Britain is pretending to accept the EU’S terms. But the fudge can’t last

The Brexit agreement means different things to the two sides – and will lead to an almighty row

There’s an old Indian parable about a group of blind men encountering an elephant for the first time. One of them gets ahold of the ear and declares the elephant to be like a fan. Another finds its trunk and says it’s like a snake. And another touches the tusk and declares the elephant to be very like a spear.

The best that can be said about last week’s Brexit divorce deal struck by Britain and the EU is that it is much like this elephant. Britain and Brussels are the blind men. Unfortunately, the next part of the parable isn’t very promising. Having touched the elephant, the blind men start arguing, accusing one another of dishonesty. In some versions, they piece things together and resolve their differences. In others, they come to blows.

The important part of the deal is not the money or citizens’ rights. In the history of a nation, £40billion and eight years – how long it will take for European Court of Justice jurisdiction to expire – are small fry. What matters is Britain’s freedom, after Brexit, to trade on favourable terms while deciding its own laws and regulations, rather than simply following EU rules.

Here, last week’s deal uses language as strange as an elephant’s trunk. The UK and EU have agreed that they will try to find a clever way of avoiding a hard border on Ireland. But if they can’t, the UK will “maintain full alignment” with EU rules to keep the border invisible. The trick is that no one has agreed on what “full alignment” means.

The British government, stumbling upon the Brexit elephant, has grabbed hold of a legal concept called “mutual recognition”. According to senior Brexiteers, the “alignment” that the UK has signed up to doesn’t mean all the details of our regulations have to align. It just means that the goals of the regulations should align. In other words, if the EU passes a law to make vacuum cleaners safer, the UK doesn’t have to copy that law. It just has to have its own safety regime for vacuum cleaners.

This loose “alignment” established, the EU and UK would then simply agree to mutually “recognise” each other’s vacuum safety standards. This would allow these goods to flow back and forth without border checks. It isn’t much of a constraint, argue ministers like Michael Gove and David Davis, and is consistent with “taking back control”.

But what about the other blind man? The EU, encountering the Brexit elephant, has grabbed hold of a very different body part. We’ll call this piece of anatomy “the integrity of the single market”. In the Brussels – and probably also the Irish – view of things, Britain has agreed to something much more significant than mutual recognition.

In a single market, it’s only possible to abolish trade borders, in Brussels’ view, if all of the goods abide by exactly the same standards. If the single market lets other, non-eu-standard goods in, its “integrity” is compromised. Translation: unless the UK and EU can invent some new system, the only way to maintain the status quo in Ireland is to ensure all goods crossing the border comply with EU rules. That means Northern Ireland, and possibly the UK too, obeying EU diktat.

Which one of these blind men is right? Here’s where we depart from the parable. It is not possible for both parties to be correct. One of them has missed the elephant, wandered off into the bushes and grabbed an old tree trunk. We will only know which one at the end of Brexit negotiations, but there are several reasons to think that the blind man who’s off track is, unfortunately, our own government.

Last week’s deal states that both sides “have carried out a mapping exercise” to identify the ways in which cooperation between Belfast and Dublin “relies… on a common EU legal and policy framework”. It then states the UK has agreed (if there isn’t a deal) to maintain “full alignment” with all of those EU rules that “support Northsouth [Belfast-dublin] cooperation”. The rules being discussed here do not seem to be general regulatory concepts, in the way Brexiteers describe, but specific policies that have been “mapped”.

But there are even stronger reasons to think that the UK interpretation is dodgy. The British commitment to “full alignment” is unilateral and occurs only if some other deal can’t be struck. Mutual recognition agreements are not unilateral. They are, unsurprisingly, mutual and come about only by mutual legal agreement, not “in the absence of ” agreement.

It is also highly unlikely the EU would ever bind itself to a fall-back option that involves automatically recognising a foreign country’s regulatory standards. Brussels is notoriously jealous of its rules and regulations and only agrees to recognise others’ after tortuous negotiations. It has done this in some cases, with the US, Canada and others, but has never issued blanket recognitions to any country.

The good news is that this withdrawal document has no legal force whatsoever. In that sense, the government has achieved a masterful fudge, persuading the EU to put off the whole decision about Ireland until the second phase of the talks. But in achieving that victory, the UK has lost an important political battle. It has danced to the EU’S tune and appeared to concede that the Irish border dilemma is insoluble in the absence of an ambitious trade agreement.

All of this means that we can expect an almighty row next year. It’s unlikely, given the EU’S inflexibility, that the UK can achieve the “mutual recognition” trade deal it wants. If it doesn’t, it will soon become clear that the Government’s Brexiteers do not really intend to abide by the agreement they struck last week. They are holding fast to that tree trunk, claiming they think it’s an elephant. In reality, they know it’s not.

This ruse might work for now, assuming the European Council accepts it later this week. But if the EU calls our bluff next year, the Government will have to choose between capitulating and walking out. The Cabinet still hasn’t decided what it will choose. What it has done is send a strong signal that the EU should expect us to capitulate. That’s an odd definition of victory.