Thursday June 7 2018 may go down in history as the day hard Brexit died. It has tripped over the conundrum of the Northern Ireland border, as it was always going to do. The only reason there isn’t more noise is that the Brexiters do not realise it yet.
There was only ever one possible answer to avoiding a hard border, and that is either Northern Ireland or the UK as a whole staying in the customs union and the single market for goods. Finally the British government has accepted the inevitable in its “ backstop” proposal: the UK will stay in the customs union, although it will be called something else, and we will have to negotiate regulatory alignment by remaining in the single market for industrial and agricultural goods. The proposal suggests that the UK will be able to negotiate new trade deals with third countries from this position, but you only have to think about that for a moment to realise it is nonsense. The only area where we would have any scope for separate deals would be on services. And who is going to reach a free-trade agreement with the UK on services alone?
David Davis , the Brexit secretary, claims to have fought and won a battle for a firm date for the end of the backstop. But it is clear from the wording of the proposal that he has lost. The end of December 2021 is at best an aspiration, even if it were accepted by the EU. And there cannot logically be a fixed date for the end of the backstop because its end is conditions-based not time-limited. It can only be replaced if the EU and the UK agree on a replacement.
The government has wasted a year arguing about what the new trading relationship with the EU should be. However, the two options it is considering — “maximum facilitation” favoured by the Brexiters in the cabinet and a new “customs partnership” favoured by the rest — aren’t acceptable to the EU.
When the government argues that the backstop is temporary and it does not expect it to be implemented, it is whistling in the wind. Why would the EU accept something worse than the backstop the British government has itself proposed?
Some in Brussels with a conspiratorial turn of mind might think this is all a British plot to get the benefits of the customs union and the single market without the obligations of free movement and financial contributions. That is why the response of Michel Barnier , the EU’s chief Brexit negotiator, demands the backstop respect the integrity of the single market and customs union.
It is quite possible that the EU will reject the government’s new backstop, insisting that at least the single market provisions apply only to Northern Ireland. That, however, would require border checks for goods crossing the Irish Sea which is likely to be anathema to the Democratic Unionist party, whose MPs are keeping Theresa May in office.
The problem all the way through is that the Brexiters have not taken the Northern Ireland problem seriously. Boris Johnson, the UK foreign secretary, was caught out last week in a leaked recording saying it was a matter of the tail wagging the dog. He said only a handful of firms traded across the border so the problem was easy to solve. But that is to miss the point. The problem with the Northern Ireland border is not how long it takes a lorry to cross, but the issue of identity. Putting in infrastructure at the border and closing off small roads to stop smuggling will reopen the question of identity settled in the Good Friday Agreement. And the government has made clear it will not do that.
Of course, the theoretical possibility still exists of Britain crashing out of the EU with no agreement. But there is no majority in parliament for a no-deal Brexit.
All of this means that the UK is now staying in the customs union and, probably, the single market for goods, indefinitely. And on this, and this alone, I agree with the Brexiters. Why on earth would we do that? We end up with a worse deal than even Norway. We would have all the burdens of membership but no say in the rules that we were applying. The bit of the EU we would be leaving — the single market for services — is the one we can profit from above all else.
The writer was chief government negotiator in Northern Ireland from 1997-2007