Brexit battle lines drawn up, or the storm before the calm and other cliches

On the face of it,  the prospects are looking grim again but it may only mean that they’re getting down to business – at last- again. The BBC headlines “Brexit trade talks battle lines drawn.”  And the FT reports  that  the EU –  the  authoritative  Council of the nation states and not just the Commission of bureaucrats –  are taking a hard line for future negotiations with the UK –  slapping down Theresa May’s  supposedly emollient  attempt last week as  “cherry picking, ” which is a  swearword in EU terms.


Donald Tusk, the European Council president, circulated guidelines instructing EU negotiators to take an austere approach to trade, excluding the potential for “mutual recognition” of standards across sectors such as chemicals, pharmaceuticals or financial services. “The European Council has to take into account the repeatedly stated positions of the UK, which limit the depth of such a future partnership. Being outside the customs union and the single market will inevitably lead to frictions…  Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. This unfortunately will have negative economic consequences.”The guidelines.. are the most detailed presentation yet of the EU’s goals for future relations, cast as a response to London’s proposals. (They) sketch an economic relationship based around a free-trade agreement that could maintain zero tariffs and quotas on goods, but stop short of the kind of “dynamic” alignment of market rules sought by Britain.

The Irish Times version of the story says the guidelines…

will require an agreement to be reached on a withdrawal treaty before the EU would be willing to agree terms on a future relationship..

While the guidelines will not include any new or substantive measures concerning Ireland or the Irish Border, the EU is expected to stress the importance of the UK providing more detailed proposals about its intentions for the Border in commentary around the publication of the guidelines.

This is what Mrs May conspicuously  failed to do in her  bid to meet the EU half way last week,  while specifically  rejecting key elements of the draft agreement. And yet she claimed:

 We are close to agreement on the terms of an implementation period

Oh really? And she went on to describe what the Commission condemns  as cherry picking. But if it is ever going to work what else can it be?

Existing models for economic partnership either do not deliver the ambition we need or impose unsustainable constraints on our democracy.

I want to be straight with people – because the reality is that we all need to face up to some hard facts.We are leaving the single market.  Life is going to be different. In certain ways, our access to each other’s markets will be less than it is now.

When we leave the EU, the Withdrawal Bill will bring EU law into UK law. That means cases will be determined in our courts. But, where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts.

By the way, would * looking at ECJ judgments”  apply to Irish /EU citizens rights in Northern Ireland? If ECJ judgments were to apply to trade regulations why not  to them?

I have consistently put upholding the Belfast Agreement at the heart of the UK’s approach… We have been clear all along that we don’t want to go back to a hard border in Ireland. We have ruled out any physical infrastructure at the border, or any related checks and controls. But it is not good enough to say, ‘We won’t introduce a hard border; if the EU forces Ireland to do it, that’s down to them’.

Just as it would be unacceptable to go back to a hard border between Northern Ireland and Ireland, it would also be unacceptable to break up the United Kingdom’s own common market by creating a customs and regulatory border down the Irish Sea.

We chose to leave; we have a responsibility to help find a solution. But we can’t do it on our own. It is for all of us to work together. And the Taoiseach and I agreed when we met recently that our teams and the Commission should now do just that.

Leo Varadkar begged to differ except over talking about the North as  he delivered  the first slap down to May.

There won’t be tripartite or three-way talks.

“What will happen is that there will be talks between the EU 27 and the UK, and Ireland is part of the EU 27 and we’re much stronger by the way as one of 27.”

But  he added, consultations could take place between the two governments about issues that are unique to Ireland.

“We will of course have negotiations about what could be done to avoid a hard border, but what we won’t be getting into is a negotiation with the UK, or a three-way negotiation.”.

But is it possible to discuss NI without talking about the big picture  on a free trade deal and a customs relationship?

On  the border question and indeed Brexit as a whole, Theresa  May  is more  in alignment with Arlene Foster and Leo Vardkar with Mary Lou McDonald  when  both PMs  need to be closer to each other. So far they haven’t managed it. Not that anything Sinn Fein or the DUP say or do matters too much at the moment. Both governments would be in their present positions if neither party existed, (pause a  moment to reflect on that). It would be a different matter if the two in a powersharing government were speaking out jointly on behalf of a community whose destiny in so many respects is being shaped over their heads.


Is there a way through?  The pro-Remain FT is searching frantically. Gideon Rachman  punctures the idea cherished in Dublin  today but not  so recently over their bailout, that everything the EU declares is a believer’s idea of holy writ .

The EU is perfectly capable of creating new laws — or interpreting current ones with extreme flexibility — when it is politically necessary. There are many examples of this flexibility in action. France and Germany broke the EU’s Stability and Growth pact — rather than accept legally mandated fines for breaking its budget-deficit rules. There was a “no bailout” clause for the euro, but Greece was bailed out.

If ever there was one, our own case is made for flexibility.  At last, somebody makes a point that I’ve been arguing for weeks.  Ronan McCrea an Irish academic lawyer at UCL argues in the Irish Times that, thanks Brexit and through no fault of their own the Irish are as “boxed in” as the Brits.

The problem is that both the UK and Irish governments are now boxed in. The UK government cannot now admit that, despite its protestations, it never intended to be bound by a promise to avoid a hard border.

The Irish Government, having marched its European allies to the top of the hill and made an open border between North and South a condition of the progression of talks, cannot now admit that for both Northern Ireland and the Republic, fewer east-west economic restrictions is a more important economic goal than an open border between North and South.

Yet, at the same time, this is not an unmitigated triumph for Irish policy. By relying on its status as a loyal EU member Ireland has managed hold the British government to its promises in relation to a hard border in a way that would have otherwise been impossible. But it has also meant that the chances of a hard Brexit have been increased.

The unpleasant truth is that for Brexiteers, economic damage to Northern Ireland and some undermining of the Belfast Agreement was a price worth paying to get to their promised land of a UK outside the EU.


On the other hand, it is true that free trade and the nature of the Border were not actually part of the Belfast Agreement. Joint EU membership was assumed in the negotiations in 1998 and made life in Border communities and the operation of cross-Border bodies easier. But customs barriers between North and South were not among the many issues and injustices that caused the Northern Ireland conflict to erupt.

McCrea is surely wrong on one thing. The UK did regard themselves as pledged against a hard border. It was just that they weren’t committed to no border at all and like most of the rest of it, were  busking  their way through, compared to the EU’s over schematic approaching.

So how do our two beloved states get out of the box?  This is where the get out of gaol card turns into complicated play. Are you surprised?.  9 Sandbu revives the option of association with EFTA as recommended for Northern Ireland a year ago as a way of overcoming the worst of the border problem.

  The big question on the UK side is whether May will eventually also soften her opposition to a customs union. Her reiterated promise of no border infrastructure in Ireland requires it. That suggests the British government needs to put in significant technical work — and quickly — to demonstrate how it foresees fulfilling that promise, or signal to the EU that it will align on customs too. If it does, we can expect the EU agreeing to sign off on transition and withdrawal arrangements soon, and move on to the future trade relationship. The big question on the EU side is whether, if the UK does indeed propose something like the single market and customs union for goods trade only, it will accept. For the simple reason that the UK has not proposed this yet, and officially rules out a customs union, the EU member states probably do not yet know the answer themselves.

But she’ll have go further on customs.


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