The deal (Withdrawal Agreement) ‘would be an uncomfortable outcome for the European Union: providing quota-fee, tariff-free access to the EU market without any accompanying financial obligations; without any access to UK fishing waters in the absence of further agreement; and without any commitments to align with the majority of so-called level playing field arrangements’. For Tory leavers, what’s not to like in this negotiating triumph for Theresa May? This was the UK Government’s characterisation of the Northern Ireland backstop in its ‘DUP reassurance’ paper UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019, p3). The irony for those with eyes to see is that this ‘unacceptable’ concept might in practice offer the UK a useful post-Brexit starting-point for trade negotiations and a uniquely privileged Janus-faced status for Northern Ireland. It cannot be abrogated unilaterally by the EU and no-one has come up with any substance on the permanent arrangement that is meant to replace it.
The backstop has an unreal quality. The Irish Government’s Contingency Action Plan of 19 December was clear that ‘in the case of a no deal scenario, goods entering the EU from the UK will be treated as imports from a third country and goods leaving the EU to the UK will be treated as exports. All relevant EU legislation on imported goods and exported goods will apply, including the levy of certain duties and taxes (such as customs duties, value added tax and excise on importation), in accordance with EU commitments under the rules of the World Trade Organisation. The need for customs declarations to be presented to customs authorities, and the possibility to control shipments will also apply sanitary and phytosanitary (SPS) requirements for third countries will also come into effect’ (sic, p24). But, not tempting fate, the document says absolutely nothing about how that might be operationalised across the land border with Northern Ireland. This is despite the Commission’s specifying, also on 19 December, that ‘member states must take all necessary steps to be in a position, as from the withdrawal date in case the withdrawal agreement is not ratified, to apply the Union Customs Code and the relevant rules on indirect taxation to all imports from and exports to the United Kingdom (COM(2018) 890)
The UK Government is prevented under section 10 of the European Union (Withdrawal) Act 2018 from making regulations to ‘create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit date which feature physical infrastructure, including border posts or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the European Union’. All that is left to compel a hard border is a punctilious observation of WTO concepts on maintaining smuggling-resistant customs frontiers. Where is the constituency for that?
In a calmer view of the general picture, the UK is still set to join Switzerland and Norway as Western European nations compelled to have strong links with their neighbours but unable politically to sustain the self-abnegation of EU membership. The UK is far bigger, and an existing member, but it never joined the two great projects of the euro and (unlike the other two) Schengen and so cannot undermine them. Once it left, it would get more-or-less free trade on terms set by the EU27. Life would go on, and the new trio could keep one another company in an unsatisfactory rule-taking position with their flags waving.
All the present noise is obscuring the fact that the great prize for remainers of not actually leaving after all is still alive. It should have been long buried by the Conservative and Labour party positions at the 2017 general election. It was saved by the puncturing of the myth of the ‘good deal’ uniting the Conservatives, and of Labour’s greater success than in 1971 of getting their MPs to back ‘no entry/exit on Tory terms’. The complete unpredictability of future pathways – and the risk of sleepwalking into unintended ones – continues to sustain the compelling political drama that is Brexit.