Patchwork Brexit, Soft Brexit, No Brexit?

Kirsty Hughes | 5 December 2017

© 2017 European Union

Theresa May came home without a deal on Monday thanks to the DUP. If trade and transition talks are to start with the EU27, she will have to get them back on side somehow, while not losing the draft agreement with the EU27 including Ireland.

The phrase of the moment – ‘regulatory alignment’ for Northern Ireland – is one that to most of the key players sounds like something close to or identical to being in the EU’s single market and customs union. It would or should ensure no hard border between Northern Ireland and Ireland even in the event of ‘no deal’. But for Theresa May, it leaves the door open to keep arguing for a ‘deep and special’ trade deal with the EU27.

In her Florence speech, May talked about keeping ‘high regulatory standards’ which would sometimes be the same as EU ones, sometimes similar, sometimes different. It would appear that she hopes she can still argue for this – even though the EU rejects such a cherry-picking approach – if she can only unlock trade talks at next week’s summit.

So the commitment to ‘regulatory alignment’ for Northern Ireland that she apparently made before Monday’s deal collapsed could, for her, mean a UK-EU27 trade deal with much better access to the EU single market than Canada (the EU27’s preferred model). But, equally, ‘regulatory alignment’ could mean, in the end, special arrangements or a special deal for Northern Ireland. Whether May can now reassure the DUP that this is not what it means while keeping the Irish government and EU27 on board for a deal is the challenge for the next few days.

If a form of words is found to unlock trade talks, these arguments will return rapidly. The EU27’s guidelines on trade – a draft of which Donald Tusk referred to on Monday – will, most likely, set out a Canada-style trade deal approach. That would mean a hard border for Northern Ireland unless it has a special deal, which would then mean a border in the Irish Sea. The EU27 are not about to accept Theresa May’s view of regulatory alignment as meaning similar but different rules and regulations.

Where is the opposition?

The opposition parties should surely be having a field day at this point. But with Labour’s acceptance of Brexit and its refusal so far to back a ‘soft’ Brexit, Jeremy Corbyn simply tweeted that the failure of talks in Brussels was due to the Tories’ ‘grubby deal’ with the DUP and that the Tories can’t negotiate a ‘successful deal’ for the UK – implying Labour could.

In similar vein, Vince Cable tweeted that the DUP should not be allowed to ‘dictate’ the government’s position in negotiations. Neither Cable nor Corbyn, on Twitter, addressed the challenge of keeping Northern Ireland’s border with Ireland open. Neither called for a halt to Brexit amidst the political and economic harm it’s doing.

Stronger opposition was to be found in Scotland, Wales and London. Nicola Sturgeon tweeted that the deal had to mean either ‘some kind of Norway status’ for the whole UK or a special deal for Northern Ireland (and if the latter then why not, she asks, for ‘Scotland, London and Wales (if it wants it)?’. This is a pretty succinct explanation of the conundrum. On the same lines, Carwyn Jones tweeted that if one part of the UK were to stay in the single market then ‘we fully expect to be made the same offer’. Completing the trilogy, Sadiq Khan said there were ‘huge ramifications’ for London if one part of the UK could have a special single market/customs union deal.

None of these politicians chose though, at this moment, to call for a halt to Brexit. Certainly, the UK staying in the EU’s single market and customs union would retain the access we have now, solving border problems not only for Northern Ireland but for the whole UK vis-à-vis the EU27. But if that is the best Brexit solution, short of no Brexit, then why would opposition politicians not simply argue to halt Brexit, to keep the UK’s vote and voice on all the EU’s rules and regulations: ‘regulatory alignment’ without a vote or voice is the opposite after all of taking back (or keeping) control.

Special deal for Scotland or a patchwork Brexit?

The Scottish government has been arguing for a year for Scotland to stay in the EU’s single market, if the UK doesn’t go for a super-soft Brexit of staying in both the EU customs union and single market. They have avoided arguing for Scotland to stay in both the single market and customs union – which yesterday’s deal implied could be the case for Northern Ireland – since Scotland in the customs union, if the rest of the UK was not, would create a border between England and Scotland.

But Monday’s talks fiasco highlights both the power and the limitation of the Scottish government’s approach. If Northern Ireland gets a special deal, then Scotland won’t be the only part of the UK demanding the same. A patchwork Brexit of Scotland, Wales, London, Northern Ireland (and more) in the single market (and the customs union for some, not for others) would create a UK criss-crossed by new border checks. The Scottish government’s Scotland’s Place in Europe paper argued these could be avoided (just as Liechtenstein and Switzerland do, though the former is fully in the EU single market, the latter not).

But if the UK ends up negotiating a Canada-style trade deal with the EU27, there will be a hard border at Dover and other UK ports. If Scotland were in the EU single market, while the rest of the UK was not, then it’s hard to envisage special arrangements on what would be an external border of the EU’s single market to keep it open and frictionless.

And the EU27 are highly unlikely to accept a patchwork Brexit. They wouldn’t even discuss it unless the UK asks. Northern Ireland was identified from the start in the EU27 guidelines, and the issue is of central concern to Ireland, an EU member state. But while there may be sympathy in Brussels for Scotland and London (not forgetting Wales voted ‘Leave’), that would not extend to creating a patchwork Brexit deal.

A ‘halt Brexit’ coalition?

So the politics of this, in the end, are not about a final differentiated Brexit deal across the UK. The politics are about opposing a hard Brexit and, to some extent, indirectly opposing Brexit altogether. In the coming weeks and months, May’s problems in squaring the circle within her party and with the DUP will continue to exacerbate political and constitutional tensions in the UK. And it will not make it any more likely that Holyrood will pass a legislative consent motion on the EU Withdrawal Bill currently going through the House of Commons. More constitutional confrontations loom.

Each of the opposition parties has different reasons for not calling clearly for a halt to Brexit in the midst of these increasingly farcical talks. Jeremy Corbyn continues to prefer being outside the EU and its single market. Vince Cable wants a second EU referendum on the deal – but that means he needs, or chooses, to wait until there is a deal. Nicola Sturgeon has so far not supported a second EU referendum and is loathe to tell English voters what to do. But if she calls for Scotland to stay in the EU as her top priority, then she will need to answer the question of why she isn’t calling a second independence referendum now.

But there is a coalition there, waiting to be formed, that could change the political dynamics of the inward-looking Brexit debate. If Nicola Sturgeon, Sadiq Khan, Carwyn Jones and Vince Cable together called for a halt to Brexit, instead of a ‘soft’ Brexit, the debate could be electrified. Labour would be put on the spot. Polls have been showing a small majority for ‘Remain’ for some months now, and that could increase.

Northern Ireland too voted Remain – its lack of a government at this crunch moment meaning that one party, the DUP, is getting all the political attention and leverage even though it doesn’t represent that Remain vote.

A temporary deal may be done in the coming days. Trade talks may start. But the Northern Ireland border challenge will not go away. And nor will demands for a soft/single market/customs union Brexit. But the UK can only get out of its current Brexit hole, if the opposition starts leading and giving a voice to the half of the UK, and two-thirds of Scotland, that wants to remain in the EU.

Kirsty HughesKirsty Hughes | Twitter

Scottish Centre on European Relations

Dr Kirsty Hughes is Director of the Scottish Centre on European Relations. She is a researcher, writer and commentator on European politics and policy, and she previously worked for a number of leading European think tanks.