Brexit was always going to mean border controls
The question which should have been asked of Boris Johnson this week, but so far as I know was not, is this: why, before the referendum did you say that Brexit would leave the Irish border “absolutely unchanged”? For in the light of what he has proposed this week it is clearly the case that when he said that he was, knowingly or unknowingly, wrong. And he had no excuse for not knowing, because John Major and Tony Blair – both central to the Northern Ireland peace process – had spelled out that it would mean the reintroduction of border controls. This would have been so even under a ‘soft Brexit’ on the Norway model, because Norway is not in the Customs Union.
Johnson and the other Brexiters who denied this during the Referendum must now know that they misled the public. For the government’s new proposal on the Irish border self-evidently means that a great deal will change, were it to be accepted by the EU.
The outlines of this proposal have been widely reported and criticised. In summary, the suggestion is that, after the transition period ending in 2021, the entire United Kingdom should leave the customs union, with the consequence that customs checks would have to be made between Ireland and Northern Ireland, albeit not ‘on’ the border.
In addition, Northern Ireland (only) would retain a significant degree of ongoing regulatory alignment with the EU, for agricultural, food and industrial goods. However, this would be subject to the agreement after four years (i.e. 2025), and every four years thereafter, of the Northern Ireland Assembly (which has not sat for over two years). Should it vote against alignment, this would have the consequence of adding Irish border regulatory checks to customs checks. On the other hand, for so long as alignment was agreed, there would need to be regulatory checks between Northern Ireland and Great Britain – in other words, a regulatory sea border in addition to the customs land border.
The border was always going to have a physical component
This does not just falsify pre-referendum claims that ‘nothing would change’. It also gives the lie to all the variants of later claims that Brexit could be done without new border checks through ‘alternative arrangements’ which could deliver exactly the same open border as that guaranteed by the agreed backstop. Many of these arrangements do figure in the Johnson proposal, and some of them are problematic where they rely upon untested combinations of technologies. But, additionally, it is now, finally albeit only implicitly, acknowledged that they cannot be a complete substitute for the backstop. If so, this should mark the final death of the nonsense formerly known as ‘Malthouse Plan A’.
However, quite what this means in terms of, for example, customs clearance sites has been a matter of ambiguity and dispute throughout this week (as explained in Tony Connelly of RTE’s latest excellent weekly briefing). The full proposals have not, of course, been published, only a seven page summary which talks coyly about “designated places” for “physical checks” (para 17b). Still, it seems clear that it has now been accepted by the UK government that an entirely non-physical customs border is impossible.
Friction, red tape, and standards
Associated with that, another repeated lie has been quietly disowned – that ‘frictionless trade’ could continue after Brexit, whether at the Irish or any other border with the EU. That in turn shows the emptiness of another Brexiter shibboleth, namely that leaving the EU will reduce the ‘red tape’ faced by business. Consider, for example, the extra bureaucracy for businesses shown by the government’s preparedness advice for exporters to the EU. As regards Northern Ireland in particular, the new proposals have been described as “unworkable and unpalatable” for businesses.
On the other hand, the government have now backtracked on Theresa May’s agreement – which was also something that many Brexiters promised - not to use Brexit to lower standards in relation to competition rules, state aid, environmental protections and labour rights (the ‘level playing field provisions’ of May’s deal). This also seems to presage the abandonment of the promise of a future ‘Canada +++’ trade deal in favour of something much more limited in scope.
The Good Friday Agreement
Crucially, Johnson has now disowned the December 2017 agreement with the EU – made whilst he was still Foreign Secretary – and the commitments made about the Irish border and the Good Friday Agreement (GFA). Brexiter wiseacres typically say that the GFA makes virtually no mention of the open border but in doing so they miss the point: at the time of the agreement the reality of an open border was part of the taken for granted assumptions.
Perhaps even more importantly, a key reason why the GFA became viable was because of the very fact that both Ireland and the UK were member states of the EU, making it possible for the first time to blur some of the issues of sovereignty and identity, and to make multiple and layered identities and affiliations possible. A border, however configured, damages this subtle but crucial shift in political psychology, with potentially far-reaching consequences.
The crux of the issue is that although the Johnson proposals repeatedly insist that they honour the GFA, they interpret this in the very narrow sense that border infrastructure and checks mean infrastructure and checks at the border line. But this misses the key point that, wherever located, such infrastructure and checks constitute a border. Thus, as the leading customs and trade expert Dr Anna Jerzewska notes, the proposals mean, in effect, the return of a hard border. It is this which will be unacceptable to many in Northern Ireland, to Ireland, and ultimately to the EU.
That is even without other problems with the proposals, as set out by Alex Stojanovic of the Institute for Government, which include – in brief - the reliance on the Stormont Assembly; the very significant exemptions and exceptions it would require the EU to make to, in particular, the Union Customs Code; the unfeasible timescales for introducing the new plans and technologies; and the risks of smuggling, which will increase the greater the divergence that develops from EU rules in the future. (See also this informative twitter thread from Peter Foster, the Telegraph’s Europe Editor, on the issues the proposals pose for the EU).
Designed to fail?
Overall, there are now multiple signs that although the EU may go through the motions of talking about these proposals, they won’t lead to an agreement, at least in anything like their present form. Some believe that this is precisely Johnson’s intention: to present something that he knows the EU can never agree to so that he can then blame the failure to reach a deal on the EU and justify a no-deal Brexit.
That is very plausible, although I think that at least two other interpretations are possible. One is that – as with the Brady Amendment – the focus within the UK has been primarily upon what might get agreement within the British parliament, with EU agreement left as an afterthought. That parochialism and arrogance has long been on display and may be a factor again.
More importantly, though, there has for many months been an idea amongst some Brexit Ultras that Johnson and his advisors may well have imbibed. It is the fantasy that the EU would accept the proposed arrangement because if the alternative were no deal then something like it would be forced on them anyway, because some kind of border would come into existence. On this logic, the EU might as well accept it now, and keep the other elements of the Withdrawal Agreement in place.
If this is the idea then it is deeply flawed. It would entail – by treaty – the abandonment of Ireland, in violation of one of the core premises of the EU as a body offering solidarity amongst large and small members alike. Moreover, it would mean the creation – again by treaty - of a potentially significant hole or backdoor into the single market. Much in the proposals amounts to asking the EU to sign a blank cheque for the future, which is precisely what the backstop sought to avoid. In a way, they are a reprise of the ‘row of the summer’ of 2017 that never was – that is, the question of sequencing of withdrawal terms and future terms – in that they shift a lot of the future detail about how the Irish border will work into the post-Brexit discussions.
On the other hand, if an Irish border is forced upon the EU by no-deal Brexit then the costs for the UK are enormous – no transition period and a very unfavourable environment for subsequent negotiations with the EU. Moreover, the damage to UK-US relations would be calamitous. Trump may not care about the Irish border but Trump is not the only player, and won’t be there forever, and many in US polity (and electorate) care deeply.
Farewell to ‘managed no deal’
If we are heading towards no-deal Brexit, then there was another Brexiter fantasy that was quietly demolished this week. In an exchange of letters, Brexit Secretary Steve Barclay asked Michel Barnier for “structured engagement” over the range of issues that would arise in the event of a no-deal Brexit. Barnier’s reply was to the point: these issues had been dealt with by the Withdrawal Agreement. The EU had made its own no deal preparations, and there would be no negotiations on these matters. It could hardly, within the protocols of such things, have been blunter.
Whilst scarcely remarked upon amid the press of events (the letters were published last Sunday) this moment – though not in itself a revelation - marked the final death knell of the always absurd idea of ‘managed no deal’. That fantasy was also known as ‘Malthouse Plan B’, so along with the demise of Malthouse Plan A, noted above, we should hopefully have heard the last of this wretched nonsense, just as we rarely hear much about German car makers any more.
Farewell to no deal?
As to whether we do indeed face no-deal Brexit at the end of this month, once again there is a dense thicket of confusion and falsehood to navigate. On the face of it, the Benn Act means that it will not happen, because the government will seek an extension. In a new court case in Scotland this week it was confirmed that Johnson would, as required, send a letter requesting an extension if no deal has been reached with the EU by 19 October.
Yet, immediately, an unnamed senior Number 10 source (does this mean Dominic Cummings?) was talking about other ‘interpretations’ of the Act being possible and seemed to suggest that 31 October would still be the leaving date even if there was no deal. People “would have to wait and see” how these contradictory statements could be reconciled.
On the face of it, that seems completely impossible. There has been a lot of speculation that a country – the usual suggestion is Hungary – is set to veto the extension, so that the letter could be sent and yet, still, no-deal Brexit occur. But almost all informed commentators think that is highly unlikely. In a way, it is another version of that defunct idea about German car makers in that it imagines that someone or something will come riding to the rescue of the Brexiters’ dreams.
Whatever the ideological affinities between Orban’s regime and Brexit, it would not be in Hungary’s interests to thwart the EU if its collective view, and that of its dominant players, is to grant an extension. Hungary has its own battles with the EU, and is unlikely to use up political capital to help Boris Johnson. It does, in passing, seem strange that the ‘patriotic’ project to ‘take back control’ should now be looking hopefully to a foreign power to find a way of circumventing a law passed by the British parliament.
New lies for old
Alongside all the re-juggling of longstanding falsehoods about Brexit during the last week, the latest ones were prominently on display at the Conservative Party conference: “let’s get Brexit done so we can start to reunite this country”. Seldom can a political slogan have rung so hollow. Whatever happens, there can be no possibility of ‘getting it done’. It is a sentiment presumably designed to appeal to those – represented in endless TV vox pops – who angrily demand that the politicians ‘get on with it’. But they are being misled yet again, with what is an updated version of the 'quick and easy' lie.
If there is a ‘deal’, it can only be a Withdrawal Agreement which begins the long and arduous process of implementing its provisions and also negotiating the future trade and other relationships. If there is no deal then, as John Springford of the Centre for European Reform outlined recently, there will be immediate, complex and highly fraught negotiations in which all the issues of the last three years will continue to dominate.
As for uniting the country, no form of Brexit can do that. Opinion polls show that it has not had majority support for a long time. Neither May’s deal nor Johnson’s proposals (were they to be accepted by the EU) resemble what was promised in the Referendum, still less does no-deal Brexit. Which brings us back to the start of this post, and the disparity between what Johnson and other Brexiters said about the Irish border during the campaign, and the reality that we now see. For the same disparities exist as regards almost every aspect of Brexit.
This is not a matter to ‘harking back’ to the arguments of three years ago. All of those arguments and all of the myths peddled and lies told then and since continue to be with us. As this week has shown, they shift in shape and wriggle around like vipers in a basket as they come into contact with reality, and then re-emerge in new forms. For as long as our political discourse is bound by lies we will continue to flounder around, inflicting untold damage upon ourselves in the process.
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