Getting Brexit deal past cabinet, Commons and country will come down to customs

Who knew the boring old question of customs could be so troublesome? We did, shout the pro-Remain trade nerds who have been warning for two years that Britain’s departure from the EU could fail or become excessively complex because of the difficulty of devising arrangements that keep the border open between Northern Ireland and Ireland when the UK (which Northern Ireland is in) leaves the customs territory of the European Union.

Now, when it comes down to it, the Prime Minister’s deal rests ultimately on this hitherto arcane area of dispute. After much arguing, and talk of separate arrangements for Northern Ireland, the EU and the UK government seem to have arrived at a guarantee (to be revealed tomorrow) that the UK will, if no whizz bang trade deal is forthcoming by December 2020, stay in a customs union with the EU. May and her team have forced the EU to concede on a major point. The backstop will not be purely for Northern Ireland, dividing up the UK. It’ll be – if she gets it through – for the entire UK. Well done. But…

The assurance given all along by Number 10 has been that Britain will not be trapped in such a customs arrangement for ever. That position has shifted of late. The chances of it happening in percentage terms are dismissed as small, which is not the same as an assurance amounting to no possibility. Calm down, it’ll never happen, is the line.

This means – if reports are to be believed – the UK will not be able to give notice that it wants to leave a customs union run by the EU. There will be some manner of joint review process.

You can fiddle around with the language all you like, but it amounts to the UK facing the prospect of being signed up in perpetuity, for ever, and being unable to leave an arrangement relating to its borders.

If this gets past the cabinet, and we’ll see if there are any resignation in the next 24 hours, then the Commons and Brexiteers and Remainers alike will be on it right away. If the deal falls in the Commons, it will most likely be on the question of Britain being trapped for ever in a customs arrangement with a foreign power with no right to leave.

The assumption at Westminster seems to be that voters won’t much bother about this concession. It’s years away and who cares about customs? On the contrary, voters (leave voters) might not care now about a subject that has so far only featured as background noise, but the basic principle is quite easy for us to grasp. We could be stuck in their customs territory doing what they tell us and we can never leave, ever, by law. If you think that doesn’t matter to anyone, you haven’t met many Brexit voters. An objection to this monstrous notion of control being removed beyond the reach of the UK Parliament is the very basis of Brexiteering.

Of course, there are other problems with Theresa May’s proposed deal, such as the suggestion that the UK will continue to align with EU rules in all manner of areas. I understand the concern there. But life is full of compromises, and manufacturers will need to make goods EU compliant anyway. In terms of public disquiet, the likelihood is that this could be swallowed by all but the most robust Brexiteers. We’ll see.

The customs problem is much more fundamental and troublesome. Several times I’ve quoted Lord Falconer, a Labour former cabinet minister and a Remainer, because he put it so neatly a few days ago on Twitter responding to an EU official:

“Understand about time limited,” Falconer wrote. “But there can’t be a border arrangement in public international law which has to last in perpetuity. There must be a means for either party to give reasonable notice.”

Quite.