The Brexit deal which nobody with any commonsense expected to be reached yesterday fell partially because of a spooked DUP who saw the Irish press and commentariat crowing about an Irish diploamtic coup, and partially because of a concept which is not particularly new but is nonetheless challenging.
The Irish want no ‘regulatory divergence’ between Northern Ireland and Ireland. The unionist position is that there should be no regulatory divergence between mainland UK and Northern Ireland. Both desires constitute red lines for negotiators.
The language in leaked draft documents suggests ‘regulatory alignment’, and for some reason this spooked the horses and the commentariat went wild. They needn’t have wasted their energies.
RTE correspondent Tony Connelly rolled out a story stating that the UK had agreed to ‘no regulatory divergence’ – having ‘had sight’ of the document. That’s a leak of a negotiating position and it’s the very definition of not negotiating with good faith. In a sense, it’d be a good enough reason to walk away – but we don’t really expect the EU negotiation team to deal in good faith.
Importantly, however, Connelly had to roll back the story within an hour, to a different conceptualisation of the text, best summed up by @BrunoBrussels: “in the absence of agreed solutions the UK will ensure that continued regulatory alignment with those rules of the internal market and the customs union which, now or in the future, support North South cooperation and the protection of the Good Friday Agreement”
This is a fundamentally different concept, predicated on a no-deal Brexit. To understand it, it may help to re-order the sentence.
It commits the UK, in areas which support North-South co-operation and the protection of the Good Friday Agreement, to ensure those Internal Market and Customs Union rules are aligned with. The “now or in the future” is a fudge, but it creates a standard Irish ambiguity, which may or not be useful later.
In other words, if we don’t arrive at a deal, the UK government agrees to continue supporting North-South co-operation. The UK agrees not to pull the plug on electricity interconnectors, won’t stop agricultural and business cross-border enterprises and won’t stop agreements established in the Belfast Agreement, like waterways and health service co-operation.
This paragraph does not commit the UK to special status for Northern Ireland. It does not leave NI inside the customs union. It allows for the status quo.
There is a good useful follow-on question relating to the ‘now or in the future’ – if the regulations change, does the UK simply have to go with them? It would seem to be an open question, turning on whether a rule did or did not support North South co-operation and the Agreement.
It is clear that this paragraph does not ensure ‘no regulatory divergence’ – in other words, this does not deliver what the Irish government has been seeking.
As I understand it, the DUP’s key points are as follows:
They won’t allow any deal which prevents Northern Ireland from realising the benefits of Brexit, which challenges Northern Ireland’s constitutional status in the UK or which frustrates internal trade inside the UK.
It’s also unclear whether this agreement between the UK and EU can actually be made over the heads of the Belfast Agreement. The mechanism for change of any aspect of Strand 2 of the Belfast Agreement is clear – and this is not it.
