Patrick Smyth: Mixed signals from Brussels on the border

There was confusion after last week’s summit about whether sufficient progress had been made

European Union chief Brexit negotiator Michel Barnier and European Commission president Jean-Claude Juncker: in some eyes, achievements are being made on the road to Brexit.  Photograph: Dario Pignatelli/Reuters

European Union chief Brexit negotiator Michel Barnier and European Commission president Jean-Claude Juncker: in some eyes, achievements are being made on the road to Brexit. Photograph: Dario Pignatelli/Reuters

 

When John Campbell came across the European Commission’s new explanatory Brexit “fact sheet” he did a double take.

Packing up his bags at Friday’s summit, the BBC Northern Ireland Brexit correspondent had accidentally come across what could appear to be an acknowledgment by the commission that the UK had done as much as it could on safeguarding the “frictionless border” in the first phase of Brexit talks.

That was certainly not a view that Irish officials and leaders have been taking during the summit – they are insisting the UK has to do much more between now and December to spell out exactly how it proposes to achieve that.

Everything hinges on “sufficient progress”, and what that elusive but highly important phrase means.

The three main strands of the Brexit phase-one “divorce” talks – citizens’ rights, the UK’s Brexit bill and Ireland – are all about inching across that notional bar to allow the UK and EU to proceed to second-phase discussions on their future relationship.

Not, you understand, that these problems will be entirely resolved, just that “sufficient progress” in the eyes of chief EU negotiator Michel Barnier, and then EU leaders, will have been achieved.

All that those of us who are watching this process closely know is what we are told – “we’re not there yet” in any of the three strands. We’ll probably make it by December, last week’s summit leaders said.

And we’re closest, perhaps, in citizens’ rights, although the thorny issue of who will protect them and the role of the European Court of Justice is still yet to be resolved. We have miles to go on the Brexit bill.

Common Travel Area

On Ireland, we are told there is progress. The safeguarding of the Common Travel Area is agreed, and requires only new text, while the process of “mapping out” the 140 areas of cross-Border co-operation, both institutions and programmes, is well under way. Most of these are in some form fruit of the Belfast Agreement, to which all are deeply attached, and underpinned in some way by EU law. Both the UK and Ireland are determined to see them preserved – what must be discussed is how.

And then there’s the Border. Although the UK has repeatedly said it is determined to maintain a frictionless border “without hard infrastructure”, the discussion of how that would be achieved seemed to have been shelved.

Both the UK Brexit secretary David Davis and Michel Barnier had suggested, without any demur from Dublin, that there were issues about the Border that could not be resolved decisively in phase-one talks because they depend on what trade relationship the EU and UK would end up with. The Border, it seemed to many of us, was a phase-two issue and so would not feature in the “sufficient progress” calculation.

Not so, this surprised reporter was told very categorically two weeks ago by an Irish source. “The Border has always been a phase-one issue,” he said. And since then both the Taoiseach and Minister for Foreign Affairs have weighed in demanding publicly that the UK must explain in specific detail how it intends to preserve the frictionless Border.

Davis’s interpretation of “sufficient progress” has been radically different. He told the Commons last week that he believes that the EU was beginning to accept Britain’s argument that progress on the future of the Border is impossible before talks about trade and customs are under way.

Northern Ireland

“I think that, over time, the European Union has come to a similar view,” he claimed, “although it may never have said so explicitly. I do not want to predict what the conclusions will say when they come out on Friday [at the EU summit], but I suspect they will pay proper attention to the fact that we have made quite a lot of progress on Northern Ireland, possibly as much as we can.”

He was wrong about the summit conclusions which insisted that “as regards avoidance of a hard border . . . the EU is expecting the UK to present and commit to flexible and imaginative solutions called for by the unique situation of Ireland”. Not in phase two.

Nor has the commission in any way suggested it feels sufficient progress has been made on the Border yet.

But Davis might well feel vindicated by the commission’s new “fact sheet” which is most specific that while the Common Travel Area and the cross-Border co-operation are part of phase one, the Border issue is part of the phase-two discussions. It describes the process thus:

“Once there has been sufficient progress in phase one, phase two may begin.

“Phase two – find flexible and imaginative solutions with respect to the EU’s legal order with the aim of avoiding a hard border on the island of Ireland.”

In theory the fact sheet’s interpretation does not matter. It is the commission’s Brexit task force and EU ministers which determine policy. Not press releases.

Road map

But the central issue in this phase of negotiations is what expectations does that task force have of the UK in regard to providing a road map for dealing with the Border, and are they still ad idem with the Irish Government on those expectations. It is understood that they believe they are.

Campbell has been told by the commission the fact sheet may have “oversimplified” the position. And a commission source rationalised the wording to me by suggesting that in fact all the Irish discussions were essentially about the Border – from agricultural inspections to water treatment issues – so the Border had always been both a phase-one and phase-two issue.

I would not, however, be surprised to see the fact sheet redrafted.

All of which leaves the central question unanswered: “what constitutes sufficient progress?”

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