Richard North, 23/10/2018  

As expected, Mrs May was on her feet in the Commons yesterday to tell the House that 95 percent of the withdrawal agreement and its protocols were now settled. And, to absolutely no one's surprise, she then went to deliver what The Times calls a "snub" to Brussels, rejecting a backstop on the lines set out by Union negotiators. 

Nevertheless, she did concede that the one real sticking point left, a "considerable one", was how we guaranteed that, in the unlikely event that our future relationship was not in place by the end of what she insists on calling the "implementation period", there is no return to a hard border between Northern Ireland and Ireland.

But rather than address the EU's protocol, she dismissed the Brussels proposals altogether and substituted her own. To that effect, she told the House, there were four steps we needed to take.

The first of these was to make the commitment to a temporary UK-EU joint customs territory legally binding. That, she said, would mean that a Northern Ireland-only proposal would no longer be needed, protecting not only north-south but east-west.

For her second step, Mrs May wanted to create an option to extend the implementation/transition period as an alternative to the backstop. She had, however, not committed to extending the period and did not want to extend it. Nor did she believe it was necessary, the best outcome being an agreement on our future relationship settled and in place by 1 January 2021.

Thirdly, should there be a need for an insurance policy, whether the backstop or a short extension to the implementation period, this should not be indefinite. We would not, said Mrs May, accept a position where the UK finds itself locked into an alternative inferior arrangement against its will.

Finally, the Government had to ensure full continued access for Northern Ireland's businesses to the whole of the UK internal market.

And, with that, at least we have statements from the horse's mouth, setting out the UK position and – to an extent – illustrating why we still have a problem. While the EU wants a backstop permanently in place, Mrs May will accept one for only as long as it takes to get a trade agreement in place, and then as long as it doesn't actually come into force.

From the EU perspective though, the problems are easy to identify. On the one hand, without the backstop in place, there can only be "frictionless" trade across the Irish land border if there is regulatory alignment across the whole of the UK, together with adoption of the rest of the regulatory ecosystem.

This, in itself, has already been ruled out by Mrs May which means that anything less by way of a trade agreement (such as Canada-plus) would mean that the EU was giving Single Market privileges to the UK, via preferential access to Member State markets as long as goods were routed via Northern Ireland.

Furthermore, if the EU and the UK were to agree a satisfactory trade arrangement but, sometime in the future the UK unilaterally changed the terms of the agreement, the EU would need to call in the backstop, to prevent the land border turning into a back door entry to Member State markets.

Still, therefore, we seem to have a situation where our prime minister does not understand how the Single Market works, or even how the application of WTO non-discrimination rules limits the actions which can be taken by the EU.

The core issue is, itself, not that hard to understand. Any goods allowed across the border from Northern Ireland into the Republic do not have to stop there. Once they have entered the Single Market area, they are allowed freely to circulate anywhere in the Union.

That, of course, is what the European Union has to protect. It cannot possibly allow goods to pass freely across the Irish border unless it is certain they conform fully with Single Market rules. Therefore, it follows that regulatory alignment must be maintained on both sides of the border. And it also means that any goods coming into Northern Ireland must also conform with those rules.

On that basis, the EU has two options: it must either insist that Northern Ireland complies with Single Market rules and that access to its market is limited to products which also comply with the rules. Or, if there are to be no barriers between Northern Ireland and the rest of the UK, then the rest of the UK must also comply with Single Market rules.

It really doesn't matter how many statements Mrs May makes to the Commons, or how many cunning plans she devises, those are the unalterable facts. And if the EU even thought about making concessions which breached its own fundamental rules, it would have to make the same concessions to all its other third country trading partners in order to confirm with WTO rules. The Single Market would be in tatters.

And this is why, right from the very start, the so-called "Irish question" has been such an important issue. It is not so much that it is insoluble but that Mrs May has already ruled out the only two solutions possible. On the one hand, she has excluded the UK from continued participation in the Single Market. On the other, she will not allow border controls on goods coming from the mainland UK into Northern Ireland.

Looking thus at her first proposed step, making the commitment to a temporary UK-EU joint customs territory legally binding is neither here nor there. Interestingly, she uses the term " UK-EU joint customs territory" – not the "customs union", to which so many newspapers refer. This could also be deemed to take in Single Market provisions, but the problem is that it is temporary.

The issue here is that if the UK changes the rules in the future, and diverges from Single Market rules, then the EU would have no option but to demand that the Irish Republic should impose border controls to protect the Single Market. To avoid that, and joint customs territory arrangement must be set up so as to last in perpetuity.

As to extending the implementation/transition period, this can never be an alternative to the backstop. The backstop has to be there in order that it can take effect in the event that the UK diverges from the Single Market rules, now and in the future.

Here, there is an important consideration. The Single Market is a dynamic system – one that is continuously changing. Therefore, in order to prevent divergence, the UK must not only refrain from changing existing trade laws in a way that they no longer conform with EU rules, it must also update its laws when the EU changes its rules, so that parity is maintained.

That, of course, also rules out Mrs May's third step. Her insistence that the backstop should not be indefinite cannot be accepted, unless the UK commits to dynamic parity with Single Market rules for all time – or accepts that divergence will mean a hard border in Ireland.

As for the final step, there is no problem, as far as the EU is concerned, in Northern Ireland's businesses having access to the whole of the UK internal market. The problem is the other way around, with mainland UK businesses having unrestricted access to Northern Ireland and then, via the Irish border, access to the whole of the Single Market area.

But, like a pre-school child learning how to put shapes into the right holes, Mrs May seems to have acute problems learning the basics. When it comes to the fundamentals of the Single Market, she just doesn't get it.

And nor, it seems, is Jeremy Corbyn any better. In his response to the prime minister's statement yesterday, he chuntered on about the "simple solution" being a "comprehensive customs union with the EU". This man hasn't got out of the primary school equivalent when it comes to understanding the EU.

But therein lies the essential flaw in the entire Brexit process. We have a group of politicians in high places who are simply not up to the task of managing our exit from the EU. Worse still, they seem handicapped by severe learning difficulties which prevent them from remedying their own ignorance.

But if it was just senior politicians who were the problem, there might just have been a way round the current impasse. Pressure from backbenchers, the media and other groups such as academia, might have forced the pace. But nowhere do we see adult-level comprehension of the issues.

Failing adequately (or at all) to understand what is involved, it is no surprise that Mrs May is unable to craft a credible response to the EU's demands. Instead, yesterday she launched four steps which can do nothing more than bring us closer to a "no deal" scenario.

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