Progress was made last week in relation to the preparation for Brexit and, in particular, the unique and special circumstances of Northern Ireland. A careful and considered reading of “Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union ” is in order.
Clearly, the agreement of 8th December serves the purpose of moving talks on to the next phase. However, before anyone rushes to read articles 42 to 56 concerning ‘Ireland and Northern Ireland’ one ought not to miss three fundamental matters raised at the very beginning of this document:
‘Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full detail. This does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship.’
Let’s be clear, no matter what particular points different stakeholders may wish to take from this document it is a case that ‘nothing is agreed until everything is agreed’ and nothing in the document can ‘prejudge’ developments and the agreement is ‘without prejudice’ to further discussions and negotiations.
So, what has been agreed? A number of important aspirations have been settled:
There will be no ‘hard border including any physical infrastructure or related checks and controls’ (paragraph 43).
The principles contained in the 1998 Agreement are maintained and Northern Ireland remains ‘an integral part of the United Kingdom’. (paragraph 44).
The integrity of the internal UK market and Northern Ireland’s place within it is accepted ‘as the United Kingdom leaves the European Union's Internal Market and the Customs Union.’ (paragraph 45).
‘In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.’ (paragraph 49)
‘In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.’ (article 50)
The document goes on to add a crucial point as follows: ‘In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.’
That is what was agreed. The next bit is much harder: what does any of this mean and what will it mean in 12 months time?
While all concerned are to be commended on the achievement of agreement that keeps certain matters open and gives assurances on other matters ‘without prejudice’ to further discussions, nothing has been resolved until everything is resolved.
One way of describing this is to use the metaphor of a couple (read EU and UK) who have agreed to divorce while the lawyers draw up letters headed ‘without prejudice’ concerning various matters. In the meantime, the couple continue to live under the same roof, with the same house rules and with full joint access and custody of the children pending an agreement. This makes sure that the business of life continues.
There is one problem with all of this. The notion that the UK, including Northern Ireland, can exit the EU Customs Union and the Single Market as clearly indicated in paragraph 45 while avoiding a border of some significance (paragraph 43 and 49 and 50 whether on land or sea) poses a logical conundrum that undreamt of technology has yet to solve. if the phrase 'full alignment with those rules...' means anything it means - de facto - continuing membership of the single market and the customs union. if it means something else and if it is confined to particular matters concerning the 1998 Agreement as paragraph 49 clearly implies, then this needs to be spelt out.
The conclusion is that all of this does not add up....
Which is not to say that what was agreed was the most to be hoped for to save everyone’s face by means of creative and skilful ambiguity. Sometimes, in life, ambiguity is unavoidable for the sake of moving things forward. in other cases, it is impossible when it comes to the division of assets and alignment of rules which is what trade agreements, divorces and similar things are all about.
Make no mistake, exiting a customs union and a single market - if that is what the UK will end up doing some time in the future - is not compatible with open borders.