This blogpost was written on Tuesday Oct 23rd, 2018

After Theresa May’s statement yesterday to the House of Commons, it seems more likely than ever that we are heading for a no-deal Brexit. Fast.

May effectively repudiated Article 49, the so-called “Irish backstop”, in last December’s Joint Report from EU and UK negotiators to Europe’s political leaders. It was this report which allowed the Brexit talks to move on. The EU will not accept the UK reneging on a clear undertaking, especially as the UK is trying to leverage talks on the Irish backstop to force the pace on its future economic relationship with the EU. (For a full history of the backstop see Tony Connelly here).

Nothing destroys a negotiation more quickly than when one of the parties is seen by the other as acting in bad faith. Renege on a commitment and all trust is gone. May with her Commons statement might have seen off a simmering rebellion in the Tory party over her leadership, but at the cost of breaking faith with the EU.

Back last December the UK government was desperate to move the talks along and get to discussions on the proposed “framework” for future economic relations between a post-Brexit UK and the EU. To do so, it signed up to an “Irish backstop” in the Joint Report which reads:

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. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. 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. [Our emphasis]

However, before this text was finally agreed the UK government took fright and, under pressure from the Ulster Democratic Unionist Party (DUP), whose ten votes in the Commons are needed for it to stay in power, insisted on the inclusion of a second paragraph which reads:

50: In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

It is worth noting that Article 50 is purely an internal UK matter and does not involve any commitment from the EU. Article 50 is the result of a negotiation between May and her own supporters.

It was clear at the time to any careful reader that there was a contradiction between Article 49 and Article 50. If the UK opted out of the EU’s custom union and single market, then, if there was to be no border between Northern Ireland and Ireland, there had to be some form of regulatory control between Great Britain and Northern Ireland. Otherwise, the GB/NI trade corridor could, potentially, be used to move goods into the EU market that fell below EU standards.

Within days the UK government began to suffer from what we have previously described as “negotiator’s remorse”. This condition occurs in negotiators who, to lockdown a deal agree, often under enormous pressure, some last-minute language, the importance of which they may not fully understand.

They justify it by telling themselves they can “fix it later” or “it is not that important and, in any event, we got what we wanted on the main issues”. However, days later, when the consequences of what they have signed off becomes clear, they go into a form of denial, arguing that what was agreed does not mean what the other party says it means. “They have got it wrong, I could never agree to what they are saying I agreed to”.

They then expend time and energy trying to find a way to walk back what they agreed.

This is precisely what happened in the case of the Irish backstop. Within days, UK government ministers were claiming that the text was being misrepresented because no UK government could ever agree to any form of “border” between different parts of the UK which, they said, is what the application of different product standard regulations would imply.

On the day of leaving the EU UK-wide standards will be the same as the EU’s. But the whole raison d’etre of Brexit is to “take back control” which means UK standards diverging from EU standards over time. Otherwise, what’s the purpose of Brexit?

But, if and when UK standards diverge from EU standards border controls become necessary to ensure that sub-standard goods do not enter the EU. This will mean controls at the English Channel between, for example, the UK on the one hand and France, Belgium and the Netherlands on the other, but these are sea borders running through ports which can be relatively easily managed. To say that they can be easily managed is not to underestimate the costs and delays that will be involved in building and putting in place new control mechanisms. Outside the EU’s single market and customs union there is no such thing as “frictionless” trade. All markets, everywhere in the world have borders.

But the Irish border is different to the Channel border. It is a porous, 500km land border, with multiple crossing points, some 300 according to some estimates. Not to mention the fact that you can simply walk across a field from Ireland into Northern Ireland. The Irish border issue is bound up with history, culture, tradition, politics and religion and only physically disappeared twenty years ago as a result of the Good Friday Agreement which was the beginning of the end of the “Troubles” in Ireland, north and south. The fact that both parts of the island were in the European Union facilitated the border’s dismantlement.

Ireland and the EU are determined to protect the Good Friday Agreement and to ensure that no physical border reappears on the island. That’s what the backstop is about. A guarantee that if the EU and the UK fail to reach a future agreement that eliminates the need for borders between the UK and the EU then Northern Ireland will remain in the EU customs unions and the single market for goods. The island of Ireland would be one economic space, though it would continue to have two political systems.

It has always seemed to me that it will be impossible for the UK and the EU to reach any sort of agreement that replicates the benefits of the single market and the customs union. It is simply not possible for a country to have the same or a better deal as a non-member than it did as a member. Brexit is about growing apart, not growing together. Growing apart is what Brexiteers want but, if at all possible, they still want frictionless trade with the EU. Out and in at the same time.

As we have written before, in any process of divergence, the stronger party will dictate terms. Both sides will suffer pain, but it is the weaker party that will suffer disproportionately. Unless the UK were to have a change of heart and decide to stay in the EU single market and customs unions then borders will reappear. When those wider EU/UK borders reappear, the backstop is there to ensure that they do not reappear on the island of Ireland.

Theresa May has declared that any EU-required regulatory checks on goods moving between the UK mainland and Northern Ireland would undermine the constitutional integrity of the United Kingdom.

Given that there already exists a range of differences between Northern Ireland and the rest of the UK, this contention is hard to accept. For example, have you ever tried to use an NI £ to buy something in London? Good luck with that.

More importantly, there are significant differences when it comes to civil and social rights between the two parts of the UK. NI has much tougher abortion laws than the UK and also refuses to recognise equal/gay marriage. You would think that such fundamental human rights differences would be more of a threat than scanning the barcode on a chicken or washing machine at Liverpool, Holyhead or Belfast ports or on a ship travelling between those ports. But no.

Checking a frozen chicken as it travels between Liverpool and Belfast somehow undermines the constitutional integrity of the UK in a way that different laws on equal marriage does not.

I never knew chickens could be so constitutionally dangerous. That’s when they are uncooked. Who knows what they are capable of when they are southern fried!

Since last December the UK government has been desperately trying to find a way to align the conflicting commitments made in Articles 49 and 50 of the Joint Report. Now it thinks it has come up with a way to do so, but in doing so it is walking away from what was actually agreed last December, a Northern Ireland-only backstop.

The EU and the UK have provisionally agreed a transition period between March 29, 2019, when the UK leaves the EU, and December 31, 2020 to allow the UK to more fully prepare for Brexit. During the transition the UK will continue to follow all EU laws, effectively remaining in the EU de facto. No borders will be needed during the transition.

The future economic deal between the two parties is to be trashed out during transition. The UK is now proposing that if by December 2020, when the transition should end, a deal that avoids borders is not agreed then the whole of the UK could stay in a “temporary” customs arrangement with the EU or the transition period could be temporarily extended. Either option would, the UK believes, obviate the need to activate the Irish backstop.

Further, a commitment to allow this must be written into the Withdrawal Agreement. “We must make the commitment to a temporary UK-EU joint customs territory legally binding, so the Northern Ireland-only proposal is no longer needed,” May told the Commons.

May also appeared to suggest that at the end of the post-Brexit transition period in December 2020, Britain could unilaterally choose to extend the transition rather than trigger its UK-wide backstop. But if the UK-wide backstop of a temporary customs arrangement is triggered, she also wants the UK to be able to end it whenever it wants, which would also bring the Irish backstop to an end. The EU would have no say in the process.

Less there be any doubt as to the UK’s intentions, Downing Street sources said after May’s statement that the Northern Ireland-only backstop is “unacceptable” and as the Irish Times reports, British negotiators would like to get rid of it altogether. In other words, they want to scrap Article 49 of the Joint report.

The EU will not accept that part of the future UK/EU trade arrangement can be negotiated by stealth before the UK leaves the EU, which is what the UK would appear to be trying to do with its temporary customs arrangement proposal. Further, a customs union arrangement alone is not sufficient if a border is to be avoided in Ireland. Single market regulations also have to come into play. And the EU certainly will not leave it to the UK alone to decide when to call an end to the “temporary” deal, especially if that would result in a border in Ireland.

As Irish Foreign Affairs Minister and Tánaiste (Deputy Prime Minister) Simon Coveney yesterday warned, “There will be no withdrawal agreement without the backstop, end of story.” Adding, “Ireland wants a close future trading deal with the UK, but at this point the commitments already made need to be honoured.” Without a withdrawal agreement there will be no transition. The UK would be out of the EU with no agreement in place on future arrangements on March 29^th next.

So, there we have it. The UK now wants to walk away from a Northern Ireland-only backstop, to walk away from Article 49 of the December Joint Report. As Coveney makes clear, the EU and Ireland will never agree to this.

Never say never in negotiations. But it is extremely difficult to see how this fundamental clash of views can be reconciled, especially if the UK is saying it will not honour Article 49 and accept an Northern Ireland-only backstop.

The Brexit process has just run out of road.