UK should have quit EU talks when Brussels reneged on border fudge

The Irish border issue ought to be very simple.

We should work out what trading arrangements we want with the EU and then seek the “softest” border between Ireland and Northern Ireland consistent with those trading arrangements, where a perfectly “soft” border is defined as one at which goods are not stopped at the border at all, and “softer” means any such stopping done at the border is quicker or less onerous.

There is nothing in the Belfast Agreement that says there cannot be customs duties payable on crossing the border (whether payable at the border itself or in some other way), different regulatory compliance requirements on opposite sides of the border, or even, if required, the stopping of goods at the border.

However, the British Government’s attitude was that it was so obviously feasible to manage customs or regulatory differences across the border without any stopping at the border (a “soft border”), regardless of what trading relationship finally emerged with the EU, that it was better to say, right from the off, that we would definitely not require any stopping at the border. We would, in the jargon, guarantee no hard border.

If that had been correctly framed and kept narrow enough, such a guarantee would have been harmless, perhaps even helpful, even though it put the cart before the horse in terms of the trading relationship and the border.

The thing that needs to be worked out first is the trading relationship; only then can we work out the details of what to do at the border. But since we were confident that even in the most no deal of no deal scenarios we wouldn’t be imposing border stops, that point of principle seemed redundant.

The issue arose when we started to deviate from the UK’s initial position. There was no way that, through will alone, we could guarantee what the Irish/EU side might do at the Irish border.

It couldn’t ever have been up to us to guarantee that the Irish would not impose border stops. But for whatever reason of her own, Theresa May did just that in her Florence speech. And saying we wouldn’t impose a border should only ever have been a comment on what we regarded as the state of the relevant methods available; it shouldn’t ever have been a guarantee clashing with trading relationships.

If someone said: “But there are no methods that would allow there to be no border stops under any and every circumstance”, we should always have replied: “Well, we don’t believe you are right, but if you are then under those circumstances, whatever they turn out to be, there will be border stops, so you’d better agree with our assessment of the methods if you want no border stops.”

Nothing in the Belfast Agreement committed the UK and Ireland to remaining indefinitely in a customs union and single regulatory area. And if anything in the Belfast Agreement had so committed the UK, it was overturned by the EU referendum, the conclusion of which was that we would be leaving the EU’s Single Market and Customs Union. Now I believe all the above is very clear and would be accepted by pretty much any Brexiteer, any Ulster Unionist, and the vast majority of Conservatives. But I recognise that others might find it politically convenient to dispute such matters.

Such disputes would always have been about hypotheticals — what ought we to commit to in the event we do not do any new trade deal with the EU — until we actually tried and failed to do a trade deal with the EU. So it was unhelpful, unproductive sophistry to get bogged down in them before we’d actually started trade talks. That was what the December Phase 1 Agreement between the EU and UK was supposed to do.

We agreed some things about EU citizens’ rights, and we agreed to move on to trade talks without committing to anything definitive on the “financial settlement” or the Irish border.

There was a “backstop” in the December agreement, to apply if all else failed, but it was deliberately limited and vague. It made no mention (for all the claims since) about the UK agreeing to be forever in “regulatory alignment” with the EU (that phrase never appeared in the document), let alone the UK as a whole or Northern Ireland in particular remaining in the EU’s Customs Union and Single Market.

It said: “The United Kingdom’s intention is to achieve [having no hard border] 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 all island economy and the protection of the 1998 Agreement.”

There has been a great deal of fuss made about the word “alignment”. But “alignment” of various sorts (i.e. achieving the same rules but in our own different ways) was what the UK itself proposed in its Northern Ireland and Ireland position paper, and was specifically restricted to customs compliance rules (e.g. how forms are to be completed); measures to protect humans, animals and plants from diseases, pests or contaminants; and the all-Island Single Energy Market.

There was not the slightest implication that the UK was committing itself to remaining in the Single Market and the Phase 1 Agreement itself was quite explicit that there was to be no border between Northern Ireland and the rest of the UK.

That was the basis of the Phase 1 Agreement. The UK agreed to some issues on EU citizens’ rights and some principles about how the “financial settlement” would be calculated, and the UK and EU would move on to trade talks without the Irish border or the money being finalised until the future partnership (where “future partnership” was defined as a trade deal plus a security deal) was done.

The EU never seemed to like the Phase 1 Agreement, and promptly reneged upon it. Instead of agreeing to move on to future partnership talks, it said the financial agreement and agreement on the Northern Ireland border had to be written into a formally binding “Withdrawal Agreement” — making concrete what had deliberately been fudged in December. The UK should have walked away from the talks at that point.

If the EU was going to renege on such a fundamental matter as the Phase 1 Agreement, how could we expect it to stick to any other deal we did? Weakly and disappointingly, the UK Government did not walk away or even criticise the EU for reneging.

Instead, it agreed to a formal Withdrawal Agreement in exchange for the EU agreeing a transitional deal, extending the de facto period of UK EU membership to the end of 2020, with just a few areas of phased withdrawal (eg no MEPs, the freedom to negotiate our own new trade deals and changes to some security matters).

The UK’s only real sticking point was that it said the EU’s legal draft of the Withdrawal Agreement was unacceptable on the Northern Ireland “backstop”, since it proposed that Northern Ireland should remain in the EU’s Single Market and Customs Union and that there would be a border between Northern Ireland and the rest of the UK.

This insulting attempt to annexe a part of the UK, in clear violation of a point agreed in December, should by itself have triggered a UK walkout, but Theresa May’s decline into capitulation was well under way by this point.

Instead, the UK said it would draft its own alternative “backstop” clause. That brings us to this last week and the David Davis debacle and Michel Barnier’s haughty reply. Some parts of the UK Government appeared to regard the Irish border backstop as a cunning wheeze to enable the UK to remain in the EU’s Customs Union and Single Market but re-establish immigration controls.

David Davis insisted that there had to be a time limit to any “backstop”. Each of these options seems absurd to me and Michel Barnier appeared to rightly reject them in his press conference on Friday afternoon, although his repeating of the alternative of a border between Northern Ireland and the rest of the UK remains as insulting and unacceptable as ever.

Remaining in the EU in all respects except immigration and influence (i.e. MEPs and attendance at the Council of Ministers) would be a huge reversal for the core advocates of leaving the EU and would trigger a Brexit 2.0 movement that might well lead to the end of the Conservative Party.

It would also undermine the integrity of the Single Market, since it would mean the “Four Freedoms” were not indivisible — one could have free movement of goods, services and capital without free movement of persons.

Time-limiting the “backstop” means it isn’t a backstop at all, just a phase. The whole thing is ridiculous and incoherent.

We should stop trying to resolve hypotheticals for the Irish border and get on to doing a trade deal with the EU. Once we know what trade deal we’re doing, we can come back to the Irish border issue and seek as “soft” a border (i.e. as few and as rapid checks) as is feasibly consistent with that trade deal. That was what the UK thought the EU had agreed to do in December.

That’s what we should get back to doing.

The UK agreed to the Phase 1 Agreement, including the money, on the basis that trade talks would start. No such trade talks have begun. That’s not entirely the EU’s fault (the Cabinet, Conservative Party and Parliament can’t seem to agree on what they want to propose in those trade talks).

But we won’t be able to resolve the Irish border “issue” (insofar as there is one) until those trade talks have taken place, and we should stop trying to argue about how many angels would dance on the Irish border in the hypothetical event something happened that everyone says they intend not to happen.

• Andrew Lilico is executive director of Europe Economics and was the Chairman of Economists for Britain during the referendum campaign. This article was written for the website BrexitCentral