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Brexit: Dunkirk or D-Day?

Theresa May ate humble pie on the Single Market and Customs Union but may have scored a Tory coup on eliminating EU social, environmental and consumer regulations and the associated red tape

Standing beside Britain’s much-maligned Prime Minister, Theresa May, European Commission President Jean-Claude Juncker on the morning of the 8 of December announced that “sufficient progress” has been made on Phase I of the Brexit talks to move onto Phase II, and the integral future trading relationship between the United Kingdom and European Union.

Brought to the point of parliamentary collapse by the steadfast border standoff between Leo Varadkar and her own supply and confidence partner in Arlene Foster, Theresa May had no choice but to accept an agreement that posits that if there is a failure of the parties to reach a suitable solution to the problem of the Irish border, Northern Ireland and therefore the entire UK would in essence maintain regulatory alignment with the European single market and customs union.

The final text, comprising paragraph 45 of the agreement, read:

“In the absence of agreed solutions, the United Kingdom will maintain full alignment with those trade rules of the internal market and customs union”.

It will probably be, in a word, the softest of soft Brexits. President of the European Council Donald Tusk pushed even further on the back of the agreement, proposing “that during [the transition] period the UK will respect the whole of EU law, including new law” and would “respect judicial oversight”.

In the round of back-slapping congratulations that followed in the halls of power in Brussels and Dublin (and the dejected, glassy-eyed resignation that descended like a pall over Westminster that same day), the narrative remained fixed on the upshot for Ireland and the EU as a whole that the British surrender was seen as representing.

After months of negotiating, Britain has been brought to terms on an agreement – that has since been declared as binding – that would tie their hands on trade alignment with Europe. So complete was the Tory rout, on the surface, that nobody took a second to question where this left the rest of Europe’s initiatives.

The precise wording of the agreement neglects to broach any of the EU’s areas of responsibility outside the trade regulations necessary to ensure the all-Ireland economy is not dissected by a north-south border postBrexit. In essence, in omitting mention of other EU regulations such as those governing social, labour, environmental and consumer rights, the wording of the current agreement leaves the door open for the UK and Northern Ireland to undercut European single market members on all those issues, while retaining the right to export into the EU and take advantage of its market supply chains.

Neale Richmond, a Fine Gael Senator and its Seanad Spokesperson on European Affairs, argues that this outlook is purely “hypothetical”.

“The deal secured, to be ratified shortly, is a base of ground-rules” he says, “the agreement of which will allow the second phase of negotiations to take place”.

In other words, “Nothing is agreed until everything is agreed”.

There is, Richmond states, “no practical difference” between the phrases “regulatory alignment” and “avoidance of regulatory divergence” bandied about by all sides during the negotiations.

“It is a use of language”, he said, designed to win the support of the DUP for an agreement to maintain standards between the Republic and Northern Ireland.

But those standards remain vested in economic issues.

“The final agreement”, Richmond promises, “will tie together all working parts”.

Should Westminster become alerted to the inadvertent outmanoeuvring of Ireland and Europe afforded them by the wording of the current agreement, however, they are under no obligation to concede alignment on social and environmental matters which would probably require oversight by the European Court of Justice anyway.

The Phase I agreement has passed muster in good faith on both sides without reference to areas of regulatory responsibility outside trade and the economy. Through Phase II negotiations, therefore, London is under no obligation to subscribe to the Social Chapter of the European Union, an agenda successive Tory governments have derided since the 1990s.

Whether a future Labour government under the radical Jeremy Corbyn might prove more amenable on these issues, Senator Richmond was not inclined to opine on.

“We are negotiating as part of the European side in good faith with the current British government”, he said, adding that the government “cannot entertain” speculation as to the motives of any hypothetical future Labour party.

As Village goes to press, the media on both sides of the Irish Sea remain silent as to the possibility of an opportunity opening up for the UK post-Brexit. It remains to be seen what role the Social Chapter and other noneconomic regulatory concerns will play in Phase II of negotiations, when they begin next March.