It is a pity he did not dig into the detail, before his Prime Minister wrote her Article 50 letter, which set the clock ticking.
Given that Brexit is a unilateral British decision, the first responsibility for spelling out how the British government’s decisions might affect the border in Ireland, and movement between Ireland and Britain, rested, and still rests, with the British government itself. The failure of the UK to do this has placed both the Irish Government, and the Democratic Unionist Party, in an invidious position.
The nature of the border will be determined by the long term permanent relationship the UK will have with the EU.
So far, apart from saying that it wants a “tailor made” deal between the UK and the EU, the UK has not set out any detail of what this relationship might look like. This is a fatal omission on the part of the UK and explains why the UK is in difficulty.
One would have thought that, once it had decided to reject the customs union and the single market, which it did over a year ago, the UK government would have immediately worked out a detailed blueprint for the proposed new relationship it wanted with the EU, taking into account what it knows well are the fundamental parameters of all EU relationships with third countries.
AFTER ALL BRITAIN HELPED WRITE THOSE RULES
The UK knows what these parameters are because it had a hand in drawing them up.
They were approved of by the EU Council of Ministers as far back as July 1978, with full UK participation and have been adhered to ever since. They are well understood by the British Foreign Office.
They are known as the Interlaken principles. They were set out for the EU at a meeting in Interlaken between the EU and the countries of the European Free Trade Association. They were accepted by all as the basis for negotiating any relationship, short of EU membership, for the countries of EFTA, or for any other country.
The Interlaken principles say that any arrangement with a third country (which the UK now aspires to become) would have to meet the following requirements
+ priority for the EU’s own internal integration
+ the safeguarding of full decision-making autonomy for the EU, and
+ a balance of benefits and obligations between the EU and the third country in question.
These principles have been respected in all EU arrangements made since, with countries like Norway, Ukraine, Georgia, Switzerland, Canada, and Turkey.
There is no way an exception from these principles can be made for the UK.
After all, the UK is leaving the EU of its own free will. Any breach of the principles would be a precedent that would undermine the EU’s relationships with all other non member countries. It would set a precedent. It would reward a country for leaving the EU, and thus it would discourage any new applications.
If the UK government had devoted serious time to thinking itself into the EU mind, before writing its fateful Article 50 letter , it would have seen all this.
If the UK Government had worked up a blueprint of its own for UK/EU relations, that met, or at least attempted to meet, these Interlaken criteria, it would have flagged all the negotiating problems the UK negotiators are now facing.
If it had done this, it would have seen, for example, that refusing the jurisdiction of the ECJ, and attempting some parallel bilateral judicial arrangement to arbitrate EU/UK disputes, would have broken the second Interlaken principle (autonomy of EU decision making).
It would have seen that any attempt by the UK to opt into the bits of the single market that it liked, but not others, would offend against the third one (balance).
BRITAIN HELPED DESIGN THE SINGLE MARKET LEGAL ORDER, AND NOW WANTS TO BLAME THE EU FOR DEFENDING IT
Some people in UK politics knew this all along.
I heard a prominent pro Brexit Minister admit a couple of weeks ago that the EU single market is a “legal order”, and that a country cannot be” half in and half out of it”. That is the way the Single Market was designed by the UK and other EU countries when it was set up. The UK knows the rules, because it helped write them.
But it will still try to blame other EU countries and the Commission for applying the rules the UK itself helped to write, when it was an EU member.
The nature of the Single market was concisely explained, in a UK newspaper last week, by the former Director General of the EU Council Legal Service, Jean Claude Piris, as follows.
The Single Market, he said
“aims to abolish all regulatory obstacles to exchange and binds participating countries to strict conditions. These include the norms and standards for goods, the primacy of EU law over national laws, and the exclusive final power of interpretation by the EU Court.”
Other countries, that have never been EU members, and are trying to negotiate access to the EU market, might be excused for not understanding these basic principles of EU policy, but the UK cannot plead this excuse, because the UK was at the table when these rules were laid down.
Once the UK “takes back control”, it’s norms and standards for goods and services will inevitably diverge from EU standards. That will mean customs controls and inspections. It does not much matter whether these controls are on the border itself or not, they will involve delays, bureaucracy, and extra costs. The friction may or may not be at the border itself, but there will be plenty of friction!
UK DECISION TO QUIT SINGLE MARKET AND CUSTOMS UNION WILL CREATE OPPORTUNITIES FOR ORGANISED CRIME AND THE FINANCING OF TERROR
Controls, of the kind that will have to be introduced, will create glorious new opportunities for organised crime, which is an entirely foreseeable consequence of the UK government choices. Meanwhile the UK is taking itself out of the European Arrest Warrant!
For cultural and historical reasons, the UK has never allowed itself to understand the EU. It is not now ready for Brexit. It needs time to think out properly about what it wants, and what it is giving up.
That is why I have suggested that a six year time frame for the Withdrawal negotiation replace the two years allowed in Article 50. That could be agreed by unanimous consent of the 28 EU states. It would give everyone the breathing space necessary to see where they are going, and make sure it really is where they want to go.