Wednesday 21 November 2018

Explainer: What happens next with the Border deadlock

Varadkar said the terms
Varadkar said the terms "no regulatory divergence" and "continued regulatory alignment" mean the same thing

Colm Kelpie

Did I hear correctly? Did David Davis say yesterday that he wants to see "regulatory alignment" between the EU and UK post-Brexit?

You did indeed. In another bizarre day in Brexitland, the Brexit secretary said he wants any regulatory alignment for Northern Ireland to apply to the whole of the UK after it leaves the bloc in 2019.

Stock picture
Stock picture

But he was quick to stress this did not mean harmonisation of rules between the UK as a whole and the EU, dismissing any suggestion that it meant retaining the same rules as the EU, or remaining in the single market. "Alignment isn’t harmonisation," he said. "It isn’t having exactly the same rules. It is sometimes having mutually recognised rules, mutually recognised inspection – that is what we are aiming at.” What it does is shed some light on the UK government’s thinking regarding the phrase "regulatory alignment". It certainly is no where near as strong as "no regulatory divergence".

What do you mean?

Taoiseach Leo Varadkar said the terms "no regulatory divergence" and "continued regulatory alignment" mean the same thing. Remember the former was replaced with the latter in the draft text of the agreement.

But there’s no doubt the term 'alignment' is a less precise form of language, that suggests wriggle room. The change was a diplomatic move to try to get unionists on side. It didn’t work, though. But, with Mr Davis’s intervention suggesting a cherry-picking of what could be aligned, one wonders if that could persuade the DUP to think again.

Are we any closer to getting this deal over the line?

There’s no indication of that yet. The DUP is holding firm, and relations between it and the Government here seem pretty poor. The party’s hierarchy accused the Government of behaving in a "reckless and dangerous" way.

In an extraordinary development, Arlene Foster told RTÉ that the text of the draft deal came as a "big shock" to the party, and it only saw it on Monday morning, despite asking for it for five weeks. If true, that is an incredible indictment on the British government’s handling of the matter.

Read more: Explainer: How the Brexit border deal collapsed as the task ahead looks bigger than ever

To be fair to the DUP, its position has always been that there should be no border between Northern Ireland and the rest of the UK, so this should not have been a surprise to Prime Minister Theresa May. Ms Foster also claimed it was the Irish Government that blocked the wording of the text from being sent to the DUP, a claim flatly rejected by Dublin.

The Government here is staying out of it, with the Taoiseach declaring to Mrs May “the ball is in your court” to resolve the issue.

Time is tight though?

Correct. Striking an optimistic tone, the Taoiseach has stressed there is time to get the agreement back on track before a meeting of EU leaders next week. Although EU diplomats and officials told Reuters Mrs May must deliver her offer on a Brexit divorce package this week. Failure could mean a delay until February.

What a shambles. And it seems like other parts of the UK are screaming out for what was tabled for the North?

Yes. The Scots, the Welsh and even the Lord Mayor of London wants a special deal, even though the UK government argues none of them will get it.

So what next?

It’s hard to see where the British can go from here. Both sides will look to a form of words that will provide creative ambiguity, as the saying goes. Davis’s intervention yesterday could form the basis of the UK’s offer. But the positions are clear. The Irish Government doesn’t want a hard Border.

The only way to avoid that, in the absence of the UK pledging to stay in the single market and customs union, is giving the North a special deal that will see it mirror the EU’s rules, leaving a border down the Irish Sea.

Then again, the term "sufficient progress" has always been suitably vague. That might be where the creative ambiguity will come in.

Online Editors

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