On Tuesday October 2nd the machine controlled by Dominic Cummings issued a memorandum to Tory MPs on the line they should follow in any public discussion of the Brexit process. The leaked memo informed MPs that Johnson and “key leaders” among the EU 27 would have to “judge whether it is possible to work out a detailed legal treaty over the next three weeks”.
Claiming that Theresa May’s cabinet had driven “the country into a cul-de-sac”, the memo boldly asserted that the “deal” outlined by Johnson was “the only possible landing zone for compromise”. It also said that the UK was “obviously happy to negotiate details”.
The memo’s message was that if the EU maintained that in effect Northern Ireland is never allowed to leave the customs union, it would be impossible to negotiate any deal. This outcome, it said, “will be seen by everybody as a crazy policy”.
It pledged that the government “will not negotiate a delay” at the EU Council on the 17th-18th October. “Any further delay would be extremely damaging for democratic politics and the economy”, it said.
In his recent letter to President Juncker, Johnson stated that failure to reach a Brexit deal would be a “failure of statecraft for which we would all be responsible”.
Part of Johnson’s “deal” is conferring on the Northern Ireland Assembly a veto on whether Northern Ireland would become or continue to be subject to “regulatory alignment across Ireland”.
The letter to Juncker asserted that the Northern Ireland regulatory zone must depend on the consent of those “affected by it”. Johnson claimed that such consent was “essential” to the acceptability of any arrangement by which part of the UK accepts the rules of a “different political entity”.
Promising to take Northern Ireland out of the customs union, Johnson has tabled proposals which are strenuously opposed by the great majority of civil and economic society in the North.
It must be remembered that the DUP position is a minority within Northern Ireland.
Handing the DUP minority a veto over the establishment and continuation of special status in respect of customs control and regulatory alignment has nothing to do with respecting the wishes of a majority in Northern Ireland and has nothing to do with the idea of obtaining the consent of the people of Northern Ireland to such arrangements.
Apart from the fact that the Northern Ireland Assembly has been semi-permanently mothballed, there is also the issue of the entitlement under Section 42 of the Northern Ireland Act 1998 given to a minority in the Assembly to veto decisions with which that minority is in disagreement under the rubric of a “Petition of Concern”.
In effect, as things stand, the DUP would be entitled to frustrate any special regulatory or customs status for Northern Ireland by keeping the Assembly in mothballs or, were it to be revived, by utilising the Petition of Concern procedure.
That means that the open border and the all-island economy aspects of the Good Friday Agreement would be handed as hostages over to the DUP as executioners. A fundamental element of the international treaty by which the UK and Ireland are bound would become dependent on the wishes of the DUP.
Neither the EU nor any Dublin government could possibly agree to such an outcome in the short, medium or long term. The very notion that Johnson thinks that such a DUP veto could be part of the “landing zone” for a new withdrawal agreement demonstrates a form of contempt for the Good Friday Agreement and total indifference to its survival.
The leaked memo to Tory MPs made it very clear that Cummings’ highest priority is to paint the EU and especially Dublin as unreasonable and as fall-guys for the extremist demands of the DUP/ERG tail-wagging-the-dog clique within Toryism.
Accordingly, the EU 27 and especially Dublin has to deftly combine soft language and steely resolve in order to avoid Downing Street’s elephant trap.
Having perused the terms of the European Union (Withdrawal) (No. 2) Act 2019 (aka the Benn Act) it is clear to me that Johnson faces a major dilemma.
Does he contrive somehow to crash out of the EU without a deal in clear contravention of the terms of the Act? Does he live up to his promise to die in the ditch rather than extending the Article 50 process beyond 31st of October?
Remarkably, he has now instructed counsel in new proceedings before the Scottish courts for injunctions compelling him to implement the Benn Act to undertake that he would in office send a letter asking for a delay in the absence of an agreed deal receiving parliamentary approval by the 19th of October.
So much for dying in the ditch. Or have the Tories devised some “clever” legal trick which allows them to circumvent the terms of the Benn Act?
The Benn Act only requires whoever is Prime Minister on the 19th of October to seek an extension in the terms of a letter scheduled to the Act addressed to the President of the European Council. Is Johnson minded to tender his resignation so that he can avoid sending the letter?
If he were to resign, would the House of Commons nominate a person for appointment as Prime Minister by the Queen in order to send the extension letter? Would Johnson escape his legal obligation by vacating his office in the hope that it would somehow remain vacant for 12 days?
Watching the utterly misleading and ambiguous language of Johnson and his senior ministers, we are left with the impression that the Tories have mastered not merely the art of speaking with forked tongues but of doing so simultaneously from both corners of their mouths.
For those who think that a No-deal Brexit and a consequent hard border would not really endanger peace and stability in Northern Ireland, it would be well to remember that an immediate explosion of terrorist bombs and gunfire is not the only threat.
Imagine what might happen if a sustained campaign of civil disobedience were coordinated to defeat all customs control wherever situate in the North or South– in much the same way as the recent beef blockade was mounted in the South but with hugely increased popular participation. The Chief Constable of the PSNI has already indicated that his force could not protect a customs network.
Such civil disobedience - if and when organised - has the potential to bring civil administration in Northern Ireland to a halt. In those circumstances, inter-communal violence such as we have seen before becomes not only theoretically possible, but plausibly a real probability.
Arlene Foster should look around a few corners. She and her colleagues in the DUP have done quite enough damage already on the benches at Westminster – matched only by the empty seats there vacated by Sinn Féin - who somehow justify leaving the sensible majority in the North with absolutely no voice in Westminster and Stormont.
It is an irony that two parties who refuse to work in government together are active members of a wreckers’ coalition.