The bogey of a hard border is starting to vanish before our eyes

Majority reaction to the Chequers summit is cautiously optimistic, most reservations from all but the Brexiteer fanatics being postponed, using the alibi  of next Thursday’s publication of the 120 page government White Paper before they fully respond.  If you’re naturally positive, you’ll see it as an undoubtedly soft Brexit;  if  you’re a cynic whether Leaver or Remainer, you may call it a fake Brexit. The outcome can be summed up by saying that on goods and regulations, the UK will take back control, but will agree to follow  EU rules or suffer the consequences. Call that control  if you will, but control by whom ?

That’s the meat and potatoes. The rest is salad – lots of bits and pieces, mind, and some of them could stick in your throat. Despite the reference to making contingencies for no deal and the fudges and omissions  in the three pages of the government statement,  we cannot go back from this;  the only way is forward.

The Leavers can scream betrayal. For Remainers, especially Irish ones, there is a dilemma. Theresa May’s carefully engineered cabinet coup, nurtured with a minimum of fanfare and delivered with zero eloquence as usual,  will I suspect leave the ranters against the UK with a sharp sense of anticlimax and disappointment.  The extremists among them really wanted Britain to be humiliated, even at the expense of Irish prosperity. We’re not out of the woods yet but it looks as if we’ll make it.  For the first time since the referendum, the initiative rests with the UK government for the EU to respond.  While there’s lot of detail to explore and even invent, the Commission is no longer dismissive of  customs alignment or of technology to monitor end-user destinations.

Not that all the claims for the new united Brexit strategy are entirely convincing. Cabinet Office minister David Lidington,  once a junior  NI spokesman in opposition makes a dizzying claim in the Observer..

Making sure Brexit works for the whole United Kingdom has been a priority for the government from the very start. It is why we made strengthening the Union one of our objectives for the negotiations. It is also why we have been assiduous in sharing and discussing our plans with the devolved governments in Wales, Scotland and Northern Ireland.

Tell that to Nicola Sturgeon and Carwyn Jones  And what devolved government in Northern Ireland, was he talking to?

But on border issues  he may be on safer ground.

Both the UK and the EU have made a sincere commitment to the people of Northern Ireland: there will be no hard border. Equally, as a UK government, we could not countenance a future in which a border was drawn in the Irish Sea, separating Northern Ireland from the rest of the UK.

Making this commitment to a common rulebook, alongside a facilitated customs arrangement that uses technology to enable frictionless trade with the EU, will avoid disruption to the integrated supply chains that have been built between the UK and EU, while allowing us to reach out and strike trade deals with new partners. Crucially, it will also ensure that Brexit strengthens our Union by guaranteeing no hard border in Northern Ireland or a border in the Irish Sea.

From  the other perspective, the EU sources who’ve spoken to  Tony Connelly of RTE News are not so far apart from Lidington. De-dramatise the border issue is the common message – and not only from Michel Barnier.

 He had real respect for Theresa May. “I know her daily work is not easy.”

However, Mr Barnier’s speech was still uncompromising.

He had two key messages: The EU was not going to start unraveling its single market just to suit the UK.  And, there would be a bigger push to dedramatise the backstop, ie make it palatable to unionists and the UK government, because it was not going away.

“We are not asking for any border between Northern Ireland and any other part of the UK. We must dedramatise the backstop. We’ll need to clarify how and where these controls [on goods coming in from Great Britain] need to be done. These are only technical controls on goods, no more, no less.”

The UK’s concerns over the backstop, as articulated in the draft Withdrawal Agreement of February 25, are acknowledged in Brussels.  Officials accept that the phraseology is problematic for unionists, to say the least.

There are indications the EU may be prepared to change the language, but not the fundamentals.  “It’s not that we absolutely want a sticker on it saying, this is the Commission original,” says the source.  “If we can find a different presentation on the backstop fine. But the ingredients are there to solve the issue of border crossings and checks.”

Another EU diplomat says: “I think people are conscious that the language [from the draft Irish Protocol in the Withdrawal Agreement] is difficult for unionism.  If there’s any alternative language, let’s go with it.”

But that must be seen in the context of Michel Barnier’s new buzzword of “dedramatisation.”

There will be a push in the coming weeks to examine how those checks can be stripped of their political toxicity, even through the use of maximum facilitation, or max fac, which puts the emphasis on technology.

Brexiteers have wanted to use max fac for the Irish border; the Commission will explore it for the Irish Sea, on the basis that it is easier to have checks on ferries and at ports, rather than along a 500km land border with over 200 crossing points.

But from a British point of view, dedramatisation works both ways.

If the EU were to agree to the UK as a whole staying in a customs union, then that also takes the drama out of the backstop.

That would allow the UK to give itself cover by agreeing to the backstop, with modified language, by October.

The cover would be that there is an implicit acknowledgement on all sides that everyone wants the same outcome: no border on the island or along the Irish Sea.

Much of this can only work if there is an accepted margin of incompatible presentation: the UK effectively swallowing the EU’s legal ororder on customs, but saying they’re not.  The UK claiming to be a third country, but effectively not being a third country.

Again, all of this would be managed and massaged well into the transition period.  And it will depend on the EU not slamming the door shut immediately, notwithstanding the Task Force’s abhorrence of what has been proposed so far.

“It won’t be a deal now,” says one source with close ties to both Downing Street and DexEU.  “But that’s what we’re working towards. It’s the only way the UK can dedramatise things. Anything new and ambitious, but not off-the-shelf, will play out well into the transition.  The question is how you get there. We need light at the end of the tunnel, but we don’t have a tunnel yet.”

The source adds: “There are two options. Put pressure on Dublin, by saying, look, we’re moving towards this – we don’t need a backstop.  Or the second option is, ok we’ll sign up to a version of the backstop – but it needs to be there to provide reassurance that we’re all moving towards a world where customs checks aren’t needed anywhere.”

Human rights have barely featured in the  unveiling of the new UK position so far, certainly nothing to reassure that allegedly “growing  Brexit-induced fears among civic nationalists”.  I leave it to another time to discuss their particular claims for continuing EU and Irish citizenship for northerners after Brexit.  But it seems to me that by analysing the issue solely in Irish terms and appealing only to the taoiseach  sells the rights issue short.  For one thing, the British do not recognise the GFA to stretch that far.  For another, rights apply to the whole citizenship mix, whether British, Irish or both. Given that the laws of the territory are essentially British enacted, you can hardly leave  the UK out of the equation.

A devastating analysis of the loss of rights entailed by the withdrawal of most of the jurisdiction of the European Court of Justice which alone has the power to dis-apply domestic legislation found incompatible with EU law, has been made by the leading constitutional authority Vernon Bogdanor. The Charter and the Court are stronger than the keystone of the GFA, the UK Human Rights Act of 1998 which  brought into UK  law the non-EU European Convention of Human Rights.    Vernon’s paper is essential reading on the subject. Examples of rights guaranteed under the Charter of Fundamental Rights are:

Amongst these rights are the Article 3 right to the integrity of the person which prohibits eugenic practices and reproductive cloning; the Article 8 right providing for the protection of personal data and a right of access to such data; the Article 13 right to academic freedom; the Article 14 right to vocational and continual training; the very specific Article 21 right to non-discrimination on grounds ‘such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ – this article, unlike the European Convention, provides explicit protection for members of the LGBT community; the Article 24 rights of the child, giving effect to a United Nations Convention on the rights of the child, and specifically including a right of access on the part of the child to both parents; and the Article 25 rights of the elderly. There are, in addition, an Article 34 right to social security, an Article 35 right to health care, and an Article 38 right to environmental protection. (Plus the directive on  Working Time).

In evidence in October 2017 to the Commons Exiting the EU Committee, Dr. Charlotte O’Brien of the University of York Law School, detected 248 cases in the courts of England and Wales that had cited the Charter, 17 in Northern Ireland and 14 in Scotland.

Vernon has declined to enter the lists on the specific Irish dimension. His main solution is a beefed- up new British Bill of Rights.   For Northern Ireland he might have added, either coverage by the British Bill or the NI Bill blocked by the unionist parties since 1998.      


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