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First Reflections of 2019



11 February 2019

Though the term backstop is an unappealing one to use even colloquially for part of a treaty or a political declaration a mechanism to bring it to an end could be a bilateral side treaty between the Republic of Ireland and the United Kingdom that specified that it would end when the parliaments of both nations had voted for it to do so.

This would be a treaty between two sovereign nations. Whatever else the EU is it is not a sovereign nation.

It is possible that the Republic of Ireland would detain the United Kingdom in an arrangement longer than it might have desired but not for ever. Both nations have a strong political interest in maintaining open border arrangements.

The treaty between the EU and the United Kingdom would then need to be modified in advance to remove the perception of veto power lying with the EU.

To terminate the side treaty the United Kingdom would have to seek the approval of one nation not 27.

8 March 2019

It is true that this is a matter best dealt with by a political solution not a legal one but it is not an outlandish concept that the United Kingdom serve notice of a wish to end membership of a customs union as part of a referral to arbitration.

In arbitration it is for the panel to rule whether it has jurisdiction to decide the issue based on the terms of the arbitration agreement. This does not subvert the EU's legal order. If it rules it does not have jurisdiction, so be it. The political problem will have been very clearly flagged up for urgent solution.

What we have read in the press may, of course, be an oversimplification of the issues. It needs looking at again, though.

13 March 2019

It is highly unclear what the outcome and import of the two votes in the House of Commons tonight and tomorrow will be. Once they have taken place it will be clearer.

To date the EU has got the better of the negotiations but it also has made errors.

In the event of the votes resulting in 'no deal' being off the table, for the time being probably, and the U.K. requests an extension, the period we would favour is 21 months.

As that period draws to an end the British government could put an agreement to the people in a general election though it would be under no obligation to do so. For neither the Conservatives nor Labour is a second referendum anywhere near a first choice outcome.

This time everything should go into the pot for negotiation and everything pressed on with in parallel as fast as possible so the end result is a comprehensive settlement.

In our view the EU made tactical errors in phasing the negotiations and holding up discussions on substance to put the U.K. under time pressure. It did result in agreements on money and a fair bit more but lack of visibility on substance, much of which has not been agreed yet, has meant that the withdrawal agreement has been poorly supported. Without ratification the EU's gains remain provisional.

The U.K. is likely to do better in such negotiations but it is clear imposing disbenefits on the U.K. also imposes them on the EU.

How the question of what happens to elections to the European Parliament is handled is perhaps best left to suggestions from the EU.

If an extension were to be short it is clear that the purpose would have to centre around ratifying withdrawal agreement terms, which may be harder than reaching a comprehensive settlement, to reach an early Brexit.

So the purposes of long or short extension differ.