May could be preparing difficult Brexit medicine for unionists

The promise in the May Chequers letter that the UK will agree to "operational legal text" for an Irish backstop will be welcome in Dublin and Brussels. Albeit that it is a promise already made repeatedly since the December joint agreement in formulations as vague as the latest.

The backstop remains the single most difficult obstacle faced in the talks process, the stumbling block upon which we may yet fall into a “no-deal”, no-transition, hard Brexit nightmare scenario.

It is the fallback that is to be part of the legal text of the divorce treaty, the Withdrawal Agreement (WA), supposedly by October, to guarantee a frictionless border in Ireland should an overall EU-UK framework future relationship prove impossible to agree. No backstop language, the EU insists, means no WA and no transition.

In parallel the UK and EU are discussing separately a future relationship framework for a political declaration to accompany the WA, also to be agreed in October. But even if agreed by October, a backstop text remains necessary.

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The May letter promises a commitment to a backstop, not to the text elaborated in March by the EU as its contested interpretation of the December joint agreement.

And it is again underpinned as a commitment by a confident May insistence that it “would not need to be brought into effect” because it will be superseded by an overall future agreement. That is necessary to placate unionists’ fears of the Irish Sea controls that all sides acknowledge privately are an inevitable corollary of a deal which treats the North separately.

It is unclear from the May paper whether the UK is prepared to countenance even the idea of temporary Irish Sea controls for the sake of getting agreement on the backstop.

But the tone of the note may suggest that it now is, and the union's chief negotiator Michel Barnier has been doing what he can to help make it more palatable by "de-dramatising" the significance and scale of such checks.

Constitutional status

He says there is no intention of impinging on the constitutional status of the North, insisting they would be in many respects a technical continuation of regimes currently already in place. The next weeks should see whether such sugar-soaping is enough.

In truth there is little of substance in the UK paper on its future relationship with the EU that has not been floated by May before – and previously also dismissed by the commission task force as unacceptable attempts to cherry pick the single market. And specifically in relation to the means of addressing the backstop challenge.

The backstop requires the North to remain aligned with the EU’s single market and customs union rules in relevant sectors. Most recently, London suggested that the way to tackle the problem of potential customs controls in the Irish Sea would be to extend that alignment to the whole of the UK on a temporary basis. Until, that is, an overall future framework could be agreed.

The backstop requires the North to remain aligned with the EU's single market and customs union rules in relevant sectors

No way, Michel Barnier replied. If the EU was prepared to allow single market cherrypicking – he didn't use the word, but his meaning was clear – in Northern Ireland, it was only because the union was determined to preserve the Belfast Agreement, and peace. The North, not least because of its small size, was and is a case apart where the EU could suspend its rules.

In now suggesting that the UK sees its future relationship with the EU in similar terms, May has effectively repackaged the earlier proposal – membership of a customs union and of the single market for goods but not services, a la backstop – and would seem unlikely to prompt any other response from the EU.

Window of opportunity

But there is in the talks dynamic a new window of opportunity that may allow the “impossible” to remain on the table, if not as a viable outcome, at least as a basis for continuing discussion. In that space an opportunity needs to be found urgently by both sides to address the “temporary” problem of the backstop so that the WA, and hence the wider talks, are not jeopardised.

By minimising its permanence, Irish and EU negotiators will be hoping, May may be preparing the ground for some difficult medicine for the unionists.

For some British commentators her victory at Chequers over the Brexiters in her cabinet reflected a strategic decision on their part to keep their powder dry for later battles on the nature of the future trade relationship.

The preoccupation of Michael Gove and Liam Fox especially is just to get Brexit over the line. "They will get to March 29th regroup and start the fight again," the Financial Times suggests.

That means swallowing their objections to obstacles on the route to an agreement on the WA by October, including, if necessary, to an uncomfortable backstop, whatever their unionist allies might say. We’ll see.

Patrick Smyth is Europe Editor