Among unionists in Ulster, there is a deep-seated fear that, because the Irish government and nationalists have consistently thrown the noisiest tantrums over Brexit, eventually London will decide it is easier to accommodate their demands than protect the integrity of the United Kingdom. These anxieties were heightened by reports that David Davis’s Department for Exiting the European Union (DExEU) had prepared a plan to give Northern Ireland “joint EU and UK status as well as a border buffer zone”
This is supposedly one of two schemes being considered as a variation on ‘max fac’, that avoids cameras or other new technology at the Irish frontier. To many unionists, it sounds distressingly like a form of ‘special status’, designed to keep Northern Ireland inside the customs union and single market, while the rest of the UK leaves. It prompted the DUP leader, Arlene Foster, to reiterate her party’s threat to withdraw support for the Conservative government, should the whole country not be treated the same.
Although the details were not confirmed officially, The Sun believed that David Davis was set to propose that the province should operate under both the EU and UK regulatory regimes simultaneously, so that it could trade freely with both jurisdictions. The most madcap element was the suggestion that a ten mile buffer, or ‘special economic zone’, would run alongside the border, allowing “dairy farmers” and other small businesses to operate unhindered.
This vague outline left many questions unanswered and its acceptability to the DUP hinged on whether substantive new administration or checks were required at Irish Sea ports between Northern Ireland and Great Britain. The party has insisted repeatedly that an effective border in the Irish Sea is unacceptable and, so far, it has received firm enough support from Theresa May who said, “no UK prime minister could ever agree to it”. No. 10 quickly briefed reporters that Davis’s scheme was unworkable, as was any plan necessitating a customs border in the Irish Sea.
According to the newspaper, City A.M., the ‘max fac’ solution for Northern Ireland is likely to look more like a trusted trader arrangement, with special provisions in place for all-island standards in areas like meat. There are already checks in the Irish Sea for matters like animal health and leaked early drafts of the ‘joint report’ on phase 1 of the negotiations focussed on ‘regulatory alignment’ in specialist sectors like agriculture and energy, where cross-border arrangements are difficult to untangle.
By the time the DUP had exercised its veto and the final text emerged, in December 2017, paragraph 49 contained a vaguer commitment that the UK would maintain “full alignment” with EU rules, where “North South cooperation”, “the all-island economy” or the Good Friday Agreement were affected. That reassured unionists temporarily that Northern Ireland would be treated no differently to the rest of Britain, whenever Brexit happened, until the EU Commission subsequently translated it into a legal undertaking that a “common regulatory area” would be formed on the island of Ireland.
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Michel Barnier and the Irish prime minister, Leo Varadkar, have spent months demanding that the UK adhere to this eccentric interpretation of the so-called ‘backstop’, set out in the commission’s ‘Draft Withdrawal Agreement’. In their view, Theresa May promised that Northern Ireland will stay in the customs union and single market, even if the rest of the UK leaves both. This aggressive position has generated considerable disquiet among pro-Union people in Northern Ireland, particularly because the British government has not set out its understanding of what paragraph 49 means legally.
That can be attributed, substantially, to disagreements in the Conservative Party.
Understandably, advocates of a buccaneering, Global Britain bridled immediately at the idea that the whole UK would continue to be bound by Brussels’ regulations, in the absence of a trade deal or “agreed solutions” on the Irish border. The ‘joint report’ was either criticised as a capitulation or derided as non-binding. David Davis described it as merely “a statement of intent”.
The lack of certainty has contributed to political instability in Northern Ireland, fuelled speculation about the province’s constitutional future and created nervousness, across the political spectrum. Despite the possibility that DExEU has a new plan, there are unlikely to be any definite answers any time soon.
If the newest version of max fac resembles ‘special status’ – with Northern Ireland tied closer to the Republic of Ireland’s economy, at the expense of its integration into the UK market – then it will be opposed vigorously by unionists. If, instead, the scheme looks to emphasise trusted trader status and regulatory alignment in a limited number of industries, it’s difficult to believe that the EU Commission will recognise it as new thinking.
There is almost an air of desperation as government ministers cast around wildly to find some solution that satisfies both the commission and the harder-edged Brexiters. Increasingly, it looks like the most pragmatic plan would keep Britain closely aligned to EU regulations, while preserving the right to strike independent trade deals. More ‘EEA minus’ than ‘Canada plus plus’. When will Theresa May tell Jacob Rees-Mogg?