With the prospects of a "no-deal" Brexit looming closer by the day, the EU, UK and member states, including Ireland, are frenetically stepping up their no-deal "preparedness" planning.
But what exactly does a no-deal Brexit mean? That the UK reverts immediately to third-country status is clear. But what about the undertakings made by both sides in the withdrawal agreement – where do they stand? And notably those in the Northern Ireland protocol?
The answer appears simple – according to the oft-repeated negotiating principle that nothing is agreed until everything is agreed, the bulk of the withdrawal agreement provisions fall by the wayside. So mutual citizenship rights for those living away from home in the EU or UK will need to be legislated for, as will aircraft landing rights, driving licence recognition, and countless other details of the divorce agreement.
The effects of crashing out without some of these undertakings in place will be mitigated by both sides unilaterally deciding to accept partial solutions – aircraft will be allowed some landing rights and citizens will be spared from immediate expulsion, though a far cry from the rights they could expect if the withdrawal agreement was agreed.
Check goods
Most important from an Irish perspective are the protocol provisions on a border on the island and between Ireland and the rest of the UK. And whether Dublin likes it or not, or pretends it can simply ignore its obligations on third-country access to the EU’s single market, the reality is that it will have obligations to check goods if Brexit happens.
The UK has made clear that it remains unconditionally committed to the Common Travel Area
The controversy in the last two days over comments by the EU Commission’s spokesman to that effect, reflect an attempt by Dublin not to deny its obligations, but rather to postpone the discussion until it is confronted with a more than theoretical possibility of a no-deal Brexit with no backstop cover. And when it will be able most plausibly to argue that it is not responsible for the hard border, but the UK is.
But in other respects the Northern Ireland protocol to the withdrawal agreement is very different to most of the rest of the agreement. It is replete with commitments to policies and programmes which arise from pre-existing treaty and political commitments, most notably commitments arising from the Belfast Agreement and to the pre-existing Common Travel Area.
These commitments stand irrespective of no-deal and the nothing is agreed until everything is agreed principle – so, for example the British government has been reaffirming in recent days its promise to keep funding the Northern Ireland peace programmes, notably with a pledge on January 11th of £300 million to PEACE Plus, and to work with the commission to ensure that the EU’s next budget contains the matching funds.
That’s deal or no-deal Brexit.
Other legally binding Belfast Agreement commitments that predate the withdrawal agreement but are repeated in it include a willingness to continue support for cross-Border programmes and the establishment and maintenance of human rights and equality mechanisms.
The UK has made clear that it remains unconditionally committed to the Common Travel Area, and Dublin, to preserving the right of Northerners to claim Irish and hence EU citizenship.
So, you might ask, apart from the backstop, what’s the point of the withdrawal agreement protocol, what is its value added?
Belfast Agreement undertakings
One Northern political scientist observes that for nationalists, long suspicious that the UK will only partially fulfil its Belfast Agreement undertakings, notably in areas like human rights and equality, or concerned that it might waver in its budget commitments, the explicit spelling out of the commitments in the withdrawal agreement is very useful.
A mapping exercise carried out in parallel to the talks actually lists some 139 cross-Border programmes or projects which both sides accept arise from the Belfast Agreement commitments.
And, he argues, that, unlike the Belfast Agreement, such obligations would be legally judiciable if enshrined through the Brexit agreement.
We recognise that the UK has obligations to the EU, and the EU obligations to the UK, that will survive the UK's withdrawal – and that these need to be resolved
However, while the UK has repeatedly reiterated its desire not to see a hard border, how to achieve that in a no-deal context is unclear. A British spokesman suggests that in that eventuality there would have to be talks with Dublin which in turn would have to talk to the EU. It might legitimately be asked, with D-Day looming, why no such discussions are currently under way.
Another victim of nothing being agreed until everything is agreed and a no-deal consequence of considerable concern here is the £39 billion UK Brexit bill obligation which will also bite the dust.
London insists it is part of the withdrawal agreement settlement, but also, nota bene, arises from a pre-existing legal commitment, much like the Belfast Agreement commitments in the protocol.
“We’ve always said that in the event we leave the EU without a deal,” a UK spokesman said yesterday, “the financial settlement as set out in the withdrawal agreement would no longer apply.
“We recognise that the UK has obligations to the EU, and the EU obligations to the UK, that will survive the UK’s withdrawal – and that these need to be resolved. But in a no-deal scenario we would need to determine how to do so.”
Not exactly the clear-cut repudiation of the debt that Brexiteers are demanding.
