14 November 2018

The Prime Minister is concluding her withdrawal deal. Many find it unappealing, but Jill Rutter asks if there was ever a better option on the table given where we were starting from.

UK ministers have offered a masterclass in how not to run a negotiation. The end result is a Brexit deal that is undoubtedly a hard sell. But it does have one merit: given the continued polarisation of views, in the Government, Parliament and the country, it is probably better than other options.

The UK did score some minor victories on the financial settlement, with no upfront payment and some of the padding put in by the EU member states removed.

On citizens’ rights it was domestic UK policy that complicated the agreement. The UK has been so concerned about conceding the least possible for EU citizens here that it has secured the minimum for UK citizens in the EU. But the agreement seems to have ended up in about the right place.

We have yet to see quite what the UK has signed up to on governance or on geographic indications. But at least the third ‘G’, Gibraltar, proved to be the dog that did not bark, dealt with in a bilateral arrangement made easier by the replacement of Sr Rajoy by Sr Sanchez as Spanish Prime Minister.

 The UK was always on the back foot on the backstop

The moment the Irish persuaded the EU27 that there had to be a “guarantee” on the Irish border in the Withdrawal Agreement, the UK was playing defence.

If you believed in the Prime Minister’s Florence vision, sold hard around government, there was no problem. A new customs partnership or ‘maxfac’ with extensive exemptions would solve the customs problem, and mutual recognition of regulations would remove the need for regulatory checks. The backstop would melt away in the long-term trade agreement.

There was only one problem: the EU rejected the idea of subcontracting its customs border to a third country and ruled out mutual recognition as the first move in an unravelling of the Single Market. That meant, for the EU, the only solution was Northern Ireland staying in the EU Customs Union and some of the EU’s regulatory orbit. Hence the draft protocol they released in February.

And that is where the EU has stuck. 

The Prime Minister’s negotiating gain is to add back the rest of the UK – either in the transition or into the customs elements of the “temporary” (but potentially very durable) backstop. The price she seems to be paying is a more extensive set of regulatory commitments.

The EU was relatively relaxed about being undercut by Northern Ireland – much less so the whole UK. The bit we have yet to see is how far the Prime Minister has been able to dilute the EU being the sole arbiter of when the conditions to remove the backstop have been met.

Will we ever escape the backstop? The Prime Minister’s Chequers proposition could be regarded as her opening shot to show how the UK could solve the Brexit conundrum – how to allow the UK freedom on trade and some regulatory freedom while avoiding a hard border. Exiting the backstop will depend on finding a landing point that both sides can accept that does that. The EU seems clear that it will involve converting the temporary customs union into a permanent one.

A Labour Brexit deal would not look very different

Labour has denounced the shambolic process of negotiating the Brexit deal. But it is much harder to oppose the substance of what the Prime Minister is proposing.

Labour might have been more forthcoming on citizens’ rights, less allergic to the European Court of Justice and found it easier to agree a deal. But Keir Starmer, Shadow Secretary for Exiting the EU, has always emphasised that Labour would meet the financial obligations, give certainty to citizens and avoid a hard border in Northern Ireland. The level playing field provisions the Prime Minister seems to have agreed to even deliver the longer-term assurances on social and environmental protection Labour seek.

Labour’s objections are not about the Withdrawal Agreement – but about the long-term deal. It wants a permanent customs arrangement and a so-called “strong relationship” with the Single Market. This deal rules neither out and the EU has always made clear that if the UK’s lines change, so will the EU’s offer.

Over the last two years the Prime Minister’s red lines have turned pink, with one notable exception: ending free movement. This is an area on which both Labour and Conservative parties agree. If the referendum vote meant anything, it was taking back control of our borders. That is going to be the big selling point for her deal.

In environmental policy, there used to be a concept that companies trying to meet regulations had to use the 'best available technology not entailing excessive cost' – so-called BATNEEC. The Prime Minister will be hoping she can convince her doubters she has achieved BABNEED: best available Brexit not entailing excessive damage.


I cannot see why we have spent so much time and effort to arrive at this point ! i.e. we follow EU rules throughout transition period. It would appear that any negotiating strength we have does not allow for us to ensure U.K. government can act independently as regards Northern Ireland. Our economic and political clout being insufficient to this end. My contractual experience is not to rely on “ goodwill” or “ both parties to agree” as they are a hostage to fortune contractually. In total the agreement seems to amount to the best of a bad deal or am I missing something ? Geopolitically , I feel my country to be diminished. What is our future trading relationship heads of terms with E.U. ? Did I miss that in your analysis ?