Janet Daley

The best way to counter the unacceptable is simply not to accept it at all

Theresa May has infuriated virtually everybody in political life over the past six months with her duplicitous conspiracy to blind-side her Cabinet colleagues, Parliament and the majority who voted Leave in the Referendum.

That may explain why the significance of a critical point in that EU Political Declaration she delivered has been given so little attention, even though in the early hours after the document’s release on Thursday morning, it attracted considerable notice. If you blinked you would have missed it so let’s give this remarkable development, and its implications, at least a moment’s thought.

The EU Commission has decided that it is prepared to consider the obvious solution to the Irish border problem, which is to say the one that whole legions of experts have been shouting themselves hoarse to promote for months. Here are the magic words from the Declaration: “Trusted trader programmes and mutual assistance on recovering tax and excise can also be employed to ensure trade is as frictionless as possible… Such facilitative arrangements and technologies will also be considered in developing any alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing.”

Have you got that? The technological/mutual cooperation model (even on recovering tax and excise!) for trade across the Ulster border is now officially regarded as both plausible and desirable.

If you follow these things, you will be aware that until five minutes ago, this was precisely the sort of solution that was dismissed by the EU Commission as “magical thinking” – so preposterous as to be unworthy of discussion. Since none of the parties – not the EU, nor Ireland nor the UK – would ever have countenanced a hard border, this whole farrago was, of course, a politically-driven fiction; but the ramifications of this apparent EU volte face are of real significance.

If technology and trusted trader schemes do away with the need for a border which could have meant either the break-up of the Union or the return of the Irish Troubles, then they also do away with the dreaded backstop, which was designed to prevent either of those outcomes by locking the whole of the UK into the customs union indefinitely. So, if there is no border, there would be no backstop and no need for indefinite UK membership of the customs union: hence no insoluble Irish border problem. The strongest card that the Remain lobby had gifted to the EU would be rendered pointless.

And yet, what should have been seen as at least something of a victory by its progenitors who had gone to such lengths at a private meeting with the Prime Minister to promote it, was immediately dismissed by them. Iain Duncan Smith and Owen Paterson, who are both very convincing indeed on the credibility of such a practical solution to the Irish border question, and who led that contingent to Downing Street, denounced the Political Declaration in the Commons with scarcely an acknowledgement of its rather dramatic reversal of the EU’s stance on the Irish border. Their explanation for this would be that the Withdrawal Agreement (over 500 pages) still contains the backstop and is legally binding, while the declaration (26 pages) is not binding and is thus simply a woolly statement of aspiration.

This is perfectly true and there is a very strong case for removing any mention of the backstop from the proposed Withdrawal Agreement now that it seems to be in clear contradiction to the stated intention in the Political Declaration – ie that it should be possible to do without any hard border either on land or in the Irish Sea. (Although the EU could argue, in its famously litigious, selfserving way, that even though it hopes to achieve such a technical solution, it may in the end, not be possible so the backstop must remain available etc, etc.)

This is all predictably tedious. Everything hinges on the distinction between what is legally binding – that is, a Treaty which is protected by international law – and that which is just fluffy political “aspiration”. In truth, it is all political noise-making: is the EU really going to prosecute us in the Hague if we renege on the obviously outrageous conditions that it is trying to impose? Would those conditions – which have been likened variously to colonisation, vassalage and the vengeance of a conquering enemy – be likely to stand up in court if it did? The Withdrawal Agreement demands should be, as everybody is energetically pointing out, unacceptable to any free country. It would be wrong for us to accept them, not just because they are inimical to the national interest but because they are morally repugnant and a grotesque affront to a nation with a more consistent commitment to democracy (sorry, it inevitably comes back to this) than the states that presume to make the demands. So if this is all about political game-playing, let’s look at the political implications of what I insist is a significant change in the EU stance on the Irish border.

What the EU now seems to be effectively admitting is that the whole Irish thing was just a convenient ruse. When the British negotiating team made it clear that the DUP would certainly pull the plug on the May Government, leaving Barnier and co to deal with the chaos that followed, there was a sudden Damascene conversion in Brussels to the wisdom of a technological/trusted trader border solution. Now the Conservative Party – both its Leavers and Remainers – seems ready to bring down its leader leaving Barnier and co to deal with the unpredictable aftermath.

At last, the UK may be turning into an accidental tough adversary in these “negotiations”. Because the Brexiteers who looked only days ago as if they had tragically fumbled their chance are pushing hard enough to make even the cleverest Remain gambits (like the Irish border) unplayable. This is the moral of the story: only criminals make offers that can’t be refused. The way to counter the unacceptable is not to accept it.

‘What Europe now seems to be effectively admitting is that the whole Ireland thing was just a convenient ruse’