Will we ever get Brexit done?

Like the House of Windsor has found, without trust nothing much works. This certainly applies to the 2019 UK-EU withdrawal agreement, which has now, once again, been unilaterally suspended by one side, this time the UK. The secretary of state for Northern Ireland, Brandon Lewis, has announced that certain checks and procedures that were soon to be imposed on goods moving from Britain to Northern Ireland will be suspended, with the agreed grace period for adjustment being extended apparently indefinitely by the UK. Lewis may be reminded of a famous remark he made the last time the UK threatened to agree the treaty, only last autumn, which was that it was indeed a breach of international law, albeit in “a specific and limited way”. A few weeks ago the EU unilaterally announced it would invoke Article 16 of the withdrawal agreement and suspend the Northern Ireland protocol, to the shocked surprise of everyone. The backlash from all parts of Ireland caused a hasty retreat. Since then the war of words and sniping has ground on. Last weekend the new British minister for Brexit, Lord (David) Frost accused the EU of “sulking”. “We never sulk” came the reply. Maybe everyone is sulking.

Now, the European Union has said it will see Britain in court. Two courts, in fact. The EU is about to initiate two separate lines of attack. First, it will serve formal notice that it is to trigger “infringement proceedings” against the UK, which will in due course end up in the Court of Justice of the European Union, though that has no jurisdiction, formally, over the UK in fresh judgments.

More relevantly, the EU will also use the existing EU-UK joint committee and the various dispute procedures to pursue its claim. Given that Lord Frost is now the UK joint-chair of the committee, replacing the more polite Michael Gove, that may not get very far in terms of dispute resolution. Apparently Lord Frost had a cordial phone conversation with his EU opposite number, Commission vice president, Maros Sefcovic, though that does not amount to an end to the matter.

Leaving aside the rights and wrongs in political and economic terms, or concepts of “fairness”, in purely legal terms, the EU would seem to have the better of the argument. The withdrawal agreement specifies that both parties must agree before acting and they “shall at all times endeavour to agree on the interpretation and application of this agreement, and shall make every attempt, through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation” (Article 167).

Barring a British cave in, a protracted arbitration procedure will now ensue. It could take the best part of two years before it finally comes to a conclusion, threatening to poison relations across the board and bore the public senseless. Article 169 and 170 set out much of the rigmarole. In due course, an arbitration panel may have to be convened to come to a “verdict”, but of course even that doesn’t amount to a satisfactory answer to the concerns of one or other sides, and end the practical problems that are causing the arguments. The joint committee will be required to name, jointly, some 25 candidates to be members of the panel, plus five people who might be chair. They will have to be “independent beyond doubt” and possess “qualifications for the highest legal office”, which rules out both Mark Francois and Michel Barnier (which would be entertaining). The EU and UK then choose two members each, and jointly select the chair. If they cannot agree in some or all of those then the secretary-general of the Permanent Court of Arbitration (nothing to do with the EU Court) intervenes and decides the membership. That person is currently Hugo Siblesz, who happens to be Dutch. So much for taking back control you may say.

When the panel is formed they will take some months to rule on the case, and their judgment is legally binding on both sides. After a further period of a year to implement the judgment, then fines and penalties may be imposed, provided they are proportionate. In the meantime, temporary measures can be taken by the aggrieved side, such as imposing financial penalties or disapplying other parts of the withdrawal agreement, except for mutual citizens’ rights, which seem inviolable.

In other words, in a worst case scenario, the current disagreements about Tesco lorries crossing the Irish Sea or rose bushes with English soil passing through the Port of Larne, most of the withdrawal agreement and Brexit could unravel.

For that reason alone the pressure as ever on both sides to compromise is intense, but the logical impossibility of reconciling Brexit and the Good Friday Agreement (ie no hard border in the island of Ireland) will continue to impede such compromise.

In some respects, though, the EU’s decision to invoke the law suits the British, because it kicks the dispute into the long grass and in the meantime goods will flow freely into Northern Ireland. A political solution might be found behind the scenes, effectively renegotiating the withdrawal agreement and Northern Ireland protocol, ideally. Even so, that too would take time. Things are and will remain very messy and Brexit represents a constant renewable source of resentment. Brexit has not been done, and on the evidence so far, may never be.