Theresa May Just Negotiated Away the United Kingdom

In the early hours of Friday morning, as British Prime Minister Theresa May was driven home from Downing Street to catch two hours of sleep ahead of her dash to Brussels, an opinion poll was published in Northern Ireland.

It reported a sensational result. For the first time, a majority in Northern Ireland (51 percent after factoring out undecideds, nonvoters, and spoilers) supported unification under the Irish Republic to remain in the European Union in the event of a “hard” Brexit. London’s “hard” Brexit plans, which entail leaving the EU’s internal market and customs union as well as its political structures, had caused the solid, pro-U.K. “Unionist” majority that had existed since Northern Ireland’s creation in 1921, to evaporate. The Good Friday Agreement of 1998 brought Northern Ireland’s sectarian conflict to an end and abolished the militarized frontier with the Republic of Ireland. The reintroduction of a hard border, staffed by customs officers managing the EU’s external boundary, would not just bring back memories of past violence, it would provide targets for Irish republican terrorists at which to aim.

At 7:30 a.m. on Friday, Dec. 8, May and European Commission President Jean-Claude Juncker announced that the EU’s negotiation task force could recommend to the European Council that “sufficient progress” had been made to proceed to the next stage of Brexit negotiations. Brexit’s impact on the rights of EU citizens in the United Kingdom, British budget contributions, and the status of the border between Northern Ireland and the Republic of Ireland had now been brought within limits acceptable to both sides.

It was Northern Ireland that accounted for May’s undignified sprint. The small Northern Irish Democratic Unionist Party (DUP), on whose support her government depends, had sabotaged an earlier version of the agreement the previous Monday. London, Dublin, and the EU spent the following three days stitching it back together. Reading the papers in London and Dublin over the weekend, one could be forgiven for thinking that Brexit had been “solved.”

“The price of freedom” celebrated the Daily Telegraph. The populist Daily Mail’s front page echoed Margaret Thatcher’s announcement of victory over Argentina in the Falklands war: “Rejoice!” Across the Irish Sea, Fintan O’Toole wrote in the Irish Times that Dublin had maneuvered London into a soft Brexit, keeping it in the EU’s internal market and customs union.

It doesn’t take a genius to see that they can’t all be right. The agreement doesn’t eliminate the unresolved contradictions in the British position so much as provide a magnifying glass to bring once-diffuse light into concentrated focus on them. Since the 2016 Brexit referendum, those sharp rays have threatened to split the Conservative Party in two. Now it is the continued existence of the United Kingdom as a unitary state that is at risk.

Until Friday, the British government’s fallback position if a new trade relationship with the EU could not be negotiated in time had been to become a “third country.” In such a situation, Britain’s arrangements with the EU would be limited to those governing practical things like aviation and membership in the international financial system, and London would be free to make its own trade deals and apply its own immigration policy — two of the main goals of leaving the union.

On Dec. 8, however, Britain made a crucial concession concerning the border between the Republic of Ireland (an EU member) and Northern Ireland (a part of the United Kingdom). If no deal is reached, the agreement stipulates in paragraph 49 that:

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.

We will hear a lot more of the phrase “full alignment with those rules … which.” These words satisfy Dublin’s requirement, backed up by the EU, that even if negotiations break down, the British government will prevent a situation requiring the return of border checks in Ireland.

But the idea of “full alignment” awakened the DUP’s primordial separation anxiety — its fear that Britain doesn’t really want Northern Ireland any more, and would gladly be rid of the territory if it led to a quiet life or a few pieces of silver. May, whose parliamentary majority would disappear without the DUP’s votes, had no choice but to placate them with another paragraph, number 50, in which London also promises that in the event of no deal:

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.

The document seems at odds with itself. Paragraph 49’s “full alignment” will apply not only to regulations currently in force, but to regulations the EU decides to apply in the future. Meanwhile, paragraph 50 requires London to abandon new domestic regulatory barriers across the Irish Sea, unless Northern Ireland itself chooses to permit the U.K. to diverge.

Unless Northern Ireland grants this dispensation, the only way to make these two promises consistent is to have a “soft” Brexit, whereby the U.K. stays in (or almost in) the European internal market and customs union. That, however, would prevent the U.K. from controlling EU immigration or having its own trade and commercial regulation policy, both of which were cornerstones of the Leave campaign.

It’s a surprise, then, that Brexiteers (and the pro-Brexit press) have reacted so well to the deal. A clue as to why came from the Brexit secretary, David Davis, who casually told a Sunday morning TV audience that the agreement “was much more a statement of intent than it was a legally enforceable thing.” In a show of party unity, he later “clarified” that he’d really meant precisely the opposite.

But Tory Euroskeptics had by then got the hint: Don’t worry, this is only the starting point, take note of paragraph five (which contains another line we’ll be hearing a lot more: “nothing is agreed until everything is agreed”). Or, in the words of the Irish guerrilla leader Michael Collins, it gives them “the freedom to win freedom.”

Unfortunately for the Euroskeptics, the document itself takes a different view. Agreements, it insists:

must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.

The EU now has two ways of enforcing its will against a country whose ministers had announced within 48 hours of an agreement their intention to subvert it. Brussels can decide whether a no-deal outcome will be orderly or chaotic — whether the U.K. will be regarded as an ordinary “third country” after Brexit or an international outlaw with a reputation for reneging on its agreements. And it can pile on the pressure because deciding whether there will be a “transition phase” is also within their control. The so-called transition would actually be an agreement to continue the application of EU law to the U.K. for two years. Without it, Britain’s financial sector, businesses that trade with the EU, and even the British government itself wouldn’t be able to adapt in time.

While the EU has sharpened the choice for the U.K. — “full alignment” or the abyss — paragraph 50 does provide one escape clause. Northern Ireland could still choose, against the stated wishes of the DUP (who received just 36 percent of the province’s vote in the last elections), to allow the island of Britain to diverge from Northern Ireland’s EU alignment.

But if Northern Ireland gets to stay in the EU while England leaves, the pressure to grant the same status to Scotland, which voted to remain by a 24-point margin, will be irresistible. If the Scots are denied it, independence is likely to follow swiftly.

Yet full alignment with the single market and customs union would still be unacceptable to an England that voted to leave by a 7 percent margin, specifically in order to have an independent trade and immigration policy (Wales also voted to leave, by a 5 percent margin). And despite cherry-picking of hopeful polls by Remain supporters, public opinion in England and Wales has not changed significantly since the referendum.

May’s defeat in a parliamentary vote yesterday, thanks to pro-EU Tory rebels who demanded a say on any final deal, has made clear that a hard Brexit cannot be imposed on the entire United Kingdom.

The only way to avoid a disorderly Brexit now, and to give England’s voters the hard Brexit they want, is to concede a soft one to Northern Ireland and Scotland. This would give control of trade and immigration policy to Belfast and Edinburgh and leave the U.K.’s constituent nations connected mainly by the monarchy and military. Existing formally, but not much in substance, the U.K. would pass to what the famous English writer Walter Bagehot called the “dignified” (as opposed to the “efficient”) part of the constitution, perhaps returning to the pre-1707 situation when the three kingdoms were run separately.

The Brexiteers may get their “independence day,” as UKIP leader Nigel Farage called their referendum victory, but the price of their “freedom” will be the end of the United Kingdom as we know it.