Janet Da­ley

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

The Sunday Telegraph - - Front page - JANET DA­LEY

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’

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