Tuesday 11 December 2018

Constructive ambiguity won't make the border 'bulletproof'

Brexit is not a process. It is an arrangement - so kicking it down the road is not a viable option, writes Eoin O'Malley

Theresa May: Her Brexit problems are also Ireland’s problems.
Theresa May: Her Brexit problems are also Ireland’s problems.

Eoin O'Malley

Northern Ireland has politicians spoiled. It provides interminable crises, which excuse its politicians of the need to do the tough, boring work of politics. It gives Irish and British politicians the opportunity to look statesmanlike - to swoop in, broker a deal, and move on with the helping hand of history on their shoulders. It has cemented an 'us-versus-them' outlook that allows each side to blame others for their own failings.

But most of all it has them spoiled because it's given politicians the impression that every road is long enough that a can could be kicked further down it.

The Northern Irish way of doing things has conditioned the Brexit negotiators.

Before Christmas, Irish politicians hailed the agreement that ended Phase I of the Brexit negotiations. It guaranteed that there would be no hard border between Ireland and Northern Ireland, and that the Belfast Agreement would be upheld.

This, the Irish Government said, was "rock solid and cast iron".

The text of the agreement stated that the UK "will maintain full alignment" with the EU single market, customs rules that support peace, cooperation, and the economy on the island of Ireland.

The Taoiseach said at the time, "we have protected what we sought to protect and we achieved what we sought to achieve", and described assurances outlined in the agreed text as "politically bulletproof".

After his Frances Fitzgerald wobble a week earlier, we saw Leo sock it to the Brits; he said that any obstacles that regulatory alignment created for Britain were Britain's problem, not Ireland's.

The rest of Europe was relieved that the Irish were content, and ready to get on with Brexit.

But the agreement before Christmas was incompatible with Theresa May's speech in Florence last September, where she said the UK would leave the single market and the customs union.

The single market requires regulatory alignment, and while you can leave it and maintain alignment, it all seems a bit pointless.

A customs union means no tariffs can be imposed on goods travelling within the union, and they agree to apply the same tariffs to goods from 'third countries'. It would mean the UK couldn't negotiate its own trade deals with third countries.

The EU Commission pointed out that it was 'hard to reconcile' May's agreement in December with her speech in September. But, no matter. That's Britain's problem.

It was assumed that Britain was going to create some Brexitino (Brexit in name only) scenario. They would craft some legally ambiguous status whereby the UK retains access to the club, abides by all the club rules, and pays club membership fees, but is able to tell itself that it isn't a club member.

The symbolic stuff, such as the EU flag on car registration plates, would be gone. Selling this at home was Britain's problem.

Except it isn't just Britain's problem. It's also Ireland's problem.

Two weeks ago the possibility of Brexitino took a knock.

Under pressure from within her party, Theresa May sought to offer clarity: "We are categorically leaving the customs union. It is not our policy to stay in the customs union. It is not our policy to stay in a customs union."

That 'a' is important.

We were going along with the fiction of the UK leaving the customs union but staying in 'a' bespoke customs union. If it rules even that out, as the EU chief negotiator, Michel Barnier, immediately said, trade barriers are unavoidable - which in turn means some form of hard border is unavoidable.

The December deal doesn't look so 'bulletproof' now.

The Irish side has played well with the pretty poor hand it holds on Brexit. But the Government either overestimated the ability of the British to agree a deal, or over-sold the deal last December.

A problem for the Irish Government is that it is trading in words.

It should know by now that talk is cheap. Assurances from the British might be comforting, but they are worthless when the same side can offer words of comfort to hard-line Brexiteers the following month.

If the Government didn't know this already, the cold comfort of Britain's assurances must have hit home in Iveagh House last week.

The occasion was when UK Foreign Secretary Boris Johnson tried to make the 'upbeat' case for Brexit - but failed to mention the Irish border. Asked about the continued lack of clarity in Britain's position, he pretended to mishear "clarity" for "carrots".

What followed was as bizarre as it was tragic. Brexit "can be good for carrots, too, by the way… we can take back control… to promote organic carrots".

The EU negotiators may have laughed, but did they then cry quietly? What do you do when you realise you're negotiating with a lunatic?

One of the triumphs (and failures) of the Northern Ireland peace process was that it managed to keep everyone, including some lunatics, on the road for a long time. It was a 'process' rather than an agreement. But as long as the process went on, there was peace, albeit an uneasy one.

The European Union has been pretty good at constructive ambiguity and false deadlines itself. We have seen treaties hastily smudged in order to bring recalcitrant countries along. Legal deadlines have melted away when politics demanded it.

The problem is that the Brexit road isn't that long.

In March 2019, likely a few months before that, we run out of road. The EU is rightly losing patience with Brexit, and doesn't want the issue to dominate its agenda for more time than necessary.

While there will be a transition period, Brexit is not a process. It is an agreement. Without a legal deal on a customs union, there will be tariffs. With tariffs come border checks.

And no amount of 'constructive ambiguity' can bulletproof a border post outside Aughnacloy.

Eoin O'Malley is director of the MSc in Public Policy at Dublin City University

Sunday Independent

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