No one can deny the magnitude of the task which faced Theresa May when she became Prime Minister in the aftermath of the referendum result. Negotiating the United Kingdom’s departure from the European Union would have been difficult enough given the deep divisions within her own party on the question of what form Brexit should take, without the added complexity of the Irish border.
Propping up May’s government are 70 or so Conservative MP’s who are determined to leave the single market and to avoid a customs union with the EU, so that Britain would have maximum freedom to negotiate new trade deals around the world and to diverge from the EU’s regulations where necessary.
Theresa May and Nick Timothy decided – apparently during the process of writing her Lancaster House speech – to keep this group onside: Britain would leave the single market and the customs union. But with the outer frontier of the EU’s Internal Market bumping up against Northern Ireland, this was always going to mean border infrastructure and checks at either the Irish border or the Irish Sea. And given that both parties have ruled out the former and the UK has ruled out the latter, the Brexit talks have been stuck ever since.
I’ve been reading volume one of Niall Ferguson’s biography of Henry Kissinger, and I think Kissinger’s ‘problem of conjecture’ sheds light on where May has gone wrong. Kissinger believed that good statesmen reasoned from history, always keeping in mind counterfactuals – what might be and might have been. ‘The peace he achieves is always by definition a disaster that has been averted,’ says Ferguson. This is Kissinger’s ‘problem of conjecture’: acting before one is certain to avoid potential but uncertain consequences.
Kissinger said that at any given moment, a decision maker confronts a line of least resistance, ‘the choice between making the assessment which requires the least effort or making an assessment which requires more effort.’ He believed statesman must ‘find the will to act and to run risks in a situation which permits only a choice among evils.’
Before triggering Article 50, May had the choice of three evils: soft Brexit, border checks at the Irish Sea or border checks at the Irish border. Instead of finding the will to choose between these three evils, she opted for the path of least resistance.
There were of course risks associated with each of the three evils. Had May opted for single market membership, she could have split her party – perhaps having to fight a populist Tory splinter movement in an election where ‘take back control of our borders, our money, and our laws’ would have been fresh in voters’ minds. If she managed to at least not lose such an election, she might’ve found herself at the helm of a cross-party government of Europhile MPs, with the likes of Boris Johnson sat in opposition. She would have been condemned for splitting the Tory party, losing her majority, and betraying the referendum result. Indeed, if May instead declared early on that there would have to be border infrastructure and customs checks either the Irish Sea or the Irish border, she would have been condemned for risking the peace process and wrecking supply chains by Remainers, and chastised by leavers as pessimistic or ‘giving up without a fight’.
But having opted for either of these options early on, she could have spent her entire negotiating capital making the very best of things. Under the soft Brexit scenario, she might’ve got a Liechtenstein-style opt-out to free movement. And in acknowledging the need for border checks early on, she could’ve at least spend the past year or so building new customs infrastructure and putting plans in place for the fallout. In either case, she could’ve done her best to sell her vision to the British people – perhaps in an election.
As we stand today, the EU is proposing a fall-back solution to the Irish border problem whereby Northern Ireland would remain within the EU’s regulatory sphere – one of the very evils mentioned previously – should the UK fail to provide an alternative solution. This, May said, is something ‘no Prime Minister could ever accept.’ In his press conference with the Irish Taoiseach, Donald Tusk issued the UK an ultimatum. Unless the UK comes up with ‘a specific and realistic solution to avoid a hard border’, he said, ‘it is very difficult to imagine substantive progress in the Brexit negotiations.’ Precedent says May will accept the EU’s fall-back solution and hope once more that ‘something will turn up’. The real danger is failure to resolve the impasse, raising the spectre of no-deal.
May conjectured that she could negotiate a deal that would eliminate the necessity of choosing between the three evils. She hoped for a technical solution to Irish issue which could be wrapped up in the final deal. But the EU was never, legally, in a position to offer above and beyond what other third countries have, given the UK’s red lines. May overestimated what was she could get from the negotiations and failed to keep in mind the counterfactual – ‘what happens if our unprecedented plans for frictionless trade outside the single market fail?’
In taking Kissinger’s ‘line of least resistance’ and putting off key decisions, May has made the inevitable more painful that it needed to be, especially for her party. Whatever the outcome of Brexit, it won’t be the one the Prime Minister and the Tories promised – a fact that will not pass voters by. Now, she’s short of ideas, time and negotiating capital, and facing a choice between the same three evils.