Self-Binding Back To The Deal

I think the logic in this post and this earlier one has stood up rather well. There were only three possible options – hard border, sea border, and no border. Everyone involved rejected the hard border. The DUP, and quite a few other people, rejected the sea border. That left only no border. The Tory Brexit caucus claimed to have a veto on that. But their leverage was just that they could howl for concessions from the prime minister. Once the EU Commission, the Republic, and the Northern Irish parties were signed up, though, the prime minister was constrained to offer them nothing. Anything she offered them would be vetoed by the others.

Negotiating theory has the interesting conclusion that you can become stronger by getting rid of alternatives. You can’t be argued into giving something up that you can’t in fact give up. This is the logic of a so-called self-binding commitment, and we saw its full force this week. Ultra-Brexiter Michael Gove was the first to crack, going the rounds of the TV and radio studios to argue in favour of the deal. European Research Group (never mind what research it might have done) chairman Steve Baker stepped up to argue for it. The promised resignations haven’t happened. It was the biggest cave since Lascaux.

So, what’s the deal? The key machinery is in paragraph 49, as George Peretz QC points out:

So, the UK guarantees to avoid a hard border. It’s worth thinking in terms of sequencing here, again. In the first instance, this guarantee is to be made good as part of the “overall EU-UK relationship”. To put it another way, the agreement between the EU and the UK should avoid a hard border. This has to be tried first. Failing that, some sort of Ireland-specific solution can be proposed by the British side. Paragraph 50 states that a sea border could happen if the Northern Ireland executive agrees to it, which requires cross-community consent. Failing that, as a last resort “in the absence of agreed solutions”, the UK will “maintain full alignment with those rules of the Single Market and Customs Union which, now or in the future, support North-South cooperation, the all-island economy, and the maintenance of the 1998 agreement”.

“Alignment” was probably the most-discussed point here for the press. Was that the same thing as “no divergence”? The second was probably whether or not there might be a sea border. But the plain meaning of Paragraph 49 is that both of these are second- or third-best options. The primary aim, the first option, is a top-level agreement between the EU and the UK that enshrines no border. The other options are there as fallback guarantees in case the talks break down. And the scope of this commitment is sweeping. Peretz again:

The hard border is defined in paragraph 43 as anything with physical infrastructure, checks, or controls. To put it another way, the only acceptable border is no border. This would be closer integration than either Norway or Switzerland has with the EU. Fascinatingly, these paragraphs do not seem to have been controversial between the British and the European Commission delegations. The Irish Times quoted something very similar to Paragraph 49 as early as Monday.

On the same day, the DUP’s threat to Theresa May said that Northern Ireland staying in the customs union might destabilise their agreement. It said nothing about the whole of the UK doing so. Arlene Foster vetoed:

any suggestion that Northern Ireland, unlike the rest of the UK, will have to mirror European regulations

Again, she said nothing about the whole of the UK doing so. In fact the DUP had not committed itself to the harder Brexit Theresa May introduced at the 2016 Conservative Party conference – ever. It’s hard to imagine how it could ever do so. As the leading Unionist voice in Ireland it needs the Good Friday agreement. As people living in Northern Ireland, they need the peace. As a political party whose constituency is largely farmers, they couldn’t live with a hard border. On the other hand, their overriding existential mission is to veto anything like a border between the UK and Northern Ireland.

A lot of people on the Left seem to have assumed the DUP was vetoing a soft-Brexit agreement, on the basis that they are Tories but more so. A lot of ERG Tories seem to have believed the same thing, on the basis that they were a substitute for Tory or UKIP MPs they hoped would get elected, or maybe because they thought the famous £435,000 donation bought something even though the DUP as such didn’t get any of it. But this misunderstands the DUP fundamentally. It is an Irish party, from Ireland, whose concerns are Irish. Its understanding of Irishness is very different from the Republic’s, but then accepting this is the whole point of the peace. If it acts as a Westminster party it usually does so for ruthlessly transactional reasons, and unlike Theresa May the ERG offered them nothing. Rather than a terrible beauty, a sordid clarity is born.

EU Commissioner Michel Barnier seems to have understood this very well. I was plenty critical of his decision to raise Northern Ireland as an issue early on – it’s important and people can get killed and I didn’t want it fiddling with, and it seemed strange to define the detail of a border before deciding what it was meant to separate. But it worked in that it anchored the vague into the specific, and put the veto actors to the test. Someone else who may have got it was Oliver Robbins, the top civil servant whose group was moved back from DEXEU to the Cabinet Office in the summer and who led the British delegation. And, of course, the Republic’s negotiators got it supremely well. It was no coincidence that the best news source throughout was RTE’s Tony Connolley.

Pulling a Brexit From Your Hat

Following up on this post, what are we to make of today’s news? The UK put forward a proposal to maintain “regulatory alignment”, which is apparently not the same thing as a lack of divergence, “on the island of Ireland”. In the terms of the previous post, this means either option b) – a sea border – or option c) – no border. The whole of the UK maintaining the alignment would, by definition, maintain it on the island of Ireland. So would giving Northern Ireland a special status and creating a sea border.

If it is option b), though, this is intolerable to the DUP, a party that exists to provide absolute certainty that it will veto anything that divides NI from the UK. And that’s exactly what the DUP did, via a 20 minute phone call to the prime minister. So why bother make an offer you know will be rejected? The DUP’s statement last week made it very clear they would veto any hint of a sea border, while saying precisely nothing about a UK-wide arrangement.

The answer may be a question of sequencing. Consider this tweet from BBC political editor Laura Kuenssberg, earlier on when the deal was still a thing:

Indeed. The proposed deal would commit part of the UK to a Norway-like status, leaving the rest of the country’s status open. But any different status for the rest of the UK would now trigger the DUP veto. This sounds a lot like an effort to deal with the multiple veto actors separately. There are quite a few – fortunately, the EU Commission and the Republic (and indeed the nationalist community in NI) are so closely aligned we can think of them as one unit. Then there are the DUP, the hard-Brexit caucus within the Tories, and the anti-Brexit majority in the Commons.

May’s original concession was worded to sound specific to Ireland, and squared veto actor no.1. Had it gone ahead, the next challenge would have been veto actor no.3 – the hard-Brexit caucus within the Tories. After all, veto actor no.1 has been promised either a sea border or no border, and veto actor no.2 will veto a sea border. The only option that is still not vetoed is no border. In this scenario, the boot is on the other foot. The DUP’s veto is now working for the prime minister, as it constitutes a self-binding commitment that constrains her from making concessions to the hard-Brexit MPs. (I see Robert Peston also noticed this.)

In the ultimate test, pushing too hard might cause the DUP to implement its veto by ending its support for the government, and either cause a general election the Conservatives would probably lose or else drive the prime minister back on the support of the anti-Brexit majority of the Commons.

It’s not a bad plan. The problem, though, is that it requires keeping the DUP sweet between the first and the third step in the sequence. A conjurer would see this as a trick with a set-up and a reveal, that needs some prestige or stage business to fill the gap between the two. Getting back to negotiating theory, though, between making the concession to veto actor 1, and confronting veto actor 3, there is a period when veto actor 2 needs reassurance – a costly signal or a side-payment – that the confrontation will actually happen. Also, the hard-Brexit caucus would have every interest in trying to sway them, as beyond this point their position is quite weak.