However ‘ingenious’ Johnson’s Brexit deal turns out to be, a Final Say remains the only way to put this to rest
Editorial: The prime minister seems likely to return to parliament with more or less the same deal he resigned over as foreign secretary – and he doesn’t have the votes to pass it
Boris Johnson. No 10. Dominic Cummings. Dublin. Belfast. The European Commission. Some 28 EU members’ governments, their diplomats and spin doctors, journalists worked into a feeding frenzy, the Twittersphere…
The details of the Leo Varadkar-Boris Johnson Brexit breakthrough were never going to stay top secret for very long. And so the leaks have begun, and speculation about the “concessions” offered by both sides during the talks in Cheshire is gradually crystallising into fact, more or less.
The short version of the story is that the Unionists have been unceremoniously thrown under a Boris bus, along with the Conservative European Research Group (ERG) or what remains of them – the so-called Spartans. Some sort of quasi-customs union containing Northern Ireland, Great Britain, Ireland and the rest of the European Union is being concocted that simultaneously avoids any hard border infrastructure between Ireland and Northern Ireland, and “protects the all-island economy”, in the words of Michel Barnier.
This, in essence, is a revisiting of the complex netting-off customs arrangements proposed some time ago by Theresa May and Olly Robbins, a proposal summarily rejected by the EU. Ingenious but complicated, it was a way of fudging the binary nature of a customs union.
At that point the EU was unwilling to sub-contract the arrangement of its external trade tariffs, a form of taxation, to a third-party state, namely the UK.
Perhaps now the time has come for the May-Robbins ploy to be revived, along with a possible customs border down the Irish Sea, as well as the “MaxFac” schemes to ensure free trade between the bits of what is currently the northwestern quadrant of the European Union – UK-Ireland, Calais-Dover and so on. “Alternative arrangements”, then, have been found or rediscovered at the last moment.
The DUP, as the wheels of the Boris bus approach, have volunteered that they do not necessarily reject such a plan, provided it allows Northern Ireland to participate in new international trade deals negated by the UK. This might even be possible, if a legal and practical way for the quasi-customs union to function can be agreed. It may also require the British parliament to repeal the clause in the withdrawal act that outlaws Northern Ireland being placed under any separate customs regime to the rest of the UK.
This was a small but significant victory for the ERG, and one that Jacob Rees-Mogg and Priti Patel, to name a couple of ministers, voted for.
The other major stumbling block was “consent”, and widespread nervousness about the DUP being even an effective veto over the EU’s trading arrangements with the UK as a whole. This was always a one-sided proposition, as it meant the UK could cancel the inconvenience of having Northern Ireland in the EU single market at four-yearly intervals, thus undermining the rest of the agreement.
The principle of consent for Northern Ireland can be made effective in other ways, however, and this no longer appears to be the obstacle it was when first dreamed up by Mr Johnson’s team.
There are other issues to resolve. According to Michel Barnier, Mr Johnson requested that references to the “level playing field” commitments for the future trade deal be deleted. The EU, understandably, does not wish to be undercut by the UK operating under lower standards for workers’ rights, health and safety, banking regulations and the protection of animal welfare and the environment – and in any case, Mr Johnson will not get any Labour rebels to vote for his deal if these protections are no longer legally guaranteed under an international treaty.
Mechanisms for dispute resolution, touching on the sensitive issue of the European Court of Justice, will also need to be clarified. In normal times, such matters would represent a major crisis in any talks. Only the madcap turmoil of late-stage Brexit makes them appear trivial.
If all goes well for Mr Johnson, he will be able to come back to the House of Commons with a deal that he himself resigned over as foreign secretary in Ms May’s administration. Northern Ireland could be even more economically divided from Britain than it was going to be under the May deal.
The ironies are rich indeed but Mr Johnson is not easily embarrassed, and the prize of achieving what seemed impossible will be an irresistible attraction – even though some of those around him would prefer a no-deal Brexit anyway.
Yet it could still go as badly wrong for him as it did for Ms May when she proposed a remarkably similar withdrawal agreement to the Commons and was heavily defeated. The DUP and the ERG, and the opposition parties, could sink it again. Mr Johnson might lose members of his cabinet who are almost religiously devoted to the union between Great Britain and Northern Ireland, such as Mr Rees-Mogg and Michael Gove.
Another catastrophe could easily occur, in which case Mr Johnson could take his case and his deal to the country in a general election… only to be battered by the Brexit Party and sent back to Westminster with another hung parliament and no majority either for his deal or no deal. As ever, the only binary way to decide this binary issue is to put it to the people in a Final Say referendum. It remains the only logical solution: deal or no deal.
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