Who is fudging? (Answer: not the EU.)

There has been a lot of talk since yesterday’s deal pointing out that there has been a certain amount of fudging going on. But there is fudge and fudge, and it’s helpful to be clear about what’s being fudged and by whom.

Paragraph 49 states:

“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s objective is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and Customs Union which, now or in the future, support North-South cooperation, the all-island economy, and the protection of the 1998 Agreement.”

These are commitments made by the UK to the EU and there is very little fudge here. The UK is committing as a backstop solution to the full alignment needed to “support North-South cooperation, the all-island economy, and the protection of the 1998 Agreement” in the context of an over-arching commitment to avoid a hard border. Avoiding a hard border requires full alignment for all traded goods. North-South cooperation involves the famous 142 areas of North-South cooperation we have been hearing about, and brings services like health into the mix. The all-island economy is even broader. And the Good Friday Agreement brings things like human rights into the mix.

Paragraph 50 states that:

“In the absence of agreed solutions, as set out in the previous paragraph , the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

Notice anything? These are not commitments made by the EU. These are, once again, commitments made by the UK, in this instance to the DUP.

Paragraphs 49+50 appear to be a bit of a fudge, although the fudge can be undone by the entire UK maintaining full alignment with the EU. But let’s be clear: this is the UK fudging, not the EU, and the UK needs to fudge at this stage because of the internal contradictions of its own position. But the EU will naturally take the view that the UK must meet its commitments made to the EU in Paragraph 49. There is no fudge here: the EU has sought and obtained an impressive series of concessions from the UK, and the UK will be held to its word.

Note also that Paragraph 45 states that:

“The United Kingdom respects Ireland’s ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland’s place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland’s place within it, as the United Kingdom leaves the European Union’s Internal Market and Customs Union.”

These are again UK commitments, and the first of these is in the present context a commitment to respect the fact that the EU needs to police the external frontiers of its Internal Market and Customs Union. So the turning-a-blind-eye-to-smuggling non-solution is out.

And finally, note that Paragraph 46 states that:

“The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.”

The first sentence rules out the Brexiteers’ Baldrick-like cunning plan to use whatever special arrangements may be reached on the island of Ireland as precedents, allowing them to have their cake and eat it when it comes to the economic relationship between Great Britain and the European Union. And the second sentence commits the UK to uphold its engagements on Ireland in all circumstances.

As I say, it doesn’t seem to me as though the EU allowed much fudging when it came to the UK’s commitments to the EU regarding Ireland.

How Her Majesty’s Government simultaneously manages to meet its Paragraph 49 obligations to the EU, and its Paragraph 50 obligations to the DUP, taking account of inter alia Paragraphs 45 and 46, is something it will have to figure out. The UK government clearly ought to fulfil its commitments to the DUP, but whether it does so or not is hardly a primary concern of the EU. Paragraph 49 is what the EU will care about, not Paragraph 50. (Although Ireland would be very happy if the UK met both obligations in the only way that seems possible, namely by effectively staying in a Single Market and Customs Union type of arrangement with the EU.) If the UK wants to leave the EU in a civilised and amical manner, and strike a trade deal with the EU in the future, it will have to uphold the very clear commitments it has made to the EU. How the British deal with British fudge — whether Mrs May betrays the DUP, or abandons her previous red lines regarding membership of a customs union and the Single Market —  is a matter for them. But sooner or later they are going to be forced to confront and deal with the internal contradictions of their position.

22 thoughts on “Who is fudging? (Answer: not the EU.)”

  1. I listened to the ‘Sky News paper review’ the evening before the deal was agreed. I heard the Sun’s chief political hack, to laughter and agreement from the token lefty reviewer, dismiss the whole concept of phrases like “full regulatory alignment” as “meaningless” & a good thing because they mean all things to all people and in a couple of weeks we will have all moved on. In the world of political spin you create your own reality.

    I suspect what is going on here is that if the NI unionists are not going to be sold down the river in East-West terms, then the hard Brexiteers and their media cheerleaders either don’t understand, or are trying to save face. Probably a bit of both. Johnson was straight out of the blocks trying to pitch it as consistent with taking back control of money borders and laws.

    There has been a palpable weakening of support for and authority of the ‘just walk away’ crowd over the last three months or so.

    The cabinet meets early next week to try to agree on the very basics of what sort of trading relationship Brexit should aim for. Beyond parody at this point. If Johnson, Gove and their supporters insist of continuing to oppose aiming for a soft exit which essentially retains much of the internal market / customs union requirements, then either the rest of the cabinet rolls them over, or the potential inconsistencies in the commitments to North-South, East-West continuity set up a confrontation with the DUP. So far Rees Mogg, IDS and Redwood seem to have been cut adrift. Gove Johnson, Patel etc will have to decide which way to jump.

    I note the determination in the post-deal reactions to avoid the use of the words “no tariffs”. The use of terms like “alignment” are much easier to spin as ”meaningless’ to a tabloid readership.

    The coefficient of East-West friction remains highly significant for Ireland. It may be a British fudge but Ireland may still get stuck in it.

  2. That, unfortunately, is not the case. The members of the EU can do a lot of things but breach their own legal treaty obligations is not one of them. Once the NI border becomes an external border of the EU, it must be administered as such. Article 4.3 TEU sets out the principle of “sincere cooperation” which binds all member states, including Ireland, to play its part in ensuring that this happens.
    In effect, there are only three plausible scenarios (i) there is an overall agreement with the UK mirroring membership of the internal market and the CU (and, as Barnier has made clear, participation in both is required if border checks are to be avoided) i.e. problem solved (ii) there is a limited agreement on both, necessitating some fairly light checking formalities, which can almost certainly be effected at the natural choke points of ports and airports for ALL inter-island/Continent movements, by sector i.e. matching the individual solution to the individual problem (iii) there is no agreement and the deal now concluded kicks in relation to NI.
    In the last mentioned case, Ireland will still be bound, as throughout the process, to implement its obligations as an EU member. The UK will not be in ANY of the scenarios post-Brexit, except in terms of the obligations it accepts during the transition period.
    The game is far from over. The EU26 will not accept NI becoming a backdoor point of entry to their markets. They saw, correctly, the NI border as the soft underbelly of the UK substantive negotiating position. The heated debate and negotiations have alerted the entire UK electorate to the fundamental schism between Tory realists and “globalists”, for want of a better term. Again, as Barnier has now indicated, clarity on where exactly the UK wants the end-up is a sine qua non and the EU26 are now camped on that negotiating position.
    A telling indicator of their assessment of the outcome are reports that during the transition period the UK would be free to try and negotiate trade agreements. In short, they are happy to see the Tory hardliners call their own bluff. Current attempts to portray May as some kind of late developed Machiavellian genius are laughable.

  3. I should add, before someone points it out, that scenario (ii) would not be acceptable to the DUP. I am not so sure. If handled a bit more deftly, and suitably camouflaged as part of standard movement checking procedures throughout the UK, they would not have a leg to stand on; and no support in NI.

  4. It may also be useful to recall what May said in her Florence speech in seeking to understand what appears to many to be incomprehensible in the UK position. The two central problems are (i) she does not speak for a united “British people” and (ii) her soft words about the UK wishing to see the EU succeed are simply not believed by her negotiating opponents. Nevertheless, she is describing a reality that cannot be circumvented. A large section of the UK electorate – mainly English – wants OUT of the – largely imagined – constraints of “pooling sovereignty”. And there will be no return to normality in the UK until it happens.

    The decision of the British people

    And we will do all this as a sovereign nation in which the British people are in control.

    Their decision to leave the institution of the European Union was an expression of that desire – a statement about how they want their democracy to work.

    They want more direct control of decisions that affect their daily lives; and that means those decisions being made in Britain by people directly accountable to them.

    The strength of feeling that the British people have about this need for control and the direct accountability of their politicians is one reason why, throughout its membership, the United Kingdom has never totally felt at home being in the European Union.

    And perhaps because of our history and geography, the European Union never felt to us like an integral part of our national story in the way it does to so many elsewhere in Europe.

    It is a matter of choices. The profound pooling of sovereignty that is a crucial feature of the European Union permits unprecedentedly deep cooperation, which brings benefits.

    But it also means that when countries are in the minority they must sometimes accept decisions they do not want, even affecting domestic matters with no market implications beyond their borders. And when such decisions are taken, they can be very hard to change.

    So the British electorate made a choice. They chose the power of domestic democratic control over pooling that control, strengthening the role of the UK Parliament and the devolved Scottish Parliament, Welsh and Northern Ireland Assemblies in deciding our laws.

    That is our choice. It does not mean we are no longer a proud member of the family of European nations. And it does not mean we are turning our back on Europe; or worse that we do not wish the EU to succeed. The success of the EU is profoundly in our national interest and that of the wider world.

  5. No fudge from the EU ?
    It initially refused to move on to trade talks until the subjects of EU citizens,the divorce bill and the Irish border had been agreed. This was then fudged to “until sufficient progress had been made”.
    There hasn’t really been any real progress at all except a few hazy declarations of intent and the UK’s original position – that there would be no hard border – hasn’t changed at all.
    But the EU has agreed to move on to Stage 2 and with it Ireland’s influence in the negotiations has waned.
    Theresa May and David Davies deserve considerable credit for coming up with a formula that allows everyone involved,with the exception of Sinn Fein,to save face,
    They also forced the EU to concede on the divorce bill with a respectable £35-39billion including normal contributions for the transition period and for the remainder to be paid over many years a huge climbdown by Brussels.
    And they’ve negotiated the ECJ into having little more than an advisory role in the UK for a limited period of time.
    This idea that the UK is largely toothless in its negotiations with the EU is fanciful.

    1. I had occasion to write this on another blog recently.
      To quote President Tusk; We all know that breaking up is hard. But breaking up and building a new relationship is much harder.
      Why any country would break up a relationship, and pay the unavoidable associated costs, to negotiate a less favourable arrangement, also with unavoidable associated costs, is a mystery that historians will dwell on for years to come.
      I posted the extract from May’s speech above as a major element of the explanation.

      1. There’s no mystery. Your quotation from PM May’s speech in Florence boils down to “We didn’t vote them in; and we can’t vote ’em out” and generally refers to EU functionaries such as J-C Juncker and Donald Tusk (both rejected, resp., directly and indirectly as PMs by a majority of their voters). Follow that with Margaret Thatcher’s observation that “Most of the worst problems the world has faced have come from mainland Europe”. And end with Churchill’s vehement preference for the open seas when confronted with a choice between these open seas and a mainland Europe ruled by the likes of de Gaulle.

        It is both tragic and paradoxical that the institutions developed in Europe have finally become a force generally, but not always, for good, and that not enough British voters are either not prepared to accept this and or have been seriously misled by their media and politicians.

      2. Why any country would break up a relationship, and pay the unavoidable associated costs, to negotiate a less favourable arrangement, also with unavoidable associated costs, is a mystery that historians will dwell on for years to come.”

        Unavoidable costs? Its not all about money – politics matters too. The EU is proving to be a serious problem – especially with respect to the free movement of EU citizens and the flow of refugees from east and south. These parallel issues will cause grave economic and political problems other than in those EU countries whose citizens are leaking toward the west and who baulk at taking any refugees. I think the UK politicians are aware of these problematic issues and are seeking to stop the migrations – or at worst, reduce them to quite small numbers.

        We have not heard the end of this matter.

        1. @Brian Woods Snr
          ” We have not heard the end of this matter ”
          You are quite correct and not just about the UK but here in Ireland too.
          Far more non-national immigrants than Irish people arrive into Ireland every year – around 57,000 last year or a city the size of Waterford.
          Apart from cultural changes there’s no doubt that with a net inward migration figure of 20,000 last year the impact on housing,education and the health service is already being felt.
          With it will come added social friction.A friend of mine who is passionately against the idea of Brexit and with whom I have many spirited discussions sidled up to me in the pub the other day and said,sotto voce,” I think you may have a point.My grand-daughter cannot get into a school 300 yards away from her front door and has to travel five miles away to another one because there is a waiting list and I happen to know that at least half the children in front of her on that list have only arrived in Ireland in the last couple of years.How can this be right ? ”
          Unless increased immigration is met with commensurate levels of investment in social infrastructure the mood in Ireland will change very quickly.

  6. The Guardian reports today: “Theresa May’s hopes of securing a unique post-Brexit trade deal with the EU were under threat on Saturday night as Brussels said it was coming under international pressure to deny Britain special treatment.”

    https://www.theguardian.com/politics/2017/dec/09/global-powers-lobby-to-stop-special-brexit-deal-for-uk

    It will take more than 12 months to agree a deal while multinational companies depending on UK component/ sub -assembly supplies to global supply chains may well reorganise their chains.

    China’s main UK imports are cars produced by foreign-owned firms and gold mined and refined outside the UK!

  7. With regard to ‘not understanding or trying to save face’ above, its probably worth noting for the record the spectacularly lamentable performance of the Secretary of State for Exiting the European Union, among others, since the agreement was reached.

    From the Guardian:

    “David Davis has scrambled to salvage relations with Brussels after he was accused of damaging trust in the Brexit talks by making inflammatory comments over the status of Britain’s promises.

    The Brexit secretary engaged in urgent telephone diplomacy on Tuesday in an attempt to persuade Guy Verhofstadt, the European parliament’s Brexit coordinator, that the UK government’s word could be depended upon.

    Brussels has been deeply irritated by Davis’s claim over the weekend that the UK’s concessions in an agreement struck last week with the EU to move talks on were merely a statement of intent without legal backing.

    In an unusual move, the European parliament’s main parties announced on Tuesday morning that they had drawn up an amendment on their Brexit resolution, on which MEPs will vote on Wednesday, personally condemning the Brexit secretary for damaging trust.

    Verhofstadt, a former Belgian prime minister, further claimed in a press conference in Strasbourg that the Brexit secretary’s comments were “unacceptable” and would provoke a wider hardening of the EU’s positions, including in the member states’ guidelines for the future relationship, to be signed off by leaders on Friday.”

    Used Jaguars spring to mind for some reason.

    1. Just two observations from your post.

      1. You quote The Guardian which apart from the FT is the most pathologically anti-Brexit British newspaper.
      2. Guy Verhofstadt is the most pathologically anti-Brexit European official involved in current negotiations.

      I would take both of these with a very large pinch of salt.
      The European Commission noted “Formally speaking the Joint Report is not legally binding because it is not yet the Article 50 Withdrawal Agreement, but we see the joint report of Michel Barnier and David Davis as a deal between gentlemen.”
      What Davis was saying and subsequently clarified on LBC ( and of course not reported by The Guardian ) is that all sides in the joint report were in complete agreement.
      I know you’re desperate for the UK to fail in these negotiations but wishful thinking won’t make it happen.
      Even those fierce Tory anti-Brexiteer MPs Ken Clarke and Anna Soubry are happy with progress so far.
      David Davis is playing a blinder.

      1. If I wanted the UK to fail in its negotiations I would be defending delusion, sub-optimal strategy and personnel. I would be quietly satisfied that Davis had ham-fistedly drawn worldwide attention to potential slight wiggle-room which might have proved useful if employed at the right moment in negotiations rather than immediately blurted out for internal Tory party purposes.

        You are right about the stance of the Guardian, but it really doesn’t matter in this case.

        1. You say world-wide attention.
          I doubt whether the world cares much about the nuances of what said what to whom but it will be aware of the headline – that agreement has been reached on time to progress to the next stage of negotiations.
          David Davis and his team have achieved a considerable amount – most notably negotiating a 2-year transition deal,a much-reduced divorce bill and agreement on citizen’s rights with a limited amount of ECJ advisory influence for just eight years as well as a sufficiently woolly deal on the Irish border to keep Dublin and the DUP on board for the moment.
          They’ve done all this while also keeping the extremes of the Tory party reasonably content.
          You may think this a lamentable performance but I suspect anything short of Davis lying prostrate at the feet of Barnier,Juncker and Tusk and shouting ” do you worst to me ” wouldn’t make you happy.
          Personally I’m confident that a good trade deal will eventually be done and the UK will prosper beyond the initial turmoil of Brexit although I’m in no doubt it will be a difficult negotiation.
          The EU has signalled in the last week that it too wants a deal.
          If the opinion polls – them dang opinion polls – are anything to go by so do a majority of Brits.
          We shall see.

          1. They are realising very belatedly that the time limited Article 50 process, and lack of Brexit domino effect puts them in a weak position absent real willingness (among the public) to walk away. Brexit is going more sensible & softer – which is what a lot of leave voters thought they were voting for anyway.

            Its like a British version of “Labour’s way or Frankfurt’s way” or “Not another Red Cent”.

          2. “David Davis and his team have achieved a considerable amount – most notably negotiating a 2-year transition deal,a much-reduced divorce bill and agreement on citizen’s rights with a limited amount of ECJ advisory influence for just eight years as well as a sufficiently woolly deal on the Irish border to keep Dublin and the DUP on board for the moment.”

            I missed the bit about DD having negotiated a “2-year transition deal”. If he had, one would imagine that he would not be saying that it is not legally binding.

            The reality is that nobody on the EU27 side any longer take anything he says at face value and their trust in his PM is not much higher.

    2. Davis tweeted: “Pleasure, as ever, to speak to my friend [Guy Verhofstadt] we both agreed on the importance of the joint report. Let’s work together to get it converted into legal text as soon as possible.”

      1. Indeed.
        One of my favourite tweets of today was:
        ” How Brexit works: DD says something true if indelicate for affect (Friday’s deal not legally binding until exit treaty signed). Commission confirms but voices displeasure. MEPs react angrily for affect & declare EU will now do something already agreed (put deal in exit treaty) ”
        And of course there will be much more of this nonsense in the month’s to come.

  8. Rightttttt. I’m minded of the characteristic behaviour of Tomcats (pi**ing at their corners) as they display their oderiferous charms and mark-out their territorial claims. Whose impressed by these guys?

    Would someone like to enlighten me as to why the EU, being in such good economic shape (its actually in a poor political space and headed down) that the prospect of the UK doing a runner is such a really bad idea. Would such a departure result in the average GDP of both regions to increase simultaneously – and at the same time?

    You may wake me up when the nett flow of economic immigrants and impoverished refugees is from west to east. That is, our plumbers, carpenters and other trades folk are heading out from IRL and UK to seek their collective fortunes in Poland, Czecko, Hungary, Romania, Bulgaria, etc. etc.

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