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Hard Brexit is dead. Long live … hard Brexit

I keep hearing that last Friday’s agreement between the UK and the EU 27 means that a hard Brexit is off the table. Well, I’m looking at the table and I can still a hard Brexit resting atop it. 

The basis for the mistaken belief in the demise of a hard Brexit is paragraph 49 of last week’s accord which includes these words: “In the absence of agreed solutions, the United Kingdom will maintain full alignment with … the Internal Market and the Customs Union”. That sounds pretty devastating to anyone who hopes for Brexit to mean an end to the UK’s participatioin in the single market and the customs union. But these words only have that meaning if they are read hopelessly out of context.

The joint report presages four potential outcomes – at least three of which could be a hard Brexit

For a start, the so-called “agreement” is no such thing. It is a “joint report … on progress”. It says so right there in the heading. In BOLD CAPITAL LETTERS.

Scroll down to paragraph 5 and it says that “nothing is agreed until everything is agreed”.

It is, of course, a political agreement. It will be hard for the UK to get a final deal if it unilaterally backslides on this commitment. But the key word is “unilaterally”. That follows from the opening of the quoted sentence which says: “In the absence of agreed solutions …”. The commitment to full alignment with the single market and the customs union is a commitment only if no other solution is found.

There is also the possibility that there may be no final deal. If that happens, this progress report has no standing at all. Not even politically. There is no suggestion that paragraph 49 endures even if a UK-EU deal fails to materialise. We can see that by reading the full paragraph – including the sentences which immeaditely precede the passage quoted above and the words which come after. The full paragraph says:

“The United Kingdom remains committed to protecting North-South cooperation [in the island of Ireland] and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention 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 the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”

In short, the joint report presages four potential outcomes, at least three of which could be a hard Brexit:

  1. An overall agreement between the UK and the EU which makes a hard border between Northern Ireland and Ireland unnecessary. This is the bespoke free trade agreement, outside of the single market and the customs union, which the UK government has always set out as its objective.
  2. If outcome 1 cannot be achieved, the UK will look for Ireland-specific solutions that rule out the need for a hard border. This too would be a bespoke agreement, but not EU-wide and, by defintion, outside of the single market and the customs union.
  3. If neither outcome 1 nor outcome 2 can be achieved, the UK will fall back onto full alignment with those rules of the single market and the customs union which are necessary to support North-South cooperation etc. This still doesn’t imply staying in – or “full alignement” with – the single market and customs union … only those rules which are necessary for a soft border with Ireland.
  4. If the final negotiations fail, there will be no agreement, at all. The hardest of all hard Brexits.
See also:  What equal pay teaches us about the Human Rights Act

As an aside, if the UK does end up leaving the EU with no deal, it is highly unlikely that the Westminster government would put up a hard border. If the EU doesn’t like having an open land border with a non-EU country (as the UK will then be), it would be they who put up the border, not the UK. And that won’t happen, because Ireland won’t agree to it.

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