There is a chink of light at the end of the Brexit tunnel, with negotiators closing in on a solution for the Irish border. It involves buying time and finding a temporary fix before a final trade deal can be done.
It also involves a fair amount of legal and linguistic creativity, to convince the UK it is not signing away its political leverage, while reassuring the EU that the single market remains intact. German Chancellor Angela Merkel called it an “intellectually demanding task”. But as one diplomat put it: “The English language is very flexible.”
The backstop for the Irish border, first proposed last December (see EUROPE 11922), would kick in “unless and until” a permanent solution to keep the border open is found. Both sides hope a future trade deal will do that, and that the backstop will never have to be used.
The problem is that the two sides have been negotiating in parallel, with the UK refusing to engage with the EU’s Northern Ireland-specific plan, saying it is “unacceptable” as it would cleave the UK and “draw a border down the Irish Sea”. Back in June, London suggested a UK-wide temporary customs arrangement that could act as a backstop. The EU, however, is reluctant to grant the UK special market access if the UK is allowed to diverge from single market rules and undercut EU companies (the infamous “level playing field”).
That’s why solving the backstop is so difficult - it is (and always was) a proxy for a future trade deal. Both sides see it that way, even if they don't admit it. Even Chancellor Merkel explicitly linked the two this week. So here’s the triple fudge that negotiators have come up with:
First, the EU has been adjusting the language in its backstop proposal to ensure it is seen as temporary (though there will be no “time limit” or end date). It has also added a reference to a UK-wide temporary customs arrangement, the details of which would be worked out later. One EU source described it as a “two-tier” backstop. Some refer to it as a “backstop to the backstop”. The important thing is that the idea is in the legally binding exit treaty.
Second, they are weighing how to link the exit treaty to a “political declaration” on the future relationship. This is key to convincing the UK to sign up to a backstop: if Theresa May can get iron-clad assurances about a new trade deal, she can more easily sell Eurosceptics on the exit treaty. (What’s in that trade deal is also crucial, but that’s for another day.)
Finally, both sides have been floating the idea of extending the post-Brexit transition period beyond December 2020, for a “matter of months” (which the UK prefers) or up to a year. MEPs have always said a three-year transition was necessary (including in their Brexit resolution last October, see EUROPE 11875). And earlier this year, EU governments argued for the option to be explicitly written into the withdrawal agreement, but the Commission wasn’t keen.
Anyone would be forgiven for getting lost in the linguistic morass, but what’s important is that both sides would have the legal certainty they need: the UK would have its get-out clause from EU rules, and the EU has more time to solve its problems with the British trade proposals.
It’s not over yet. There are “still big gaps” between the two sides, Irish Taoiseach Leo Varadkar said on Thursday. But they are closing. Talks are to resume in the coming days, diplomats said, with EU chief negotiator Mr Barnier then judging whether “definitive progress” has been made, allowing EU leaders to call another summit and sign off on the deal. Whether that happens in November or December- or ever - is still unclear. (Sarah Collins)