For all the sound and fury over Brexit, all is not necessarily lost

Six months to go, and we still don’t know where we’re going. Following the Salzburg summit, the mood has certainly darkened. The European Union has been discussing plans to step-up its no deal planning.

In London, the Government has now finished rolling out its suite of technical notices advising businesses and households on what ‘no deal’ might actually mean.

Some of this is doubtless bluff. It is in the interest of both sides to convince the other that it is ready for a breakdown in talks. But there is also an element of genuine contingency planning here. An awful lot remains to be done if a Brexit deal is to be struck.

So, let’s try to break this down a little to get a handle on what needs to be done. First and foremost, a deal needs to be struck in Brussels. And the mood music, at least, has changed for the worse post-Salzburg. While Theresa May returned to London and demanded respect from the European Union, the tone from Paris has become increasingly rancorous.

Finance Minister Bruno Le Maire claimed recently, and rather curiously, that accepting Chequers would mean ‘the end of Europe,’ attacking the idea that the UK could ‘exit the European Union and keep all the benefits of the single market.’

None of this bodes well. But things are not necessarily as bad as they seem. For one thing, it is normal for EU negotiations to become acrimonious, and to go to the wire. Not least, this is because it is only at the eleventh hour that national leaders – the heads of state and government who make up the European Council – become properly involved.

The Brexit negotiations, remember, have to date been handled by technocrats in brissels and national capitals -people with a detailed knowledge of the EU’s legal ‘acquis’ but less sensitivity to the larger geopolitical trade – offs that Brexit might imply.

It is only when the ‘chiefs’ are properly engaged that big picture considerations might move centre stage. And it is at this stage that kinds of trade- off that enable deal making become possible.

This is not to underplay the substantive issues still to be resolved, and in particular the substantive issue on which the whole process may founder – Northern Ireland. This comes down to borders.

Theresa May’s insistence that the United Kingdom will leave both the single market and the customs union, coupled with the EU’s refusal to accept both the Government’s customs plan and its proposal to remain in the single market for goods only, means that customs and regulatory checks will be needed between the UK and the EU unless a compromise can be reached.

Brussels has offered to give Northern Ireland a special status, in the customs union and parts of the single market, to avoid the need for a border between it and the Republic. But, as a result, it is insisting that checks will then need to be carried out between Northern Ireland and the rest of the UK – something that many MPs are unwilling to tolerate.

Experience suggests that a lot can be achieved by ambiguous drafting, and that a Withdrawal Agreement could be agreed which satisfies both sides. However, it is hard to see how even the most accomplished lawyer can achieve what is needed – a form of words that persuades Dublin that a backstop can and will be deployed while reassuring Conservative and Democratic Unionist Party MPs that it won’t. Even if acceptable language is agreed, it could merely spawn further disagreement over its precise meaning in future – just like what happened with the Joint Report last December.

Yet all is not lost. Behind the harsh words following Salzburg, there were hints of a way forward. To understand how, we need to go back to the Joint Report agreed between the UK and the EU last December.

Paragraph 50 of this document stated that the UK government would ensure that no new regulatory barriers would be permitted between Northern Ireland and the rest of the UK ‘unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland’.

No barriers, in other words, unless politicians in the province agree to them. And the next sentence delivered a small sweetener: ‘In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market’. Even in the event of no barriers, in other words, businesses in the province would not take a hit.

In the succeeding nine months, these provisions have been largely overlooked, buried under the swirl of claim and counterclaim from each side about bad faith. Yet the ideas of the Joint Report popped up again in a most unexpected place recently.

In the midst of her angry retort to her European colleagues on her return from Salzburg, the Prime Minister declared that ‘no new regulatory barriers should be created between Northern Ireland and the rest of the UK unless the Northern Ireland Executive and Assembly agree’.

All of which implies that barriers of the kind the positions of the UK and EU imply must be in place are at least conceivable. And indeed, even the Institute of Economic Affairs, the think tank perhaps most liked by Tory Brexiteers, acknowledged in its recent proposals for a post Brexit relationship with the EU that ‘this may entail border inspections at designated posts at ports for imports of meat and animal products to Northern Ireland from mainland Great Britain’.

It’s worth saying that there is more to the Irish question than simply the question of checks and border infrastructure. Also to be resolved is the thorny question of whether the UK Government will be in a position to accept regulatory checks to ensure compliance with EU law. With Brexit, things are never as simple as they may appear.

Yet, for all the sound and fury, all is not necessarily lost. Both sides, remember, want a deal. And there may be more wiggle room around the Irish issue than at first meets the eye.

Of course, we do not know whether any deal could find a majority in the divided and belligerent British parliament. But one step at a time. The next six months certainly won’t be boring.

By Anand Menon, director The UK in a Changing Europe and professor of European politics and foreign affairs at King’s College London. This piece originally featured in the Telegraph.

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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