The urgent task now is to close the gap between Leo Varadkar’s idea of a review clause for all-UK temporary membership of the customs union and Theresa May’s. The essential first move is to discover what each means. Both leaders are under domestic pressure for compromising already. Both sides are desperate for a deal, both economies would suffer severely from the chaos of a crash-out no deal. Both leaders would experience the bitter taste of failure affecting their own positions and British-Irish relations.
The importance of getting clarity quickly cannot be overstated.
We learn that the cabinet will take its decision on the proposal for an all –UK customs arrangement,on Thursday leading to the “ meaningful vote” in the Commons on 27th November. That’s the plan. For the British, the issue is whether they can exercise their independent judgement in deciding when to leave the customs union without triggering the backstop and splitting the Union, or being bound to the customs union “forever” and denying the result of the referendum.
At today’s cabinet meeting the Attorney General Geoffrey Cox who is the arbiter on these matters assured its members that a unilateral withdrawal mechanism would be no panacea; it would require “another body to rule that the talks had broken down and so the UK could exercise its unilateral right. Nor would a mutual consent clause provide the EU with an effective veto”. So in this judgement, there is all to play for. As pro- Leave ministers didn’t rebel today, the assumption is that they will swallow May’s plan on Thursday, even though final withdrawal may not happen until 2022, the year of the next scheduled general election. For Remainers that opens up the possibility not to withdraw after all.
What about Michel Barnier who negotiated for Ireland and 26 others? So far he’s declined to speculate about what form a review mechanism might take, sticking to his mantra of being willing to consider amendment to the backstop.
In today’s post-Troubles world, although each side has buckets of goodwill for the other, residues of ancient grievances remain. Nationalism is affecting a new found superiority over the old enemy and a touch of schadenfreude at its Brexit indecision. British unionism has fallen into a bigger sulk with its little friend across the water for thwarting its will, than seems reasonable.
Two pieces from learned professors of the constitution epitomise contrasting attitudes. The first is from Vernon Bogdanor perhaps the UK’s leading authority of the constitution, a Remainer and supporter of another “People’s Vote”, who on this subject is a liberal British unionist and resentful of Irish persistence with the backstop.
It is a pity that there is not more creative thinking, on both sides of the Irish Sea, on a bilateral British/Irish agreement to resolve the complex problems generated by Brexit. It is also regrettable that Brexit seems to be giving new life to certain anti-British “ancestral voices” of which Conor Cruise O’Brien once wrote so eloquently.
Separately, I run a repeat of the FT article by Ronan McCrea, the Irishman who’s a professor of constitutional and European law at UCL “Once again, Britain and Ireland are talking past each other.”
Mrs May is boxed in by her foolish laying down of red lines. But the Republic is similarly stuck. By citing the need to protect the Good Friday Agreement, the Irish government succeeded in getting its EU allies to insist that the talks cannot proceed without concrete guarantees that there will be no hardening of the border. It is very difficult for it now to back down and tell its allies that some minimal border infrastructure may be acceptable in order to protect east-west trade and to avoid a crash Brexit.
The gap may be narrow but it may be deep. It would be tragic to fail to bridge it.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London