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Thursday 8 November 2018

With a withdrawal deal set to be put before Cabinet in a matter of days, Leave.EU navigates its way through Theresa May’s fraught negotiation, from the joint report agreed a year ago to the Customs Union and backstop arrangement we face today via the Chequers catastrophe. 

In December 2020, the forthcoming transition period will end and Britain will leave both the Customs Union and the Single Market, or at least that’s the stated ambition.

Under the terms of the existing arrangement between Brussels and London, agreed in principle between the European Commission and the British government almost a year ago, if at the point when transition ends the UK has failed to devise an imperceptible border system in Ireland able to control the flow of commercial trade, the northern province will become a permanent vassal of the EU, while the rest of the UK will finally make its exit.

Theresa May insists otherwise, we Remain together or we Leave together. The Chequers catastrophe was a feeble attempt to forge a permanent solution to be implemented after transition. Under Britain’s only formal proposal to the EU, the UK would remain in the Single Market for goods, negating the need to reintroduce border controls on the island of Ireland. The unworkable plan was soon rejected by Brussels.

Ireland: no luck for the British

May’s insistence on keeping the Kingdom united is matched by the Irish Republic’s refusal to reintroduce a conventional border. It is feared the sudden appearance at the of checkpoints and customs officers from both countries would provoke hostilities rupturing the Good Friday Agreement, of which the EU sees itself a guarantor.

This is a legitimate concern that Leo Varadkar, the Republic of Ireland’s leader has blown out of proportion, much to the EU’s delight. His predecessor Enda Kenny, was just as unhappy about the referendum result, but vowed to help devise an infrastructure-free border system that would not flare up tensions. But following Kenny’s exit a year after our historic vote his successor immediately grasped the opportunity to cruelly use Northern Ireland as leverage, weaponising the Good Friday agreement to the fullest extent. In doing so, he has become a valuable agent of Brussels.

With all May’s hopes resting on a resolution to the Irish border, Varadkar stands centre stage, validating Brussels’ demands for a confusing “backstop on a backstop”. A quick reminder: the backstop is the EU’s description for the provision keeping Northern Ireland in the Single Market after transition has ceased, when the magic border solution has failed to materialise. Customs controls would then be introduced for goods being transported between Northern Ireland and mainland Britain. With Chequers chucked and May devoid of any other options, she has attempted to swap the EU’s backstop for her own version, a prolonged transition. But May’s proposal gives rise to a fundamental question: when will her backstop end? The British prime minister doesn’t have an answer, neither does Brussels, which is why the EU insists on retaining its insurance policy of holding onto Northern Ireland if all else fails, in other words, the (original EU) backstop to support a new (UK) backstop.

Paradise lost

A whole nine months after first agreeing to the EU’s backstop in the joint report, the Cabinet finally realised what a mess they’d allowed themselves to get into. Ministers began to demand a sunset clause on the prime minister’s version of the backstop. According to sources, it would carry on into 2021, but only by a few months. However, as far as the original agreement is concerned, the inclusion of such a clause in the withdrawal agreement only further necessitates the need for the EU’s backstop.

The solution is simple. The restraints of the original agreement render a deal impossible so it needs be dispensed with – discarding the £39bn pledge would be a wise idea too. This is no major undertaking, the joint report is not a legal document. By dispensing with it Britain can take the EU’s existing offer of a Canada-style agreement. Lest we forget, a functioning border already exists in Ireland. Separate excise, VAT and Corporation tax regimes together with independent telecoms and energy markets, not to mention different currencies visibly differentiate the island’s two parts. The introduction of minimal infrastructure at the border and customs controls much further inland would do little to reinforce the existing division. Under these terms the British government would secure a sovereign Brexit, keeping the United Kingdom intact, and repatriating legal and judicial independence, assuring herself a bright future as an independent trading nation.

Fifth column

Theresa May is not a daring politician however, she will not be reneging on prior agreements and besides, the cul-de-sac she has trapped the nation in serves the Remain-voting PM very well indeed. The backstop restrictions leading to interminable membership of the Customs Union, like Chequers absolve the need for customs controls at roll-on-roll-off ports like Dover and Folkestone. Philip Hammond is particularly keen to keep these points of access to the continent operating just the way they are. All of which explains why the government has made only cosmetic no deal preparations. The prime minister wants the threat of chaos to British trade to linger in the background inducing fearful MPs to vote through her horrendous Customs Union arrangement.

Speaking at a technology conference on Tuesday, Brexit Secretary Dominic Raab said as much: “I hadn’t quite understood the full extent of this, but if you look at the UK and look at how we trade in goods, we are particularly reliant on the Dover-Calais crossing. And that is one of the reasons why we have wanted to make sure we have a specific and very proximate relationship with the EU, to ensure frictionless trade at the border.”

Given that the prime minister is not going to take a radical shift in her negotiating strategy, the path lying ahead is obvious for all to see. She will continue to feign fundamental differences with the EU’s chief Brexit negotiator Michel Barnier, the EU will not budge, and an unpalatable deal will be forced through Parliament. The emphasis on Downing Street’s operations over the coming weeks is therefore less on negotiating options and more on public relations, which is why yesterday’s memo leaked to the BBC outlining a communications grid in the run-up to the Commons vote on the eventual deal comes as no surprise.

Complacent Cabinet

A month ago, Cabinet ministers were raging at the Mrs May for not putting an end date in the withdrawal agreement, this campaign has since mutated into an even less realistic demand for Britain to be able to leave the Customs Union unilaterally, something neither Mrs May nor her 27 EU counterparts would ever sign up to. The FT revealed yesterday that Downing Street is now satisfied Brexiteer ministers have given up the fight for unilateral exit powers. It was Dominic Raab who, it would appear insincerely, demanded for them in a letter to his boss over the weekend, setting the scene for Varadkar to make a flat rejection on Monday.

In turn, the Taoiseach formally offered for the first time a long talked about “review mechanism”. In the intervening days, Geoffrey Cox’s has been drawn into the fold. The Attorney General, one of the highest paid legal minds in the country, is being carefully curated by Downing Street as the man who will defend Britain against any further legal tricks like the Irish backstop. He will somehow find a way out of the quagmire.

Cox will fail, and when he does, Number 10 will be able to say they put the best legal brain in the country – even though Cox is not a constitutional lawyer – on the case. There was simply nothing more that could be done.

At present, the review clause is being presented as a set of conditions over the Irish border. A third party or combined UK-EU council will judge those conditions have been met in the event a border solution acceptable to both parties has finally presented itself. But what constitutes an invisible customs border is not an exact science, ultimately the judgement on whether to allow (yes allow) the United Kingdom of Great Britain and Northern Ireland to leave the EU will be a very human one, and automatically vulnerable to political bias.

The EU’s priorities over Brexit are to humiliate the nation that dared to leave and to enjoy continued unfettered access to Britain’s huge import-dependent market. Under the terms of transition, Brussels will have the Anglo-Saxons exactly where it wants them with no incentive to alter terms. Therefore, no matter how the review mechanism is designed by Cox and his band of legal boffs ensconced in their constitutional laboratory, it is highly doubtful anything will be done to prevent the impending purgatory.

Instead, the third party legal arrangement agreed with Brussels will be so fiendishly complicated that the army of pro-deal spokesperson amassing on the front will be well equipped to market the oncoming defeat as a victory.

Let us hope they are not well-equipped enough.

Brexit Brunch will return on Tuesday 20 November.