refer to the intractable differences that might present. Is there anything that can be done by the EU at this stage to address this concern and find a way to move forward?
Politics is about the possible and finding solutions to difficult problems. We are facing a serious threat to our country, our economy and our valued peace. We are already at the cliff edge and staring over at a deep drop below. Ahead of the vote yesterday, the DUP was looking to the advice of the UK Attorney General for divine inspiration. Similar to a domino effect, the European Research Group looked to the DUP. Not desiring to be more unionist than the DUP, it may have actually followed that party’s lead.
It was manifestly disappointing to watch the DUP vote against a deal that it was in Northern Ireland’s interests to support. Perhaps that party welcomed comments today from Michael Gove regarding a possible return to direct rule in Northern Ireland in the event of a no-deal Brexit. That is despite such a move not being what the majority of people in Northern Ireland want. Sinn Féin has again abdicated its responsibilities and spent most of its time this evening talking about Fianna Fáil rather than Brexit and the situation in Northern Ireland.
What happens next is unclear. We know MPs in Westminster tonight voted to reject leaving the EU without a deal. A no-deal Brexit has been taken off of the table but only by a majority of four. The House of Commons then went on to reject an amendment that would have extended the period in which Brexit could take place until 22 May and give no backstop commitment. That is also welcome. We expect that the next step will be for the House of Commons to vote to extend Article 50. The question though is for how long. Our Government must do what is needed to secure that extension, if requested, regardless of whether there is a plan on how to move forward. If the alternative is a crash-out Brexit, then we must support anything to avoid that happening. A short extension poses difficulties in that it prolongs the uncertainty for businesses and farmers. That is not without consequences.
It is, however, far better than the Armageddon of a no-deal Brexit. A longer extension could yield many different developments and not all may be positive for Ireland. We could see a change of Prime Minister in the UK and then an even more hardline approach in respect of a harder Brexit. A no-deal Brexit would be catastrophic for Ireland. There is no point in saying otherwise. The EU's proposals today on trade and tariffs were a shot across the bows. However unrealistic and unworkable they were, it gave our businesses, and in particular our farmers, an insight into what may lie ahead in the event of a no-deal Brexit. There was, naturally, widespread concern across the business and farming communities. They are looking to our Government for leadership and reassurances. The time for generalities is over. We need details on the level of preparedness in the country and exact details of the financial aid package that will be available to businesses and farmers should the worst happen at the end of March or beyond.
We cannot wait until after Brexit to see what available financial support might be there. We will then find ourselves scrambling from day to day to address the catastrophic impact that would have on our country. The deputy director general of finance with the European Commission, Mr. Martinez-Mongay, appeared before the Committee on Budgetary Oversight today to answer questions. I asked him what financial aid package would the Commission provide to Ireland in the event of a no-deal Brexit. The response I got was that it was premature to have those conversations. It is not premature and it is, indeed, well beyond time to be having those conversations. It is incumbent on the Government to be honest with the Oireachtas and our citizens as to what level of conversations have happened and what have been the results of those conversations. I took some positive aspects from the comments of Mr. Martinez-Mongay. He referred to the possibility of some flexibility on state aid rules, if needed. We would again welcome details being provided in this House and to our citizens on what that might look like.
If the EU and the UK fail to deliver a deal for citizens, then politics will have failed. This is the defining political issue of our age. It will affect many things, such as how we interact with our closest neighbour and our nearest market. It could have a severe negative impact on peace and stability on this island. It is incumbent upon all of us to find a way forward so that we can get to a post-Brexit world where trust is restored between the UK and the EU. I refer to a situation where any negative sentiment that may have built up between our two nations can dissipate and be put to bed. I look forward to a time when we are not debating Brexit daily and we move back to discussing the issues of health, housing and education and all the other issues that really matter to our citizens. Until Brexit is resolved, however, it will be the key issue of the day. As always, the support of the Fianna Fáil Party will be there to ensure that whatever needs to be done to protect our country will be done.