The UK and EU are finally moving on to the main phase of break-up talks, but unfinished business threatens to come back to haunt them.
T he deal struck on Brexit this month came with all the hallmarks of a leaf being turned. After months of being snubbed, the British government finally found its attempts to move onto talks over the UK’s future relationship with the EU approved by Brussels.
With European Commission President Jean-Claude Juncker’s declaration of “sufficient progress”, UK Prime Minister Theresa May seemed to leave behind the purgatory of unresolved issues surrounding the Irish border, divorce bill and EU citizens’ rights.
A top aide to Mr. Juncker tweeted a picture of white smoke billowing from a chimney - matched, before long, by a breakthrough for Ms. May on home territory. Last week, her Conservative party pulled clear of the opposition Labour party in the polls for the first time since June, and commentators remarked on the resilience of a prime minister who many had tipped would not last until Christmas.
The two parties are now firing up for the next phase of negotiations over Britain’s relationship with the EU after the official departure date of March 29, 2019. ‘Phase two’ has been widely tipped as far more consequential for the UK’s future, and far more difficult to navigate.
Yet despite the fanfare, Downing Street may have in some respects sealed its fate in the push to conclude 'phase one.'
Agreements were reached on the divorce bill and EU citizens’ post-Brexit status, but they are unlikely to have a major impact on how the future relationship is drawn up. The deal on the Irish border, meanwhile, has been widely described as fudging the issue, leaving a bona fide solution down to the second phase of talks.
The first two issues were largely settled before the EU’s December deadline on reaching “sufficient progress”. But the third - which boiled down to disagreements over what constitutes a realistic commitment to avoiding the reintroduction of so-called ‘hard border infrastructure’ between Northern and Southern Ireland - ran right up until the night before.
While British negotiators insisted that the issue could not be fully resolved until talks over future trading arrangements could begin, Brussels demanded a binding commitment guaranteeing that Northern Ireland’s regulations would not significantly diverge from the Republic of Ireland’s.
The UK eventually signed up to a deal promising “full regulatory alignment” on the Irish island in the event that neither an overall deal nor a specific agreement on Ireland’s future is reached.
‘Squaring the circle’
Commentators set about picking apart the fluffy wording of ‘alignment’, with some suggesting it was deliberately chosen so as to reassure Brexiteers in Northern Ireland and Ms. May’s cabinet that they would not be trapped into a ‘soft’ Brexit.
In practice, though, a final Brexit deal - which both sides want to reach - will have to return to the Irish border issue. “Nothing is agreed until everything is agreed,” as the latest mantra from Downing Street goes.
In her commitment to avoid any future customs barrier between Northern Ireland and the rest of the UK, however, Ms. May has appeared to tie her hands in one crucial respect.
If it is to keep its promises, the UK’s efforts to avoid a hard border in Ireland will have to be part and parcel with whatever it does across all of the British Isles. “The UK’s intention is to achieve these objectives through the overall EU-UK relationship,” as the agreement puts it innocently.
The government has ruled out remaining in the European single market in a Norway-style deal, an issue on which few believe a U-turn is remotely viable save for an unprecedented shift in public opinion.
Some believe the government will therefore push for a deal that takes Britain out of the single market in technical terms, but in reality binds it to the same rules and regulations.
London has toyed with attempts to stake out a more minimalistic interpretation of which rules and regulations are absolutely necessary to avoid a hard Irish border. But this has had no truck with Brussels, which insists its regulatory integrity cannot be compromised on any goods going back and forth across the Irish land border.
Many doubt, however, that Ms. May will be able to pass off such a gambit - sometimes described as ‘Brexit in name only’ - to her ministers. Most Brexiteers in the government want the UK to stake out its own regulatory path.
“The plan for the Irish border doesn’t add up, and everyone knows that,” says Charles Grant, director of the Centre for European reform. “There will have to be a hard border of some sort.”
The government, in that case, may have to come up with another fudge. “The British will take their promise not to establish a hard border in a vague way,” Mr. Grant told The World Weekly, “perhaps getting around it by saying they simply promised there would be no physical barriers, and so on.”
Haunted by the past
The apparent lack of serious resistance from the Brexiteers in Ms. May’s cabinet seems to bear out Mr. Grant’s predictions.
Unlike some hardline backbench MPs who favour a clean break from the EU, the most influential Brexiteers such as Boris Johnson, the foreign secretary, and Michael Gove, the environmental secretary, have warmed to plans for a smoother transition. But even they are known to favour Britain staking out its own path on regulations after Brexit.
Mr. Johnson and Mr. Gove’s previous behaviour suggests they would be putting up a fight if they suspected a back-door plan for a ‘Brexit in name only’ was being hatched.
Nonetheless, few believe that Ms. May and her cabinet are consciously planning a major reversal on their Irish border commitment, even if that is where things are heading. Such a move risks a massive hit to the government’s international standing, and would likely spark a furore over whether it would be in violation of the Good Friday Agreement.
Theresa May is pushing for a “bespoke deal” on post-Brexit trade with the EU, while Brussels continues to insist London cannot “cherry-pick” the benefits of EU membership.
Many have been quick to point out that the two positions are not entirely incompatible, difficult as it may be to reach a compromise. But it is hard to see how far the negotiations can go before the big unanswered question from 'phase one' comes back to bite.
Chief EU negotiator Michel Barnier told Prospect magazine this week that there is “no way” that Britain could be granted a sort of quasi-membership of the single market while reaping the benefits of a more relaxed, Canada-style relationship.
The cabinet’s Brexit committee, meanwhile, has agreed that Britain should diverge from EU regulations gradually. Britain’s negotiators are said to be devising a practical way to enshrine this in the final deal.
Many have pointed to the inherent bureaucratic and economic difficulties such a plan would create. Businesses and the civil service are said to be reticent towards the difficulties of implementing repeated moves away from existing EU rules rather than one clean break. Brexiteers, on the other hand, would respond that such hiccups will be outweighed by the benefits of the reforms they implement.
Yet such concerns seem to pale in comparison to what might arise once Britain’s wish to ‘diverge’ further from the EU runs up against its commitments on the Irish border.
Government Brexiteers are said to be wary of any deal on divergence which leaves Britain in a “Swiss trap”, a reference to Switzerland’s arrangement with the EU whereby breaking one clause of its numerous bilateral agreements with Brussels leads to the whole relationship defaulting. But they may walk into a new trap altogether if the Irish border issue remains parked in ‘phase one’ as it appears to be.
Theresa May has hailed the start of a new chapter in the Brexit negotiations, but she may find herself going back to the drawing board before too long.