Irish Border issue is a legitimate threat to the Brexit talks

One senior EU official is very pessimistic. The impasse over legally copperfastening the UK's no-hard-Border commitment could shortly, single-handedly, bring the Brexit talks process to a crashing halt, the source warns.

Could the Border issue be the rock on which the negotiations founder, propelling the UK into a no-deal departure?

It's an apocalyptic view not universally shared in Brussels but, as my colleague Pat Leahy reported recently, Dublin is also increasingly gloomy. "The Government fears that patience with the UK is running out in EU capitals."

It expects difficulties translating December’s guarantees on the Border into a legally binding agreement.

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“The British positions are irreconcilable,” a senior source in Dublin told him. “And we have reached the point where fudging that is no longer tenable.”

That view is echoed by the commission's Brexit taskforce. Chief negotiator Michel Barnier put it bluntly last week: "It is important to tell the truth. A UK decision to leave the single market and the customs union would make border checks unavoidable."

In the meantime the commission has to finalise a Withdrawal Agreement (WA), the so-called divorce treaty, whose substance was agreed at the end of phase-one talks in December, and which puts into legalese the agreements on citizens’ rights, the divorce bill, the Irish Border, and the Common Travel Area.

To prevent “backsliding”, the EU insists that discussions on the “future relationship” will not go ahead unless the WA is signed off on. That means agreement – and soon – on no-hard-Border language.

Much of the WA text is drafted and diplomats say it should not prove problematic with the UK – some text on transition sanctions against UK breaches of single market rules has already been toned down.

But the text on the Border has proved difficult to draft and the UK is showing signs of buyer’s remorse over what it agreed in December. Differences of interpretation, they say, but this is precisely what the taskforce and the Irish feared, and the reason for the “no backsliding” provision.

Part of the problem lies in the ambiguity of the agreement, which some see as a “fudge” to allow talks to proceed on the future EU/UK relationship on which, however, the UK’s preferred Border options are entirely dependent.

Regulatory alignment

But UK undertakings have to be given legal effect in the WA – that can only be done, the taskforce argues, by inserting language based on the British fallback position – “backstop” is how Irish diplomats prefer to describe it. It does not hinge on a future deal, and so has a degree of certainty to it which is legally expressible.

The fallback position is described thus in the December agreement: “In the absence of agreed solutions, the UK will maintain full alignment with those rules of the internal market and the customs union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 [Belfast] Agreement.”

This is problematic in several respects: firstly, the language does not make explicitly clear that we are talking here of a commitment exclusively to continued North-South regulatory alignment, a special position for the North. It is not referring, we are led to believe, to a broader UK/EU regulatory alignment, which the Irish would prefer, and which the UK has suggested they would like to make the basis of a future-relationship deal with the EU.

One problem with the December deal is that there is a gulf over the meaning of 'full alignment' of regulatory regimes

The former, allowing a regulatory divergence between Northern Ireland and Britain, would inevitably necessitate border controls down the Irish Sea. Not making that explicit was probably done to placate the DUP.

But the uncertainty is compounded in the next paragraph: “In the absence of agreed solutions ... the UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK, unless, consistent with the 1998 Agreement, and the NI Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the UK will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the UK internal market. “

Note the reference to the consent of the “executive”, now deceased, as reassurance to the DUP, and to the promise “in all circumstances” to keep “unfettered access” to UK markets, in other words, no Border on the Irish Sea (an all-Ireland borderless market should mean in this context free access to the UK for Southern-originated goods).

A gulf

It is an assurance given by the UK concerning exclusively its internal arrangements – EU negotiators may believe it impossible to reconcile with the previous paragraph, or with leaving the customs union, but if the UK wants to sign up to it, so be it. It’s their problem to reconcile the irreconcilable. The taskforce remains determined, however, to keep them to their undertakings.

The other problem with the December deal is that there is a gulf over the meaning of “full alignment” of regulatory regimes.

Brexit secretary David Davis insisted in December that what mattered was not the same rules but the "same outcomes" from any regime. It was significant that the divorce agreement referred to "full alignment", he said, "changed from 'no divergence', and that's the point. 'No divergence' would have meant taking cut-and-paste rules."

He claimed that full alignment would only affect a few sectors, such as agriculture, road and rail, and would mean the UK achieving certain outcomes but not necessarily in the same way as the EU did.

The EU insists not only on the same rules and in all sectors, but the same enforcement mechanisms, including reference to the European Court of Justice.

The UK’s attempt to reset and renegotiate the terms of the December deal represent a real hurdle to agreement on the WA, and so to the opening of discussions of the future EU/UK relationship. They will find a remarkably united 27 determined not to yield . Whether the talks have a future now will depend on a serious reappraisal by London of its impossible red lines.