This blogpost was written on Saturday, Nov 17th, 2018

UK politicians are faced with an impossible decision. There is no point pretending otherwise or wishing it were otherwise. There is no good answer to the problems the UK has created for itself when it comes to Brexit and to its relationship with the European Union.

It all comes down to this. How can the UK government, any government and not just the current government, deliver on the Brexit promises to take back control of borders, law and money from the EU, while not damaging trade in goods and services between the UK and its biggest market? It simply can’t. There is no way to square this circle.

Imagine if, for example, Sweden decide to leave the EU. I pick Sweden because it, like the UK, is not a Eurozone member and so is not faced with the problem of untangling its currency with an EU exit. The main withdrawal issue facing Sweden would be fixing its financial obligations on departure, paying its fair share of what it agreed to as a member. Secondly, would be the rights of EU citizens living in Sweden and Swedish citizens living elsewhere in the EU. Probably not a major issue. ABBA would be welcome in Europe, anywhere, anytime.

The most important question to be resolved in the Withdrawal Agreement would be the “framework” for future economic relationship between Sweden and the EU. That “framework” would be identified and thrashed out after Sweden left the EU. No doubt, there would be a transition period because one thing we have learnt from Brexit is that it is impossible to go from being an EU member to a non-member overnight. Life is just too complex.

As an aside, I have never bought the argument, beloved of some UK commentators, that the UK should have waited for years before triggering the Article 50, two-year withdrawal period until after it had made all the preparations necessary for it to leave. Does anyone seriously believe that the rest of the EU would be content to have a “leaver” continuing to play a role in its governance and using that role as leverage in the negotiation of its exit agreement?

Hopefully, we will never have another country leaving the EU but maybe we should think about lengthening the Article 50 period from two to four years but immediately suspending the leaving country’s involvement in decision making. During the four years the terms of the future economic relationship could be negotiated as a counterpart to suspending membership rights.

The “Swexit” negotiations would be conducted in a neat and orderly fashion and Sweden would end up outside the bloc with all the dislocation to trade in goods and services that this would involve.

Now, ask the question why Brexit negotiations are not conducted in this “neat and orderly” fashion? The answer is Ireland and Northern Ireland, and the land border between the two parts of the island and the obligations arising out of the Good Friday Agreement that ended thirty years of bloodshed that saw over 3,000 killed.

Now, if Sweden left the EU there would be little political, whatever about economic, concern over the hardening of the border between Sweden and Norway or the creation of new border controls between Sweden and its EU neighbours, whether land or sea, or on the bridge that runs between Denmark and Sweden. Just as there is no existential concern, beyond the economic chaos that could be created, by sea borders between the UK and France, Belgium, the Netherlands and other EU countries.

But Ireland is different, very different. Let me put it bluntly, even if the bluntness evokes howls of outraged protest from Northern Ireland unionists and English nationalists who have very recently discovered a unionism they never knew they were possessed of.

Northern Ireland is not a normal part of the UK, as is Manchester, Newcastle, London or Cornwall. Northern Ireland is contested territory, politically and culturally, between two “imagined communities” with conflicting overarching national loyalties. One community looked south, to Ireland; the other east, to the United Kingdom. Nationalists/republicans on the one side, unionists on the other.

The Good Friday Agreement sought to blur this conflict by finding ways of letting the two communities “be themselves” as they went about their daily lives, even if the fundamental problem was never actually resolved.

That both the UK and Ireland were members of the European Union provided a vital part of the context of the Good Friday Agreement. Customs Union and Single Market membership meant that there was no need for economic and commercial borders between the two parts of the island. Since the 1920s there has been a “common travel area” in existence between Ireland, Northern Ireland and the UK, allowing people to cross borders freely.

The bloody thirty-year strife necessitated security checks at the Ireland/Northern Ireland border, disrupting that freedom. The Good Friday Agreement, in the context of EU membership, allowed all borders and border checks to be once again stripped away.

No one on the island of Ireland wants to see those borders back. English nationalist Brexiteers dismiss the border as a “contrived issue”, designed to prevent a “true Brexit”. In any event, they argue, if there is a problem it can be solved with, as yet, un-invented technologies.

This is little more than a colonialist mindset in which the perceived interests of the motherland always take precedence over those of the “natives”. Such politics may work when you are a global, imperial power, as the UK once was. They hold little sway when you are a medium-sized, island power in the North Atlantic, just off the Eurasian mainland. And when the island behind you that you are intent on demeaning remains part of the global power you are determined to leave.

Remember also that Northern Ireland voted by 56% to 44% in the June 2016 referendum to stay in the EU. As I have written before, I suspect that if the vote was a vote to stay in the Customs Union and Single Market to avoid the return of borders it probably run about 70% to 30%, at minimum.

So, unlike our hypothetical “Swexit”, the exit of the UK from the European Union has to deal with the complications of Northern Ireland/Ireland and the legal obligations that arise under the international treaty that is the Good Friday Agreement. I might also add that the UK has complications with Scotland when it comes to Brexit and these should not be underestimated, especially when the decision on Brexit largely turned on votes in England. When you open the box of nationalism, which is what English nationalism did with Brexit, do not be shocked at the demons you release.

All of these comments are to put the Withdrawal Agreement and Political Declaration that was agreed in Brussels this week between the EU and the UK into context.

What was agreed?

The Withdrawal Agreement covers the issues of the UK’s financial obligations to the EU, citizens rights and the Irish border issue. The Political Declaration sketches out the framework for a future “association agreement” between the UK and the EU that goes considerably beyond any agreement the EU currently has with any non-member.

In November/December 2017 the UK accepted the terms of the Joint Report from the teams of EU and UK negotiators. Article 49 of that report reads:

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 allisland economy and the protection of the 1998 Agreement.

Article 49 became known as the “Irish backstop”.

In Article 50, the UK made a unilateral commitment not to impose any new barriers to trade between Northern Ireland and the rest of the United Kingdom.

As we noted in last week’s Briefing, there were many in the UK government who subsequently claimed that they did not realise the implications of what they agreed to in Article 49 until after the event. The story of the negotiations in 2018 has been the repeated attempts of the UK to find ways around the implications of what it agreed to in late 2017. In particular, efforts have focused on trying to ensure that that different Custom Union and Single Market regulations did not apply in Northern Ireland than applied elsewhere in the UK so that the Irish backstop would never come into play.

Hence the unique and unprecedented agreement the EU has offered the UK. That deal is designed in the first instance to protect Ireland, an EU member, and its Northern Ireland concerns. That it benefits the UK through the free movement of goods is a secondary issue. It is essential to understand this to understand why the EU will not change the proposed agreement and its backstop arrangements, as Tory Brexiteers are demanding (here). As my American friends would put it, the EU has already “cut the UK a sweet deal” and are not going to make it any sweeter.

What is on the table is this:

A “transition period” comes into force on March 30^th, 2019, the day after the UK leaves the EU. It runs until December 31^st, 2020. During this period the UK de facto stays in the EU, follows all EU laws including new laws, and nothing changes day-to-day for businesses or citizens. However, the UK will have no say in EU governance or rule-making. During this transition, the EU and the UK will negotiate the terms of their future agreement. However, practically all well-informed experts say that the period March 2019 to December 2020 will not be enough to negotiate such a complex agreement and more time will be needed.

In mid-2020 the EU and the UK will review progress in the negotiations. If it looks like these negotiations will not be finished by December 2020 then the UK and the EU can jointly agree to either:

• Extend the transition period. This would see the UK continuing de facto as an EU member on the same terms as the 2019/2020 transition. It would also have to continue to pay into the EU budget and freedom of movement would remain in place, or
• The whole of the UK would stay in a temporary customs union for goods with the EU, freedom of movement and budgetary contributions would cease but the UK would be obliged to accept “no regression” in its own laws as compared to EU laws “in the area of labour and social protection and as regards fundamental rights at work, occupational health and safety, fair working conditions and employment standards, information and consultation rights at company level, and restructuring.” (the “level playing field”)
• The UK could only exit the common customs area by mutual agreement with the EU. It could not do so unilaterally. If agreement was reached for the UK to exit the customs area then special arrangements would apply to Northern Ireland to ensure there would be no border between it and Ireland.

Both options are designed to protect the Good Friday Agreement and to ensure no border on the island of Ireland.

The Political Declaration, while suggesting a direction of travel, leaves open all future possible arrangements between the EU and the UK. But every possible agreement or arrangement has its modalities and the more the UK wants to diverge from the EU then less will there be integrated, frictionless trade. No future agreement will ever be as good for the UK as EU membership. That is a given. There is no “virtual membership” of the Customs Union and Single Market, a sort of “being there and not being there” at the same time, as appears to be Labour Party policy. The EU is not going to cut the UK a better deal because it is negotiating with Saint Jeremy rather than with Mother Theresa.

But, however the Political Declaration might be massaged, the Withdrawal Agreement, as described above, is the only agreement that is on the table from the EU. It is not open to renegotiation. The demands of the Gove Famous Five ((here) for a unilateral exit mechanism from the common customs area, for the disappearance of the Northern Ireland backstop and a slackening of the “level playing field” are not achievable and will not be offered.

It’s deal or no deal.

What about another referendum? Leaving aside the technical and political problems of arranging one, what questions would be on the referendum paper? The “deal on offer”, “no deal” or “remain in the EU”? Suppose “remain” came in at 40%, “deal on offer” at 35% and “no deal” at 25%? Where would that leave the UK? Could you run it on an “eliminate the third choice” and redistribute the votes so that one side or other got more than 50%? What happens if it is 52/48 to remain?

But these are all internal UK questions and when it comes to the EU all sides in the UK seem to think that that is all that counts.  However, the real question is how would the EU react? Would it be delighted to see the UK back? On what terms? Old terms, new terms? I don’t care what the lawyers might say. These are political, not legal questions. Would most EU members really want a possibly sullen and, once more, disruptive UK around the table? How long before the UK, after a change of government, decides to walk again? The EU does not want the UK forever singing, a le Clash: “Should I stay or should I go… if I stay there will be trouble…If I go it will be double”

As readers of this Briefing know I have always believed that Brexit was an extremely unwise decision on the part of the UK, a decision that is not in the best interests of the UK, its near neighbour, Ireland, or the EU in general. But it is what it is and we are where we are. And where we are offers no easy paths forward There are no simple solutions. Another referendum, in and of itself, is not a magic bullet.

The Withdrawal Agreement on the table from the EU is all there is. Theresa May has played a bad hand badly and has alienated many people along the way. She is certainly no political salesperson. But given where things stand today could anyone else do better? (See here for a Tory take on this issue).

Maybe all the UK can do now is to leave the EU on the Withdrawal Agreements terms and then seek to rebuild relationships during the transition period. The UK remains a de facto member of the EU during the transition. Could, during the transition, de facto become, potentially, de jure also? Maybe that is the time to have another referendum, when the terms of the final deal are known?

So sad to see a good friend come to this.