Brexit: The long and winding road

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

The British Union flag and European Union flag outside parliament in London, Britain, 12 December 2017. [Andy Rain/EPA/EFE]

‘Live horse and you’ll get grass’ is an old Irish proverb used in the context of vague promises of future benefits. This is precisely where Ireland stands with the vague promises on the Irish border issue, writes Dick Roche.

Dick Roche is a former Fianna Fáil politician. He was the minister of state for European affairs when Ireland conducted the two referendums on the Treaty of Lisbon of the European Union in 2008 and 2009.

The Joint Report on which the EU and United Kingdom negotiators ‘signed off’ on Friday 8 December followed an established pattern: faced with the challenge of squaring a variety of circles and the looming deadline of the December European Council the drafters fell back on the tried and proven formula of using strategic ambiguity to get to the point where President Juncker could announce that “sufficient progress” had been made to move the process forward.

The second paragraph on the opening page of the report makes it clear that the report is not the final position. It includes the caveat that “nothing is agreed until everything is agreed”. It adds some qualifications to this. It provides that “the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full details”.

It also specifies that the report “does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations” and for good measure, adds that the whole thing is “without prejudice to discussions on the framework of the future relationship.”

At the launch of the report Prime Minister May took the view that the deal, which required “give and take” is fair to UK taxpayers. President Juncker declared it represented “sufficient progress” to move the talks process on, calling what had been achieved the “breakthrough we needed”.

The detailed arrangements set out in the report are masterful examples of the ambiguity the EU employs when in a tight corner.

The report devotes 36 paragraphs to the question of citizens’ rights. It charts considerable progress across a range of sensitive issues affecting the EU citizens who live in the UK and their UK counterparts resident in the EU 27.

The rights of these citizens will be enshrined in both EU law and in UK law.

Mrs May put it that EU citizens’ rights are to be “enshrined in UK law and enforced by British courts” omitting to mention the ECJ.

The report recognises the ECJ as “the ultimate arbiter for the interpretation of Union Law.” It provides a mechanism for UK courts and tribunals to refer issues to the ECJ on questions of interpretation for up to 8 years. Where a UK court refers a case to the ECJ it will be bound by the interpretation given.

What will happen where a UK court does not refer a contentious issue to the ECJ is less clear. There are other ambiguities in this section of the Report but overall significant progress is recorded.

The section on the financial settlement, the so-called ‘divorce bill’ is very perscriptive: 40 of the report’s 96 paragraphs are dedicated to this issue.

On the ‘payments side’ it provides that the UK will “contribute to and participate in” EU annual budgets until 2020 as if it were still a member state, will contribute to the financing commitments outstanding at 31 December 2010, honour commitments under the European Development Fund [EDF] the Facility for Refugees in Turkey and the EU Emergency Trust Fund, will remain liable for its share of the Union’s contingent liabilities as established at the date of withdrawal and ‘discuss’ the withdrawal costs of EU Agencies being relocated post Brexit.

The report provides that the UK will receive its share of returns as EDF investments mature, be reimbursed its EIB paid in capital [in 11 annual payments, 10 of €300m and one of €195.9M – starting from the end of 2019] and that the Bank of England will be reimbursed the paid-in capital of the UK in the ECB.

The third element in the Report, the section dealing with ‘Ireland and Northern Ireland’, runs to 15 paragraphs, is shorter and far less specific than the rest of the Report. Its focus is qualitatively different. It has already been the subject of friction.

A lot of space is dedicated to assuring the citizens and businesses of Ireland and of Northern Ireland that the relationships they currently enjoy will be preserved post Brexit.

Undertakings are given that the arrangements put in place by the Good Friday/Belfast Agreement of 1998 will be continued, that there will be no hard border, that the common travel arrangements between the UK and Ireland will continue, that Northern Ireland’s position within the UK will be preserved and that the “integrity of the (UK) internal market and Northern Ireland’s place within it will be protected”.

Overall the United Kingdom is unequivocal in that it remains committed to protecting cooperation between Ireland and Northern Ireland and “to its guarantee of avoiding a hard border” in Ireland.

The report notes that it is the “United Kingdom’s intention to achieve these objectives through the overall EU-UK relationship” that it hopes to negotiate.

A full Free Trade Agreement between the UK and the EU could indeed be a solution but that outcome is not guaranteed.

In the absence of the full Free Trade Agreement a second option is put forward: “the United Kingdom will propose specific solutions to address the unique circumstances of the Island of Ireland.”

There is no clarity as to what these ‘specific solutions’ will entail.  If this is a reference back to the ‘frictionless border solutions’ canvassed in the UK Northern Ireland –Ireland Position Paper it is no more attractive now than when it was first mooted.

The fallback position proposed by the UK, the third option, is to “maintain full alignment with those rules of the Internal Market and Customs Union which now or in the future, support North–South cooperation, the all island economy and the protection of the 1998 Agreement.”

Again there is a caveat, the UK Government includes an undertaking that it “will ensure no new regulatory barriers develop between Northern Ireland and the rest of the UK unless the Northern Ireland Executive and the Assembly agree that distinct arrangements are appropriate for Northern Ireland”.

While the guarantees and undertakings dealing with the Irish border issue are welcome they are long on aspiration, short on detail and in the case of the third option internally inconsistent. They have a distinct whiff of the old Irish proverb ‘live horse and you’ll get grass’ about them.

President Juncker says he is confident that the EU leaders will agree to move talks forward at this week’s European Council. The will to move on at this week’s Council seems assured. However as the spat between the Irish & UK Governments arising from UK Brexit Secretary’s clumsy interpretation of the caveats mentioned earlier illustrates there is still plenty of space for friction.

As Council President Tusk pointed out, when welcoming agreement on the report, it covers what is supposed to be the ‘easy part’ of the UK withdrawal process.

The fact that as yet we still do not have clarity as to what the ‘destination’ sought by the UK looks like, the internal problems within the UK Government demonstrated by the defeat of its Brexit legislation in the Commons on the eve of this week’s crucial EU Council, the shaky position in other capitals, not least in Dublin and indeed in Berlin and the mammoth nature of the next phase of negotiations suggest we face into a long and bumpy road before we get to the end game on Brexit.

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