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The Telegraph and other Brexit loyalists are up in arms over what should have come as no surprise: the EU has finally cleared its throat and told the UK that its fuzzy-headed ideas for a frictionless border between the Republic of Ireland and Northern Ireland were unworkable. As we’ve said repeatedly, the UK leaving the Single Market meant there would be a hard border somewhere.1 The least disruptive option is the one that the EU has cleverly called a backstop and has fleshed out, that of a sea border. As UK readers know well, that is anathema to the DUP and quite a few Tories, since it will mean for practical purposes that Northern Ireland is more a member of the EU than the UK. Oopsie!
According to the Telegraph, the UK’s two clearly unworkable ideas, which it had tried to make seem viable, were slapped down hard by the EU. It’s hard to tell how seriously to take this, since the Government desperately needs to shift blame for having conned itself and the electorate into thinking there was an viable way to have a land border without causing any hassle to people on either side.
However, a legitimate reason for the ire is that the EU quite deliberately strung the UK along. Recall that the Ireland border matter was earlier on a short list of three items that the EU had singled out as required to be resolved early, before other matters like the transition deal could be addressed. Then when Theresa May was looking particularly wobbly in December and the UK press was talking up the cretin Rees Mogg as a possible PM, Barnier allowed the Government to negotiate the flabby and often internally inconsistent “Joint Agreement” that was a short-term punt on Ireland and sketched out some options on the border matter. May was hailed in the UK press as having achieved some sort of great negotiating win when nothing of the sort had happened.
Since then, the EU has been fleshing out a “backstop,” which is basically the sea border option, with the argument being that there had to be an approach in place in case the UK could not deliver. The Government’s allies kept making incensed noises about this EU move, as if it were underhanded. In fact, given the difficulty the UK has had from the get go in producing position papers or indeed any documents worked out in adequate detail, while the EU move may have seemed insulting, the UK’s shambolic behavior called for it.
But one could argue that the EU indulging the UK on Ireland and finally pulling the rug out from under them now, particularly right after the House of Lords has broken ranks and made clear it want a soft Brexit, was conniving. But the UK has been so consistently unwilling to hear what the EU has had to say about its red lines, such as “No cherry picking,” that the EU was going to have to be brutal for the message to sink in. And as the Torygraph presents it, the EU was pretty rough, erm, blunt. But the unnamed EU leaker also displays an unseemly amount of schadenfreude at the shellacking of the UK’s wooly-headed ideas. This is awfully reminiscent of the unflattering leaks from dinners between Jean-Claude Juncker and Theresa May. Is Martin Selmayr at it again?
Senior EU diplomatic sources said that Mrs May’s plan for avoiding a hard border in Northern Ireland was subjected to a “systematic and forensic annihilation” this week at a meeting between senior EU officials and Olly Robbins, the UK’s lead Brexit negotiator.
“It was a detailed and forensic rebuttal,” added the source who was directly briefed on the meeting in Brussels on Wednesday. “It was made clear that none of the UK’s customs options will work. None of them.”
The demolition of the UK’s Brexit customs policy, set out by Mrs May in her Mansion House speech last month, came after five rounds of technical negotiations in Brussels…..
Although British negotiators were fully aware of EU scepticism towards the British plans, the complete inflexibility on the part of the European Commission and EU member states is understood to have left them shocked….
With talks at an “impasse”, The Telegraph understands that Mr Barnier has told EU ambassadors that he has suspended the EU’s own internal discussions on the future EU-UK trade deal, putting further pressure on the UK to make concessions.
The Telegraph and the rest of the press and punditcracy keep depicting “being in a customs union” as meaning not having border checks. As Richard North explained long form yesterday, that is another huge misapprehension.
North tears his hair today, since this confusion has now moved front and center in the frantic effort to regroup. Forgive me for quoting at length, but he sets the problem out very clearly:
As late as yesterday, Tusk was saying that, if there was no deal on Ireland, there would be no Withdrawal Agreement and no transition.
It follows that, according to Article 50, we drop out of the treaties on 29 March 2019. The customs union is not a fallback position – and neither is it a solution which will allow us to avoid a hard border…
This is to be the subject of a debate next Thursday where the assembled cretins will consider a motion which notes the importance of frictionless trade with the EU for British manufactures and “further notes that the free circulation of goods on the island of Ireland is a consequence of the UK and Republic of Ireland’s membership of the EU customs union”.
Not one of them, it seems, is capable of reading the consolidated treaties, but if any of them had the wit to do so, Article 28 would tell them that:
The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
On the other hand, Article 26(2) gives them the definition of the “internal market” (aka Single Market), which “shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”.
From this, it could not be clearer that the free movement of goods which depends on the absence of “internal frontiers” stems from the internal market, and not the customs union…
Politico.eu was on the case, and it is adding that EU negotiators “have made clear that they are willing to discuss terms by which Britain remains inside the bloc’s customs union, or to negotiate a separate customs union like the EU’s deal with Turkey, which would entail agreed-upon, common tariffs on imported goods”.
Bluntly, this looks confused. A customs union on the style of Turkey clearly doesn’t address the issue of a frictionless border and, unless people have suddenly taken to living in a parallel universe, there can’t be anyone with a claim to sentience who believes this is a solution – or even getting close to one.
As to remaining inside the EU’s customs union, this simply is not legally possible within the terms of the treaty. The European Union itself is the customs union – as per Article 28. The two are inseparable, which means you cannot be inside the customs union and outside the European Union.
Politico’s daily European e-mail engaged in liberal application of porcine maquillage:
Quite simply, time is running out for Britain to find a workable solution to the Irish border issue. The EU wants this resolved by the next European Council summit at the end of June — which means a breakthrough is needed and the details resolved within two months. Lest we forget, the “backstop” Theresa May has signed up to if a solution cannot be found is to effectively keep Northern Ireland inside the customs union — which would be seen by her own Brexiteer MPs and ministers as a betrayal. The PM is stuck between a rock and a hard place, and urgently needs a way out.
North’s conclusion looks correct, that the UK is now on track for a crash-out Brexit. There is astonishingly still no comprehension of what leaving the EU entails among, it seems, both houses of the legislature, all of the ministers, and virtually all of the UK punditry. That means they will not come up with solutions to the problems they are trying to remedy. It also implies yet more incomprehension as the UK will pose approaches to the EU that are non-starters in light of how the EU operates, which the EU will reject them for what ought to understood as perfectly logical reasons. But that will elicit more outrage and upset from the UK, which will instead regard yet more EU rebuffs as proof that the EU wants to punish them by forcing them into the worst possible Brexit, when it will be the UK that has gotten itself in that mess due to unprecedented incompetence.
Shorter: assume the brace position.
1 In fairness, Richard North regularly and in great detail points out that the UK has ignored the option of using its membership in the EEA/Efta to create the sort of very low friction border that exists between Norway and Sweden. But since that isn’t on the table, we’ll stick with the simplified but accurate for our purposes point that leaving the Single Market = hard border.
2 Readers in Ireland point out that if the DUP weren’t such a bunch of doctrinaires, they’d have to admit this is a great economic deal for Northern Ireland, which is a bit of a basket case dependent on subsidies from the UK. Those are almost certain to be cut in post-Brexit austerity.