Sam McBride: Overlooked concession by PM may lead to future Irish border dispute

But now that past commitment has left the prime minister tightly constrained as her government searches for some imaginative way of avoiding a visible Irish border without cutting Northern Ireland off from the rest of the UK.

The story of the intriguing decision goes back to Monday, December 4 2017. That morning leaked details of a draft UK-EU agreement caused panic within the DUP because they revealed a proposal to agree that there would be “full regulatory alignment” between Northern Ireland and the Republic after Brexit.

Pressing the political nuclear button, Arlene Foster contacted the prime minister to a make clear that the DUP would not support such a proposal.

Mrs May was humiliatingly forced to leave Brussels – where she had been on the verge of agreeing the deal – and return to London for talks with the DUP.

Within a few days the DUP had secured some changes to the text. The most significant of those involved a commitment to give Stormont a role in deciding on where Northern Ireland should remain aligned with EU regulations and a pledge that Northern Ireland would not face any new regulatory barriers to trading with the rest of the UK.

Despite Mrs Foster not being entirely happy, the prime minister faced down the DUP leader and pressed ahead with agreeing what became the Joint Report.

But the public nature of that dispute diverted attention from a small, but crucial, element of the 15-page document.

Paragraph 43 of the Joint Report contained a commitment from the UK to the avoidance of a hard border and then went on to state that this included “any physical infrastructure or related checks and control”.

It was a sweeping definition which went far beyond the images which the phrase ‘hard border’ would conjure up for most people – customs posts, passport control, barbed wire and soldiers.

It was also a statement which went far beyond the dictionary definition of ‘hard border’. The Cambridge English Dictionary defines the phrase as meaning “a border between countries that is strongly controlled and protected by officials, police, or soldiers, rather than one where people are allowed to pass through easily with few controls”.

So whereas the dictionary recognises that a soft border could contain a few controls, the Joint Report agreed that there could not only be no controls – but not even any unobtrusive surveillance using cameras or other devices.

Remarkably, the DUP did not kick up a fuss.

In fact, the commitment formalised what Mrs May had said in her Florence speech three months earlier when she pledged that “we will not accept any physical infrastructure at the border”.

It was all the more striking a pledge because there has long been automatic number plate recognition (ANPR) cameras and other security recording devices at or close to the border – most of which are designed to be unnoticeable and have not been the subject of controversy.

The reasons for the government agreeing to such a sweeping definition became even more intriguing when in May 2018 a major academic survey by Queen’s University Belfast found that just 14% of people in Northern Ireland said they would find border cameras “almost impossible” to accept.

To put that figure in context, it is less than the number of people who believe in reincarnation and less than half the level of opposition which was (in another academic study) expressed to the idea that people should obey the law without exception.

By contrast, the May 2018 study found there was major opposition to customs checks, police officers, passport checks or soldiers, propositions which were strongly opposed by between 40-50% of the population.

The academics quoted one pro-Remain Catholic as saying: “Cameras wouldn’t annoy me, CCTV is everywhere in Northern Ireland”, although another expressed the concern that cameras would be attacked and then need protected, leading to a spiral in which the border was hardened.

However, only 5% of the population said they would be fairly or very supportive of vandalising border technology, suggesting that the actual threat to such infrastructure has little public support.

Very few experts believe that cameras or technology alone form a credible proposition for maintaining a soft border without other political and trade agreements between either the EU and the UK or the UK and the Republic.

But the significance of Mrs May’s concession was that it made it impossible for such technology to have any role whatsoever at the border. Under Mrs May’s definition of a ‘hard border’ a single camera was put in the same category as watchtowers and machine guns.

That decision makes it baffling that the prime minister is now – on paper at least – agreeing to the exploration of the ‘Malthouse Compromise’, central to which is the idea that technology can be central to solving the border conundrum.

Unless the prime minister is prepared to tear up her own definition of a ‘hard border’, that plan cannot meet her own conditions.

There is little in Mrs May’s demeanour or the apparently hapless way in which the negotiations have been handled to suggest that she has a cunning plan.

But if there is some method to the madness – from senior Whitehall mandarins, if not from the prime minister – it may have been that options were closed off at an early stage which meant that the likely outcomes were always going to be no deal or the softest of all Brexits, gambling that no deal would be unthinkable for the great bulk of MPs and the public.

But whether this situation has arisen out of chaos or cunning, its implications could be far-reaching.

Last year the government refused to say whether its definition of ‘infrastructure’ meant that it reserved the right to put checkpoints on the border if judged necessary for security reasons.

The Department for Exiting the EU told the News Letter that there will “never be a hard border between Northern Ireland and Ireland, including any infrastructure or related checks and controls”.

The open-ended nature of those pledges mean that if there is ever judged a need for infrastructure at the border – even if discreet and unobtrusive – it will represent a broken promise by the British government.

And that, history suggests, would itself be a fresh source of instability and grievance.