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:
4. So when you get to 49, you see the force of the commitment to N-S cooperation (which the U.K. accepts depends on a *lot* of EU law). pic.twitter.com/dVxorh8Y62
— George Peretz QC (@GeorgePeretzQC) December 8, 2017
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:
2. Start with para 43. This defines a hard border. No physical infrastructure or related checks. So not, even, ??/ ?? or ??/ ??. pic.twitter.com/CXJeSFSHCS
— George Peretz QC (@GeorgePeretzQC) December 8, 2017
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.