Parliament can squabble but the Brexit fundamentals have not changed

Nothing fundamental has changed with regard to Brexit in the last two weeks.

The Chequers Declaration, if it still remains government policy, did not change anything. The White Paper contained lots of details, and overall was intended to change fundamentals. But it will not do so.

Yesterday’s amendments to the Customs Bills mean that the government’s negotiating position is increasingly unclear—and possibly contradictory—with regard to the Irish border. It also indicated that the Conservative Party is more split than ever, which may be highly relevant for future negotiations.

But these amendments didn’t change the fundamentals, and neither will any amendments to the Trade Bill.

For the fundamentals are these. The EU will not agree to a Withdrawal Agreement and any future economic relationship without certainty that there will be no border on the island of Ireland after the implementation/transition period.

In the coming months the UK must therefore choose to have a border, either on the island of Ireland or in the Irish Sea, a continuing close relationship sufficient to avoid a border, such as something like European Economic Area membership, or to ask for an extension of either the Article 50 process or the implementation period. Or possibly some combination of these such as an elongated implementation period sufficient to allow completion of a continuing close relationship. The government currently rules out all of these options.

The votes in parliament don’t change this situation. A parliamentary vote cannot bind a subsequent vote, so if the government was to bring primary legislation which overrules previous legislation that would be fine. Always assuming that it could get a majority of course.

It is that need for a majority that typically leads governments negotiating major international agreements to seek some form of cross-party consensus before the process starts. That didn’t happen in this case, with consequences in terms of the fraught debates that we see. But that fraught debate doesn’t change the fundamentals.

Similarly those carrying out the negotiations cannot be bound by parliament. As civil servants those negotiators work for the government of the day, and it is up to the government not parliament to determine how the negotiations proceed.

There has been much talk on one side of the Brexit debate that technology can solve the need for any border infrastructure in Ireland. But outside the EU all country borders have infrastructure, notwithstanding technology. Apart from the movement of people, not an issue if the UK-Ireland Common Travel Area continues, this border is required to manage issues related to customs and regulatory differences. Even if at some point in the future both the EU and UK can agree that technology can remove the need for border infrastructure, memories of the troubles will continue to make any change from the current invisibility of the Irish border highly sensitive.

The detail in the White Paper was the attempt of the UK government to define a close relationship with the EU on customs and regulatory differences sufficient to avoid a border, while not being too close to the EU to upset too many Conservative MPs. It failed on both counts. The resignations of David Davis and Boris Johnson showed the serious opposition in the Conservative Party to being tied to EU goods legislation without the UK having any meaningful say over these.

Meanwhile no such option as the UK proposes exists for the EU. Its position of indivisibility of the four freedoms (goods, services, capital, people) could perhaps be open to negotiation. But this will only happen within existing frameworks such as the European Economic Area or the kind of Customs Union the EU has with Turkey. Creating a new “common rulebook” where the UK could choose to diverge could never be anything other than a step on the road to an even closer relationship.

In the coming months UK negotiators are therefore going to have to cross the prime minister’s red lines to get closer to the EU’s position, plead for more time, persuade the Commission to accept a UK-wide Irish border solution, or there will be no deal. It is not that the EU cannot move, but it is not going to move so fundamentally to change its existing models for a departing member state.

The big issue the government faces is that the events of the last two weeks appear to have boxed it into a corner where it can move neither forward or backwards, including on the border problem. How the government handles fundamentals it has never fully recognised is now the key to Brexit.