We have arrived at the position that follows logically from UK decisionsby David Henig / November 22, 2018 / Leave a comment
Prime Minister Theresa May makes a Brexit statement outside No 10. Photo: Matt Crossick/Matt Crossick/Empics Entertainment It is hard to keep track of the theories abounding as to why last week’s proposed binding Withdrawal Agreement, and just-published aspirational statement on the future relationship with the EU do not together represent a good deal. There is the experienced EU negotiating machine against the weak UK one, size mattering in international negotiations, the EU’s desire to punish the UK, UK civil servants conspiring secretly with EU counterparts to keep us close, the Irish border being exaggerated in importance and complexity, incompetence of UK Brexit Secretaries, and we can go on. All interesting, but all missing the fundamentals of negotiations. Both sides set red lines, that they would not cross. Some turned out to be what we call “soft” red lines, that could be crossed a bit. Otherwise there could have been no deal. But some were more fixed. Essentially the deal is the only one that could fit within these lines. It turns out that having bruising negotiators is less important than defining what you want from a negotiation. A few months ago over a beer I compared the red lines with an experienced EU negotiator. We had to guess which would be crossed when we couldn’t work out the deal immediately, but what we came up with was not dissimilar to the Withdrawal Agreement. Indeed, commentators had been making many predictions to this effect before summer. The EU’s red lines were quite simple, no border on the island of Ireland, and preserving the integrity of the single market. The first represented a diplomatic triumph on the part of the Republic of Ireland, which had analysed the issue even ahead of the referendum, and came to the EU with a clear demand. The EU is not always receptive to the needs of small countries but in this case a brilliant exercise in diplomacy in Brussels and other capitals persuaded them. As to the integrity of the single market, this is typically something said and then breached to a degree, but it was strengthened in this case by a desire to ensure the UK did not benefit from leaving the EU. UK red lines were more elaborate. First and foremost, that we are leaving the EU. Like the EU there was a desire to avoid a border on the island or Ireland, but also to avoid a border in the Irish Sea, and to leave the single market and customs union, while retaining territorial integrity. No country outside of the EU has no border infrastructure, so delivering these red lines in combination always seemed rather questionable to experts, including in the Commission. A clue in terms of which could get breached was provided in the PM’s Lancaster House speech, where there was a reference to a new type of customs arrangement. However the issue of Northern Ireland caused a problem even for the Commission’s red lines, since you can’t really keep the province fully in the single market while still a part of the UK, which will be outside. This was the Commission’s initial proposal for a “backstop,” the likely case where no new agreement can be found, that it could make an exception of Northern Ireland on the basis of it being quite small. However the implications of this for trade within the UK, that it is essentially under EU rules, are rather uncomfortable across the political divide. The UK’s possible solutions, of either technology or a dual customs regime, never seemed in any way feasible to the EU’s experts. The Commission’s initial proposal could not be reconciled with other UK red lines. Tested, it turned out that territorial integrity was quite a hard red line. Given the mutual desire to avoid north-south border infrastructure, and also to avoid giving the impression that the UK would never in effect leave the EU (a never ending transition period that both sides secretly believe may yet turn out to be the case), this required some weakening of other red lines. The UK government had always been adamant that the EEA, aka the Norway option, was not possible because retaining freedom of movement was not politically sustainable. Making a customs union UK-wide while Northern Ireland followed EU single market rules was the compromise that both sides made to ensure the UK’s insistence on territorial integrity was broadly respected. Unlike the EEA, however, such a deal comes with no particular consultation on rules to be followed, the EU not wanting to soften its red lines further. The detail of how such a Northern Ireland backstop could operate is so complex it has to be defined after the agreement is signed. The so-called implementation or transition period is simply EU membership without representation. This is meant to provide time to negotiate the new agreement outlined in the political declaration, but if the red lines don’t change, it is hard to see how a different agreement can be reached. The backstop customs union could perhaps be strengthened with greater single market alignment, as per Turkey, but only if it were to be permanent, which would then mean no Free Trade Agreements for the UK. It is a mess, but a mess made of the choices of each party, rather than devious civil servants. The only way to change the deal is to change the choices. Given these relate to issues like territorial integrity, post-conflict borders, independent trade policy and freedom of movement, this will not be easy to do. There is no easy alternate solution, and so far no realistic alternate solution at all, without changing the red lines.