Time is rapidly running out in the Brexit negotiations and there is still no agreement in sight on the issue of the Irish border. Gavin Barrett explains that despite the ultimatums emanating from each side, a no-deal Brexit would be catastrophic for both the UK and Ireland.

Tony Blair once famously compared then British Prime Minister David Cameron’s (badly miscalculated) threats of the UK leaving the EU (if not given what it wanted) to a film scene from Blazing Saddles in which the sheriff successfully holds up a whole town by threatening to shoot himself unless the bemused populace meets his demands. In real life, the problem with such a negotiating technique, as Blair pointed out, is that the response may be ‘well, go ahead!’. Blair’s sage advice then seems even more apt now.

For the Brexit negotiations have been for some time in their own Blazing Saddles phase – with effective ultimatums emanating from both directions. Hence, Irish Taoiseach Leo Varadkar has continuously implicitly intimated that unless the UK government adheres to its repeated promises of a frictionless border, matters could end in a no-deal Brexit: bad for the UK, bad for Ireland, and bringing little joy for the EU as a whole (which might well lose out on UK departure payments). Less Blazing Saddles, arguably, than Mutually Assured Destruction, since everyone bites the bullet if things go wrong, and not just the sheriff. Varadkar, to be fair, is motivated by two very serious risks posed by a hard border: those to peace, and those to now-flourishing cross-border commerce. He can also point to a done deal: December’s Joint Report backstop commitment (agreed by Theresa May) to avoid frictionless borders.

There is another Blazing Saddles twist, however. Because while Varadkar has been insisting on frictionless frontiers, Theresa May has insisted equally vehemently that the UK will leave both the customs union and the single market – yet still avoid any need for checks on the Northern Ireland border. For long, May preferred the options either of a ‘customs partnership’ (involving the UK collecting EU tariffs) or of a technology-reliant ‘MaxFac’ approach. (Last week saw her push partnership hard as the medium-term option). There is a touch of the snake-oil cure about both options, however. Hence former UK civil service head Lord Kerslake dismissed a partnership as domestically politically unworkable – he might have added a bureaucratic nightmare – and MaxFac as technologically impossible.

Similarly, neither the EU nor Ireland (nor anyone else) really believes either ‘solution’ can produce a frictionless frontier. Theresa’s way (as Boris Johnson has effectively admitted privately) is the way of hard borders. But May has refused to do seamless borders any other way (above all in the only way in which this seems possible: by keeping the UK as a whole, or else just Northern Ireland, in the Single Market and customs union). Effectively, then, May too is threatening the disaster of a no-deal for everyone, if she doesn’t get her way. Her economically-suicidal ‘no deal better than a bad deal’ agenda persists even if it no longer dares speak its name.

UK Prime Minister Theresa May meeting with Irish Taoiseach Leo Varadkar, Credit: Number 10 (Crown Copyright)

The result of all of this is a negotiating impasse. In effect, we are witnessing a high-stakes game of political chicken, with the UK on one side and Ireland and the other 27 EU member states ranged on the other. The Commission (with a keen eye for encouraging UK compromise) has noted some 60 areas in which the regulatory structure for UK single market access will collapse in the event of a no-deal. It includes everything from aviation to energy, fisheries, medicines and transport. The implication is that without someone giving way, the UK economy will be in deep trouble very quickly.

Theresa May, parliamentarily dependent on the DUP and on Jacob Rees-Mogg’s hardline Brexiteer ‘European Research Group’ faction (which opposes even her customs partnership) and presiding over a divided Cabinet, looks short of workable exit strategies. Postponing a decision – the approach, as one commentator put it, of a Macawber rather than a Machiavelli – has long been her primary approach. Last week, she suggested the UK staying in the customs union until beyond the December 2020 cut-off date for the transition period until one of her solutions becomes workable. This has at least the advantage of novelty (both MaxFac and partnership having already been rejected by the EU) but ultimately involves more postponement and no finality, and may be rejected on that basis.

Irish opposition leader Micheál Martin and former Taoiseach Bertie Ahern earlier voiced suspicions that there might be an agenda in the UK’s waiting game: to force a climbdown by Ireland at the October European Council if the border then remained the only missing piece of the Article 50 agreement jigsaw. Recent predictions by David Davis of having to wait until October for agreement only fuels such suspicions.

Such a UK strategy might well backfire. Ireland continues to seek friction-free borders. And EU institutions (contrary to the expectations of some) have backed Ireland to the hilt, using language that it will be difficult to retreat from. European Council President Donald Tusk recently asserted “if, in London, someone assumes that the negotiations will deal with other issues first… my response would be: Ireland first.” Commission Chief Negotiator Michel Barnier, in the border town of Dundalk recently, characterised himself as the “negotiator for Ireland” and stipulated there “must not be a hard border on the island of Ireland”. Other EU states have also seemed disinclined to abandon Ireland, with, in particular, the agenda-setting Germans and French refusing to support May.

Barnier’s recent Dundalk/Derry visit underlined the EU’s commitment to a frictionless border – and came with a pointed warning from Barnier that without any, there would be no Article 50 deal – and no transition deal either, as desperately needed as this is by the UK economy. Varadkar further cautioned the anticipated October deadline for an Article 50 agreement might be missed if “real and meaningful progress” on the border was not seen by June. This has raised the prospect of economic chaos for the UK by 29 March next year.

May is in difficulty. She has no majority in either the Lords or Commons to win the upcoming vote on exiting the customs union (although she could seek to solve this problem by delaying a parliamentary vote until after October). Yet any attempt by her to give Ireland and the EU what they demand (permanent UK – or at least Northern Irish – presence in the customs union or an equivalent arrangement, plus elements of the single market) might possibly lose hardline Tory Brexiter support, and precipitate May’s downfall. The more customs-union friendly Labour might not win any subsequent general election, going by recent local elections.

In Blazing Saddles, the hold-up ends happily. There remains a real danger that this will not happen in this showdown. On the other hand, for all the implicit threats, May now seems to be scrabbling for solutions, and Varadkar is making soothing noises regarding building on the customs partnership idea. This might indicate that the looming catastrophe – for all concerned – of a no-deal Brexit is making all concerned look for excuses to reholster those side-arms they currently have pointed threateningly at their own heads.

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Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics.

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About the author

Gavin Barrett – University College Dublin
Gavin Barrett is Jean Monnet Professor of European Constitutional and Economic Law in UCD Sutherland School of Law.

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