As of this moment, it looks as if the UK government has got the EU to agree to move the trade talks forward based on an agreement that there will be no regulatory divergence between at least Northern Ireland and Ireland, meaning that there will be no hard border. Except it is a fudge, of sorts anyhow. The draft text of the agreement runs:
“In the absence of agreed solutions the UK will ensure that there continues to be no divergence from those rules of the internal market and the customs union which, now or in the future, support North South cooperation and the protection of the Good Friday agreement.”
The British government therefore has not specifically said what they will do to ensure that “regulatory alignment” is maintained. They have not said that “NI stays in the Customs Union, but not the rest of the UK, meaning Irish Sea border” or “okay, we’re staying in the Customs Union after all” – just that one way or another there will be “no divergence”. Given May surely had to square this with the cabinet, not to mention the DUP, one wonders what all parties expect to happen in 2019.
This needs to be repeated over and over again given all the smoke and mirrors out there: if the UK wants to avoid a hard border between north and south Ireland, either a special case is made for Northern Ireland and it stays in the Customs Union, or the UK as a whole remains in the Customs Union. That’s it, those are the entire list of options if a hard border is to be avoided. By agreeing to the text above, Theresa May has agreed to do one of those two things – whether she understands that or not.
I can imagine why the Brexiteers went for this. They have already said that they’ll only vote for the final deal if it is one in which we keep all the benefits of the Single Market and the Customs Union while rejecting freedom of movement of people and the jurisdiction of the ECJ – a deal that will never be on offer, in other words. So why not offer the EU and Ireland whatever will keep the show on the road given they’re going to vote against it all anyhow, right? I can imagine the DUP have been given assurances (please tell me she squared this with the DUP already before making the deal) that there will not be a special case for Northern Ireland. Does this mean Theresa May accepts we’ll have to by default remain in the Customs Unions? Of course not. Like everything Brexit related, the can has once again been kicked down the road. Unfortunately for the prime minister, that road doesn’t go on forever.