Richard North, 11/12/2017  

With excruciating slowness, the media is gradually getting the message – the "bad Friday" agreement is a crock – a phony deal. In the lead is Tony Connolly of the Irish broadcaster RTÉ, perhaps the only journalist around making a serious attempt to understand the vital technical issues.

And it is on the technical issues that Mrs May's "deal" hangs or falls – phrases like "full alignment", one which happens to form one of the crucial elements. And it was on this which Andrew Marr questioned Brexit Secretary David Davis on his chat show yesterday.

Trying to pin Davis down, of course, is something of an art form. In response to the direct question, "What does full alignment mean?", the Brexit Secretary digressed somewhat by referring to an exchange moments earlier about "no divergence".

This, he explained, "would have meant actually taking cut and paste rules" – effectively the harmonisation which is required for participation in the Single Market and anything approaching a "frictionless" border between the UK and EU Member States.

Before then moving on to answer the question, Davis kindly told us that "full alignment" only applied to "about four" important areas, "agriculture, road and rail", to which Marr added "health, tourism, transport".

Thus did he confirm the Irish times piece from Friday, which declared: "UK qualifies implications of 'full alignment' Brexit pledge", retailing an affirmation from the Mrs May's government that "we are leaving the customs union and the single market in March 2019".

Actually, the Irish Times had six heads: transport, agriculture, education, health, environment and tourism, of which "environment" – in EU terms, is a pretty hefty thing for Davis to leave out. But, nevertheless, the point stands that the UK has no intention of addressing anything like the full Single Market acquis, omitting such interesting things like car manufacture, chemicals and pharmaceuticals – to say nothing of aviation.

Even within the sectors covered, however, the application is limited. When Marr asked "in very, very simple terms", whether the EU's carrots and our carrots "will be broadly speaking the same carrots", Davis responded with "not necessarily".

The regulations, Davis said, "will be very similar" but the key parameter is "outcomes". As the Prime Minister had laid out in her Florence speech, "there are areas where we will want similar outcomes and we'll have similar methods to achieve them". Thus, said Davis, "we will meet the outcomes, we'll meet the outcomes but not do it by just copying or doing what the European Union does".

Expanding on this, Davis then asserted "there will be areas where we'll have similar outcomes, we'll have different methods to achieve them, that’s going to be true of a lot of product areas, a lot of manufacturing and so on and there will be areas where we want different outcomes and will use different methods".

As to maintaining EU regulations, "That's not what we're going to do", he declared, with a degree of finality. "We're going to bring back control. That's the phrase used and the House of Commons will decide".

As for the deal overall, to detach us further from the idea that Mrs May's government was taking things seriously, Davis blandly informed Marr that the deal "was a statement of intent more than anything else. It was much more a statement of intent than it was a legally enforceable thing".

And thereby, did he confirm precisely what I had said in my Saturday, "nothing bankable" blogpost. There are no commitments here, and there is no intent to maintain the Single Market acquis.

On this basis, the "guarantee of avoiding a hard border" is not a guarantee at all. It is a statement of intent and, without that necessary commitment to the Single Market, is undeliverable. As I noted earlier, in order to avoid a "hard border", Northern Ireland itself must adopt the full Single Market, etc., acquis - as must the UK unless there is a "wet" border in the Irish Sea.

Since Mr Davis is candidly admitting that these conditions are not going to be met, neither the Council nor the European Parliament can approve any arrangements that allows for frictionless trading. A "hard border", on the basis of what the Brexit Secretary has told Marr is a certainty.

If it wasn't the Marr Show that spilled the beans, though, there is always the Sunday Telegraph (no paywall), which retailed a claims that Theresa May's aides told Foreign Secretary Johnson and Michael Gove that "the key concession used to seal Friday's deal with Europe" – i.e., "full alignment" - was "meaningless" and "not binding". It did not, they were told, "mean anything in EU law".

Despite, therefore, Davis asserting that "the odds, as it were, against a WTO or no deal outcome have dropped dramatically", it seems more likely that we have drastically increased the likelihood of the talks collapsing, with an accidental "hard Brexit" the necessary consequence.

It cannot be the case that the negotiations can run their course, only for it to be discovered that the prospects for an invisible border have evaporated, and that there will be no political consequences. One can expect a rebellion in the Commons, with a very real possibility that the May government falls.

However, there are developments afoot which could conspire to make this the least of Mrs May's problems. Courtesy of, we have had early sight of the negotiating guidelines which Donald Tusk intends to put to the European Council on Friday.

What will immediately create waves is that their scope is "disappointingly narrow", dealing only with the transitional arrangements. On the future trade deal, the guidelines note:
While an agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country, the Union will be ready to engage in preliminary and preparatory discussions with the aim of identifying an overall understanding of the framework for the future relationship. Such an understanding, which will require additional European Council guidelines, should be elaborated in a political declaration accompanying the Withdrawal Agreement.
This kills stone dead any idea that we will see any form of trade agreement in place by the time we leave, leaving the UK entirely reliant on reaching an agreement on transitional arrangements to tide us over, while a trade deal is negotiated. But here – although entirely expected – the terms offered are seriously bad news. The guidelines state:
As regards transition, the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions.
They go on:
Such transitional arrangements, which will be part of the Withdrawal Agreement, must be in the interest of the Union, clearly defined and limited in time. In order to ensure a level playing field based on the same rules applying throughout the Single Market, changes to the acquis adopted by EU institutions and bodies will have to apply both in the United Kingdom and the EU. All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply. As the United Kingdom will remain a member of the Customs Union and the Single Market (with all four freedoms) during the transition, it will have to continue to apply and collect EU customs tariffs and ensure all EU checks are being performed on the border vis-à-vis other third countries.
What the EU is demanding is that the UK remains effectively a full member of the EU as regard the obligations, subordinate to the ECJ and Commission rulings, but without any representation in the European Council, the Council of Ministers or the European Parliament – and with no UK Commissioner. And, since the "budgetary instruments" still apply, we'll still be paying the full UK contribution.

By any measure, this is the worst of all possible worlds, the full application of "pay – no say" which the Efta/EEA option was supposed to saddle us with, in one of those falsehoods that dominated the referendum campaign.

But, having ruled out that option – where we would have had significant input in the creation of new law, and would be paying only a fraction of the contributions – and then not into the EU budget – Mrs May is confronted with the idea that we have to obey all the 20,000 laws of the acquis, and not just the 5,000 or so of the EEA acquis, most of which are technical standards which we would implement anyway.

The effect of these arrangements would, without doubt, serve to delay our withdrawal from the EU by a further two. The crisis on the border would be deferred, and trade with the EU could continue, but at the price of a Brexit in name only.

This completely negates Mrs May's pledge that "we are leaving the customs union and the single market in March 2019", and makes a mockery of any aspirations of being an independent nation, moving the timeline to March 2021 – nearly five years since the referendum.

It seems inconceivable that Mrs May or her Cabinet could find this acceptable and the Tory "Ultras" could not conceivably accept these terms at all. This is a recipe for civil war within the Tories, with the odds very high for the UK falling out of the EU in an accidental Brexit, effectively the hard Brexit by default.

On a technical note, I don't see how the transitional arrangements can be part of the Withdrawal Agreement. Under Art 50, once the Withdrawal Agreement takes effect, the treaties cease to apply to the UK. To make them re-apply needs a new treaty. That, as a detail, may come to the fore, adding further to the complications.

That apart, by the end of next week, we can see Mrs May's famous "breakthrough" being ripped apart. The drama of last Friday will be long forgotten as we are precipitated into the mother of all crises, spelling the end of Mrs May's inglorious attempts to engineer a rational Brexit.

At the very least, her stupidity in rejecting the Efta/EEA option has confronted us with a situation far, far worse, while prolonging the Brexit agony for another two years. And when those two years are over, all the problems attendant on the UK becoming a third country will re-emerge.

For the moment though, we have the bizarre situation where the Irish media are providing better coverage of the issues that the UK equivalents, with the Irish Times telling us that EU Brexit negotiators have expressed doubts about the feasibility of the UK's pledge to avoid a hard Border in Ireland after Brexit.

European Commission officials, we are told, are saying the UK's determination to leave the single market and the customs union "seems hard to reconcile" with its promise to avoid a hard Border in Ireland. 

That may well go down as the understatement of the century, but it does give some hint of the storm to come as the "bad Friday agreement" begins to unravel. Then, as Mr Blair never said, things can only get worse.

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