Between phase one and two: Brexit and its discontents

March 2018 is an important month in the Brexit negotiations following the publication, on 28 February, of the draft Withdrawal Agreement. The Commission’s draft was intended to put the December 2017 Joint Report into a legal framework. The latter signalled the willingness of the EU27 to move into Phase Two, and discuss the future relationship with the UK.

The timing of the publication of the draft was significant, as it pre-dated Theresa May’s speech on the future relationship, scheduled for Friday 2 March.  The EU27 had repeatedly called for clarity on what the UK was looking for in its future relationship before beginning Phase Two negotiations.

May’s speech was followed by the publication of President Tusk’s negotiating guidelines on 7 March, and the European Council in March is the next staging post in the Brexit saga. I will concentrate here on two things: the question of the Irish border and the future trajectory of the negotiations.

The invisible Irish border

The Irish border remains one of the most intractable and politically toxic issues in the Brexit negotiations. It has developed a very active twitter life of its own to ensure that its point of view is not forgotten in the discussions over its future.

Ireland as a member state is determined to ensure that Brexit does not lead to the reintroduction of a visible border, with physical infrastructure, on the island of Ireland, a so-called ‘hard border’.

Ireland has the full support of the other member states, and the European institutions, in this and has managed the transform the Good Friday Agreement (GFA) into a treaty to be protected by the combined weight of the EU.

The UK Government shares the commitment to the maintenance of an invisible border and to the protection of the Good Friday Agreement, notwithstanding attacks on it from the hard Brexiteers.

The problem lies in the incompatibility of the preferences of the UK Government; by leaving the customs union, single market and jurisdiction of the European Court of Justice (ECJ), it is making finding workable solutions to the border problem extremely difficult.

The Joint Report from the EU’s taskforce and the UK offered a fudge on the border question, essentially proposing that the challenge of the Irish border could be addressed thus:

  • within the terms of the EU-UK future relationship;
  • if this was insufficient, the UK Government would commit to achieve this by particular bespoke solutions;
  • if a and b prove insufficient, then the UK Government would agree that ‘the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement’ (Joint Report, 8 December 2017).

The Withdrawal Agreement includes a lengthy protocol on Ireland, setting out in great detail what the EU understands as the UK commitment in option (c). There was an immediate response from the UK Government and its supporters, the DUP. The protocol was seen as an attempt to use the Irish border to alter the nature of the UK state and for Ireland to gain leverage over Northern Ireland.

The UK Government is puzzled by the solidity of the support for Ireland and has actively used its diplomatic network across Europe to dilute the Irish position. Interestingly, at the COREPER meeting on the afternoon of the 28 February there was full support for the Irish position, and a Permanent Representative of one of the larger states said, in support of the protocol, that Ireland needed to be protected from the inevitable reaction from the UK.

The Irish Government welcomed the legal backstop in the Withdrawal Agreement, and is adamant that there needs to be a legally binding commitment to no hard border in the UK’s exit treaty. Moreover it has re-stated that its first preference is to find solutions within the future EU-UK relationship and if that is not possible that it awaits the development of detailed UK plans under option (b).

The Irish government, backed by its parliament and society, regards the Irish border as existential and any tangible change to the invisible border as a serious risk to peace. Moreover, those living on the border will simply not give their consent to change.

Ireland is a small state with less than 1% of the EU’s population, yet it is receiving the active support of the European institutions and other member states in the negotiations. It is also determined that efforts by the UK promote a bilateral route are resisted: Ireland will only negotiate with and through the EU machine.

How solid is this support? It is likely to be very solid indeed, as the other member states will not push or corral Ireland into accepting a solution to the border that it cannot live with. So Dublin, and not just Brussels, matters in the next phase of negotiations.

It is noteworthy that President Tusk travelled to Dublin within two days of the publication of the draft European Council Guidelines, and what  he said there is an indication of just how difficult it is for the UK to break open the EU27 consensus on Brexit.

Two remarks were particularly telling. The first was his claim that ‘… in times of trouble, families come together and stand with each other. For the EU27, this is especially true when we talk about Brexit’.

Second, ‘if in London someone assumes that the negotiations will deal with other issues first, before moving to the Irish issue, my response would be: “Ireland first”’. If London fails to heed these words, there is further turbulence ahead in the Brexit negotiations.

The Irish border is one of the most difficult issues on the agenda, but not the only one. Overall there remains a wide expanse between the kind of Brexit deal that the UK wants and what is available from the EU. That gap is glaringly obvious given the divergence between the ask in the Prime Minister’s March speech and the subsequent draft guidelines presented by President Tusk.

The view of the former’s speech in Brussels, and the other capitals, was that the tone had changed but not the substance. The speech contained the same red lines: a reliance on mutual recognition and access to those parts of the acquis and institutional system that suite the UK.

Put simply, the government are still in denial concerning what Brexit means and the kind of future relationship might be available.

The longed-for break-down in EU cohesion has not happened, and will not happen. The paradox of the Brexit negotiations just before the March European Council is that London thinks that the ball is in the EU’s court, whereas the EU sees London’s red lines as the determining factor in the kind of relationship that is available.

All of this leads to the conclusion that the negotiations are entering an even more difficult phase and it seems to me that the government is faced with three unpalatable options.

First, they fail to reach a deal and crash out in March 2019. Second, they achieve a short transition and an agreement that falls well short of Theresa May’s Brexit vision. Three, they move from the red lines and also offer credible workable solutions to the Irish border.

In the latter case, more will be on offer from the EU. The most important take-away from the Brexit process is that it is far easier for a member state to get special treatment and opt-outs.

Once a country moves to the other side of the table it does so on the EU’s terms. It is not at all clear that the British government have understood or acknowledged what it means to be a third country.

By Brigid Laffan, Director and Professor at the Robert Schuman Centre.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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