Like falling dominos, the remorseless logic of avoiding a border in the Irish Sea eventually pulls the whole of the UK into the customs union and single marketby Ian Dunt / June 7, 2018 / Leave a comment
There is no way out of the backstop omnishambles Theresa May finds herself in. She is trapped on all sides by immovable objects and impossible choices. You might even feel sorry for her—if it wasn’t for the fact that she is directly responsible for it all.
The backstop originally reared its head in the December agreement with the EU. All it really does is restate the British government’s own negotiating objective, which is that there will be no hard border on the island of Ireland.
May’s current plan to avoid that is either a customs partnership or the so-called ‘max-fac’ model of technological solutions.
Neither of these are treated with any seriousness by those who understand these things, so an insurance policy is required in case they fail, which they almost certainly will.
That’s what the backstop is. It says: If everything else goes wrong, here is the safety net.
Theresa May’s problem
Today, May intends to publish the British government’s proposal for the backstop. Her problem is threefold: time, space and depth.
Time is the issue dominating the media speculation. Hardline Brexiteers, led by David Davis, insist that the backstop must be time-limited. This is a strange proposition.
If it is time-limited, it is not a backstop. That’s just a point of semantic fact.
Downing Street seems to accept this, at least for the time being.
Lost in space
Then there is the space problem. The EU provision is just for Northern Ireland. This would mean that a border would have to be put up in the Irish Sea, between it and Britain. That would not be acceptable to the Tories’ coalition partners in the DUP. So May is instead proposing that it covers all of the UK.
Europe will resist this. Many Brexit commentators—including myself—misjudged this issue in December. We thought the backstop would suck in the rest of the debate and churn out a soft Brexit for the whole of the UK. But actually that doesn’t work.
If Britain ended up in the customs union by default, it would create a weird constitutional contortion. We’d be in the legal and regulatory ecosystem of Europe, but without a formalised structure to how it would work.
Brussels is open to the UK staying in the customs union, but it has to be through the negotiation on a future trade deal, where it can be developed with full legal status and not just as continental-level makeshift triage.
This does not necessarily mean that there has to be a border in the Irish Sea. Britain could accept the backstop then reach around the back end, in formal trade talks, and line up the rest of the UK’s policy with Northern Ireland.
We would construct our overall customs arrangements so that they matched whatever we’d been forced to agree over the Irish issue, but in the context of the future relationship, where all the legal and constitutional issues can be ironed out.
Out of our depth
The trouble is depth. Even though we keep talking just about the customs union, that’s not the end of the story. The single market also requires checks on the border when goods are imported.
So the backstop would need to be for more than just a customs union. It would also need to cover the single market in goods. You can leave out services because they don’t need to be checked at the border.
Except you can’t, because the EU won’t allow cherry-picking of the single market. This is where you want to start banging your head on the desk. It is frustrating, but there is no escaping it. It is the bleak reality of what we have done.
You can’t just take one bit of the single market, ignore rules on things like free movement, and then do whatever you like with this other bit over here. The Norwegians might have secured a carve-out for agriculture and fisheries, but Brussels is not going to split the single market right down the middle between goods and services.
Like a game of 3D chess
If you accept the customs union, you must accept a single market in goods. And if you accept that, you must accept the single market as a whole.
The remorseless logic of avoiding a border in the Irish Sea eventually pulls the whole of the UK into the customs union and single market. It is like watching dominos fall down. One leads to another which leads to another.
But at no stage in that tumble are the answers politically acceptable. The hardline Brexiters in the Tory party will only accept the backstop solution if it is time limited. But Brussels will only accept it if it is not.
Brussels will only accept the backstop if it is limited to Northern Ireland. But the DUP will only accept it if it covers the whole of the UK.
If May then tries to go around the other side of the backstop by matching it with general trading provisions, she will end up keeping the country as a whole in the single market and customs union. And that means that the hardline Brexiteers won’t accept it. The horrible cycle comes back around to the start.
There is no way out. It is like 3D chess, but all the pieces are made of poison. Crisis points have come and gone before in the Brexit debate, but this one really seems unfixable unless May stands up to the hardliners.