Standing back, what we are seeing is what was always going to happen sooner or later as a result of pursuing a policy with multiple different parts, some of which are by definition irreconcilable. The ultimate root of that lies in the numerous contradictory claims made by the Leave campaign. With respect to the issue of greatest current controversy, the leavers claimed that Brexit would make no difference at all to the Irish border. That could only have been true for the softest, “Norway +”, Brexit which those same campaigners have since said would be no Brexit all.
But as the leave campaign often stated, it was not a government and it would be for a government to set the actual shape of Brexit. Thus the more proximate reason for what is unfolding is Theresa May’s decision to frame Brexit in terms of a series of incompatible red lines. The moment she announced that Brexit meant leaving the single market and having no customs union, but that the land border in Ireland must remain invisible and unchanged she set up some version of the current impasse.
There is by definition no way of being outside of the institutions that abolish borders without creating borders. And that is so irrespective of any future trade arrangement (other than one which puts the UK back within those institutions in some form). It is precisely from that definitional truth that the insistence by the EU that there must be a backstop emerged. The UK could continue, if it wished, to imagine that the truth was different but for the EU, knowing that it wasn’t, the preservation of a fully open border had to be agreed as a fall back until the penny finally dropped, or in case it didn’t. Again by definition that backstop could not be time-limited. Otherwise, it would not be a backstop, for what would come after its expiry?
The unravelling of the phase 1 agreement
It was only by agreeing something along these lines that the phase 1 agreement (of ‘sufficient progress’ on the three withdrawal issues of the financial settlement, citizens’ rights and the Irish border) was reached last December. It is worth recalling that the government hailed this as a triumph of negotiation and proof that critics of Brexit were mistaken. But almost immediately it began to unravel, to the extent that there have never been any significant phase 2 talks at all.
That unravelling was first signalled by David Davis’ almost immediate comment that there was nothing binding about what had been agreed. It became incontrovertible when the Prime Minister came out with a new red line – in large part because of her post-election alliance on the DUP – that a sea border between Great Britain and Northern Ireland was unconscionable.
The phase 1 agreement had had an element of ‘constructive ambiguity’ about what, exactly, the backstop meant (captured in the slightly different implications of paragraphs 49 and 50 of the text) but, suddenly, that ambiguity was discarded and we were left with a British policy that now insisted on no border, anywhere, but, still, no single market and customs union. Far from progress having been made, we were back not just where we started but actually two steps behind that.
Ever since then, there has been a dance to try to avoid the implications of all these red lines that has gone through various permutations of different customs arrangements and assorted ways that Northern Ireland could be treated differently to Great Britain and yet be treated the same. That culminated in Chequers and then the subsequent (all-UK customs union plus Northern Ireland in, effectively, the single market) version which has now blown up. The core of that, on my understanding, is that to get DUP and Ultra support it needs to be time-limited, but if it is time limited then it can’t be a backstop. Last Friday May announced that an all-UK customs union with the EU would never be permanent; on Sunday when that was formally communicated in Brussels, what had been heralded as an imminent deal fell apart.
Meanwhile, the Ultras are in a world of their own. Some, including those like Boris Johnson who were in government at the time, profess not to have understood what the phase 1 agreement contained. All of them favour either a Canada type deal or a WTO no deal, but none of them seem to realise that both mean a border. Or, if they do realise it, they wish it away with the old standby of technological solutions.
Yet even this is contradictory since if they truly believe (as no one else does) that these solutions exist then it hardly matters if the backstop is not time-limited for, on their account, it would either never be used or would only have to be used temporarily. So what would be the problem with signing up to a permanent backstop? Unless, in fact, they realise that the technological solutions are chimerical? That is, if they believe, precisely as the EU do, that in the end the backstop will be needed.
As for Labour, their position – articulated again by Jeremy Corbyn in the House of Commons today - is stuck at advocating a UK-EU customs union, but the main issues as regards the Irish border are to do with single market membership.
As to what happens now, who knows? It’s inconceivable that the EU will agree to a Withdrawal Agreement that does not have a legally watertight, non-temporary, backstop provision for the Irish border. So if the government won’t, or can’t, agree to that then the talks are going to collapse – either now, or next month – and we are firmly in no deal territory. Cue an immediate political and economic crisis.
Or, Theresa May will accept, as she seemed to last December, a permanent backstop, possibly with some kind of ‘dual trigger’ held by both the EU and the UK as to when it ends. If so, she would have to accept the inevitable and possibly substantial cabinet resignations, very likely including Dominic Raab, a possible leadership challenge which she might see off, the loss of DUP support, and hope to get the agreement through the House of Commons with the help of Labour rebels and perhaps less ERG opposition than expected – on the basis that MPs would rather do that than face no deal.
If she succeeds, it will be a hodge-podge of an outcome, subject to endless dispute for years to come, and strategically awful for a services-based economy. If she fails, it’s back to no deal and crisis.
Which way May will jump is not clear. In the House of Commons today* she re-stated that the backstop would be temporary – if so, we go down the first route. But she was vague about stating how long it would apply for, and declined to answer a question about who would have the say on whether or when it ended. Instead, her line was that her hope was that it would never be used in the first place. That’s not especially informative, though, since it is not clear how it would be avoided by any proposed trade arrangement that is outside of the single market, nor is the issue of whether it ever gets used relevant to the terms in which the backstop is defined. So, again, May is still trying to avoid choosing between two incompatibles (in this case permanent versus temporary backstop) by dodging them (in this case by saying temporary but with no particular time limit).
Eventually, choices on this and many other Brexit issues will have to be made. And there is virtually no time left to do so: ‘eventually’ has morphed into ‘now’. As I have repeatedly argued on this blog, the politics of Brexit have been set up in a way that is impossible to deliver on. It follows that at some point that impossibility will become undeniably evident. We are at the beginning of that point.