Dan O'Brien: 'Most momentous week in Brexit saga raises new hope and old no-deal fears'
Hopes are rising of Brexit breakthrough, but the dramatic and binary nature of the choices we still face remain, writes Dan O'Brien
Nearly three-and-a-half years since Britain's Brexit referendum and the process of unscrambling the million eggs of British EU membership continues to generate news by the hour. With just 18 days before Britain's membership of the EU lapses, officials are still trying to square the circle of the border on this island.
Until last Thursday afternoon, the signals had been ever more downbeat on a deal. Increasingly negative briefings, undiplomatic language and a full-scale blame game were all playing out. Then, the Taoiseach and British prime minister met last Thursday. They issued a joint statement which suddenly sounded upbeat about the prospects of a deal. The following day EU and British officials went back into negotiations and, although no detail had been forthcoming publicly by yesterday afternoon, there is much optimistic talk this weekend of a breakthrough. That may happen in the coming days, but there is ample reason to believe this is yet another false dawn in the Brexit saga.
Some issues can be fudged. Others cannot. On Northern Ireland there are straightforward and binary choices. It can apply the EU's common external tariff on goods arriving at its ports from non-EU countries, including Britain; or it can remain in Britain's customs arrangements, which would mean, among other things, EU tariffs having to be collected on the Republic's side of the border on this island.
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Northern Ireland can only be in the EU's single market, with existing and new EU law applying and the EU's highest court having the final say in disputes; or in the UK's market, in which case British law applies and the highest court is the UK supreme court.
These choices are binary. This cold, hard fact has bedevilled one of the biggest geopolitical changes in western Europe in decades.
For 23 months, the position of Ireland and the rest of the EU has been that Northern Ireland must remain in the EU's single market and customs union because there is no other way to ensure that the interaction between the two jurisdictions on this island remains exactly as it is now.
For a deal to happen in the coming days, one side will have to make an enormous volte face. Either Ireland (and the EU) will have to accept that EU tariffs are collected at the border, or Britain will have to accept that those same EU tariffs are collected in Northern Ireland ports.
It will be well known to readers how adamant the Government here has been that it will not agree to any change to the border, including a deal involving tariff collection, so the scale of the climbdown if Ireland gives ground on this will be clear. It should be no less clear how big the climbdown would be for the British side.
Less than two weeks ago, the British government made a formal proposal on how Brexit should happen. It stated: "It is a fundamental point that the UK will be exiting the EU Customs Union as a whole at the end of the transition period. This means that the UK and EU will operate distinct customs territories and that Northern Ireland will be part of the UK customs territory."
On the wider issue of the making of laws that govern markets, the same statement said: "Northern Ireland will be, in significant sectors of its economy, governed by laws in which it has no say. That is clearly a significant democratic problem."
For the British side to have pushed the (accurate) position that the backstop would breach the principle of consent in the Good Friday Agreement, which until recently was not recognised by the Irish/EU side, only to abandon it now would be perhaps the biggest volte face of all. Thankfully, there is a solution to this issue - a referendum in Northern Ireland on which market and customs territory it is a part of in the future.
But if that does not form part of the solution and Boris Johnson concedes on something he has described as 'anti-democratic' and also backtracks on the customs issue, he would trigger opposition from the forces which have opposed these ideas in other guises in the past.
What would happen then? Here in Ireland, Brexiteers are ascribed the worst possible motives - they are imperialists and racists who would starve Ireland if they got half a chance. Stereotyping is a bad idea for many reasons. One is that it leads to analytical failure. One of those failures in this case is a belief that the Brexiteers don't care about Northern Ireland. While that may be true in some cases, it is not in many others - one of the reasons why the hardliners in the European Research Group take their line from DUP MPs.
Another angle which gets little attention in the debate here is the resistance to concede the principle that a part of UK territory can be removed from the UK's customs territory, however that might be dressed up. There is no precedent in the world of a country removing one of its regions from its own market so that it could be governed by the laws and rules of another country or bloc. Even Donald Trump does not demand that zones in Canada and Mexico bordering the US must be part of America's customs territory. Whatever one may think of the idea of a border in the Irish Sea, it is a big and unprecedented proposal. It will face considerable resistance, no matter how it is presented.
And then there is unionism. There has been much gleeful talk of the DUP being "thrown under a bus" if Boris Johnson is the one who performs the volte face in the coming days. If that does happen, then both the DUP and UUP will accuse Johnson of surrender and of sacrificing the union. Whether one agrees or disagrees with that position, it will influence the debate in Britain.
Given these factors, there is limited prospect of Westminster passing a deal if Boris Johnson reverses his previous positions. There have been many momentous weeks in the Brexit saga. The coming week could be the most momentous of all to date. It is also possible that the binary nature of the choices facing the two sides continues to drive the entire Brexit process towards the worst of all possible outcomes - a no-deal exit.