Behind the detail of Clause 49

Behind the detail of Clause 49

by Miles Saltiel
article from Wednesday 13, December, 2017

 I’M SORRY, but this blog is for the nerds, as it goes through Clause 49 with a fine toothcomb. Its purpose is to explore the extent to which Theresa May has yielded on “regulatory alignment”. If she had done so, it would have the effect of abandoning the benefits of departure from the Customs Union and the Single Market. These matter as enabling trade negotiators to make deals with third parties on goods and service respectively; as well as re-establishing control over our borders. This is the way it looks to me:

Communiqué text
Clause 49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. 

My take on this...
This preamble is ostensibly forcibly expressed…

“…overarching requirements…of avoiding a hard border”.

…but is then weakened by the clauses below which give it effect.

Communiqué text 
The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. 

My take on this...
This expression of the UK’s “intention” reflects its longstanding objective of a “deep and special relationship”; and is correspondingly weaker than a joint commitment.

Communiqué text
Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. 

My take on this...
This is compromise language, reflecting the earlier back and forth.

-       The EU got language confirming that it is for the UK to propose a solution.

-       The UK got language recognising Ireland’s “unique circumstances”, i.e., seeking to avoid hostages to fortune in future negotiating rounds.

Communiqué text 
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

My take on this...
The phrase causing contention at the beginning of the week, “regulatory alignment”, is now relegated to this single expression, as the third and least likely option, to be invoked “In the absence of agreed solutions”. This raises two points.

a. No-one engaged in good-faith negotiation wishes such a condition to occur.

b. If it does so, the communiqué itself is likely to become a dead letter, either under the convention of EU negotiations that “nothing is agreed until everything is agreed”, or as a matter of straightforward political reality.

Those of a Jesuitical or Rabbinical cast of mind will also wish to go on to parse the restrictions upon the obligation to “maintain full alignment” with “those (my emphasis) rules of the Customs Union and the single market which…”

-       “…support North-South co-operation… and the protection of the 1998 Agreement”. 
This may mean anything or nothing.

-       “…the all-island economy…” 
This sounds all-embracing but actually refers narrowly to a narrow aspect of agriculture and electrical power networks.

To conclude, Clause 49 displays a certain amount of compromise and a certain amount of fudge. Nothing, however, supports the wishful thinking that soft Brexit is now guaranteed and that third party deals are off the cards. All is still to play for and negotiating the fine print will be hard pounding.

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