The Border Deal – So where are we now?
On 8th December the UK and EU reached enough agreement in the Joint Report to allow EU heads of state to sign off on the first phase of withdrawal negotiations. On the Irish border it was based on three options of varying seriousness:
I. The British would live up to their promise of ‘no hard border’ by means of a bespoke trade agreement with the EU. This was no more than an aspiration.
II. A soft border would be delivered by some sort of unspecified high-technology scheme, which it was noted at the time exists nowhere in the world.
III. If neither of these options came to fly, the UK would agree to ‘regulatory alignment’ between Northern Ireland and the EU:
“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.”
This was the ‘back-stop option, the crunch text which got the EU27 to sign off. It amounts to Northern Ireland effectively staying in the customs union and the single market. On both sides it was portrayed as protecting the peace process and the Good Friday Agreement.
Within two days ministers in London were saying it was not binding, so the EU said it would set out the whole deal in a legally binding protocol to the draft Withdrawal Agreement it was preparing to put before the British. That was published on Wednesday.
As Michel Barnier said, nothing in the text should be a surprise since it had all been agreed in December. Talks would continue on all three options, but if necessary the back-stop regulatory alignment would be effected by Northern Ireland becoming part of an all-island regulatory area.
The EU had nothing to say on the obvious implication that if there was north-south alignment but no east-east alignment after Brexit, then regulatory enforcement would have to be done on a line down the middle of the Irish Sea. However, the wily Barnier was certainly well aware of Theresa May’s dependence on DUP votes, and could surely predict that the east-west issue would be the point of counter-attack.
Within hours, Barnier was being accused of attempting to annex Northern Ireland. Theresa May said ‘no UK prime minister’ could sign up to the back-stop option, although she had pretty much done exactly that on 8th December. To add further confusion, NI secretary Karen Bradley said: “The British government stands resolutely behind the Joint Report from December. There is no change in position … That means there will be no hard border.”
Not so, says European Council President Donald Tusk: “There can be no frictionless trade outside of the customs union and the single market. Friction is an inevitable side effect of Brexit, by nature,” he said on his way to meet Theresa May in London. The back-stop option with its “common regulatory area” with the EU was the best option to avoid border friction – but he would be asking in London if Britain could propose something better. “Until now, no one has come up with anything wiser than that.”
There was nothing to stop the British side producing its own version of a legally binding text of the December Joint Report, or detailing its proposals for options I or II. If they really know how to avoid a hard border while leaving the customs union, we would all love to hear about their plan.
In December the EU27 heads of state agreed a ‘no backsliding’ clause to prevent agreed issues coming back on the table. The British agreed the clause in italics above: if they are indeed now reneging as they seem to be, it is hard to see how talks on transition could proceed next month.