13 November 2018

When it comes to the Irish border after Brexit, the Government has painted itself into a corner by making too many promises to too many people, says Tim Durrant.

The ‘backstop’ for the Irish border is the biggest outstanding issue in the Brexit negotiations and could still be the sticking point that leads to a no deal exit. The Irish ambassador to the UK told a recent Institute for Government event that in the view of his Government, the backstop is a firm “political commitment” to avoid a hard border on the island of Ireland, if no other solution can be found.

The UK Government has made resolving the issue even more difficult by making three sets of contradictory promises in response.

1. "No customs border anywhere"

First is the promise to Parliament, including the Government’s allies in the DUP, that there will be no customs border between Northern Ireland and Ireland or down the Irish Sea, despite the UK’s ambition to leave the Customs Union.  

No customs border within the UK means a UK-wide customs arrangement, which enrages Brexiteers because it also means the UK would be unable to pursue an independent trade policy. Hence the promise that such an arrangement would be time-limited.

But a time limit contradicts the commitments made in the joint UK–EU report of December 2017, reiterated by the PM in a letter to Donald Tusk in March 2018, that the UK supports a backstop that applies ‘unless and until’ something better is found.

When that report came out, the Government thought it could solve the customs question in the long term through either the ‘max fac’ arrangement or the ‘new customs partnership’, which would have allowed the UK to collect tariffs on behalf of the EU. When both of these were rejected by the EU, they morphed into the Facilitated Customs Agreement (FCA) in the Government’s Chequers White Paper.

There are two problems with the FCA: the EU hates it, and it’s based on untried technology so will not be ready for years. Without any new proposals, the permanent backstop is still needed.

2. ‘No checks’ extended to regulation

Customs is only one part of the problem. To avoid any checks at all at the border, both jurisdictions need to apply the same regulations – rules on things like products standards and animal health – as well. Many of these are set by the EU and apply to the whole Single Market.

The UK wants to leave the Single Market, in part so it can set its own regulations rather than aligning with the rest of the EU. If it changes regulations but does not allow checks at the Irish border, goods going from Great Britain to Northern Ireland will need to be checked to ensure they meet the standards of the Single Market. The Prime Minister has said that there will not be checks on goods moving from Northern Ireland to Great Britain, but has so far been non-committal on checks going the other way.

However, the DUP understand the December 2017 joint report as promising no extra checks on goods going either way between the two parts of the UK. They argue that any such checks would jeopardise Northern Ireland’s place in the UK’s internal market. A leaked letter from the Prime Minister last week suggests that the UK Government is happy for Northern Ireland to keep EU rules in some areas, meaning the Prime Minister is preparing to disappoint the DUP.

3. "The future relationship will solve everything"

All of this is moot if the Irish border is kept open by the future trading relationship – which the PM says will “of course” be the case.

But the EU does not like her attempt to do it via Chequers and doesn’t think it is possible with a Canada-style deal. Even a Norway deal doesn’t do it without a permanent commitment to a customs union, which brings us back to the concerns over a time limit. Which is why everyone is putting so much effort into the backstop.

The PM’s bold assertion that everything will be OK in the future may be yet another of those promises that comes back to bite the Government down the line.

The Government painted itself into this corner – and will have to disappoint someone to get a deal

Why make these contradictory promises in the first place? Each one was, on its own, to get the Government out of a tricky situation – but together they’ve built a house of cards that could collapse at any moment.

At some point soon, the Government is going to have to confront these contradictions head on and decide who they are going to disappoint.