The EU and the UK government have just agreed to muddle on in their negotiations. Nothing is truly decided until everything is decided, but they have adopted a position document (see here) that details what they want the next steps to look like and what they will do in case of disagreement.
There is a lot of fudge in the document so as to hide the true nature of the agreement. For instance, to keep the headline figure of the financial settlement down, the parties have agreed that there is “continued participation of the UK in the program of the current Multiannual Financial Framework (MFF) until their closure” which means commitments are dragged across any Brexit date.
The key bit that to me signals the possible end to the whole Brexit project are two crucial passages about Northern Ireland:
49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.
Now, please do correct me if you think I am misreading this, but this sounds as if the default position in the further negotiations is ‘No Brexit’: if there is no final agreement, then there will be no Brexit for Northern Ireland, and no Brexit between Northern Ireland and the rest of the United Kingdom either. This default position requires that in the future too, Northern Ireland will remain aligned to the rules in the rest of Ireland, ie the rules of the EU. North-South cooperation is in many spheres, so we’re talking here about immigration, finance, trade, standards, the lot.
There is some fudge in how to interpret these paragraphs. You might think that the ‘unfetterred access for … business’ qualification allows migration barriers but this is both not a workable distinction (if any truck can drive straight through as before, everything in that truck also drives through), nor would it preclude Northern Ireland to become the EU gateway to Britain, ie the place where those wanting to work in the rest of the UK come first. Also, ‘no new regulatory barriers’ is a very broad phrase that seem to rule out identity checks and tariffs.
I basically see the whole document as a total victory for the EU negotiators. They could not have asked for more: the UK accepts the supremacy of the European Court of Justice when it comes to the rights of EU citizens in the UK at the date of Brexit (afterwards new rules have to be mutually agreed); the financial settlement seems completely written by Brussels with minimal fig-leaves for the UK; and the Northern-Ireland paragraph contains the seeds of the end of Brexit.
Phase two in the Brexit negotiations is going to be easy for the EU now that the default is an absence of Brexit. The UK will have to come up with a proposal that is acceptable to all EU members and that keeps the Northern Ireland partners happy too. “Good luck with that”, one then thinks! The odds of ‘No Brexit after all’ have risen. Those who want a hard Brexit have a new barrier in front of them.