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Henrik Montgomery/TT
back to the backstop

We have some sort of UK proposals for the Irish border - so now what?

In short: your guess is as good as ours.

THE UK HAS finally submitted proposals for what could replace the backstop – but we’re far from an EU Withdrawal Agreement or avoiding an extension. 

Although the EU had welcomed written proposals – which arrived in the form of a legal text, an explanatory note, and a letter to European Commission President – the welcome has been cautious.

Taoiseach Leo Varadkar said that they “fell short” of the areas the backstop covered – which is technically true. In the House of Commons this week, Boris Johnson said that his proposal meant that regulatory checks (30%) and SPS checks  (30%) wouldn’t be needed when crossing the border – leaving 40% of checks for customs and VAT, etc.

The UK government is arguing customs checks can take place at business premises away from the border, and that most of the “small number of physical checks” will take place away from the border. 

This has confused some in the EU – Leo Varadkar among them – as it relies on a certain level of trust that has been lost between the EU and UK after three years of Brexit talks.

Tánaiste Simon Coveney and Minister of State for European Affairs Helen McEntee have both signalled a cautious cause for optimism. 

“There was a lot of good things in it and we need to build on that,” McEntee said on RTÉ’s Six-One News, referencing the all-island regulatory zone that “we hadn’t had agreement on before”. 

“It’s not Mission Impossible,” Coveney said yesterday.

“Let’s not forget that we have a deal that we know works… The UK wants to change that deal, and while I believe we can change that approach, the outcome must be the same.” 

On Friday evening, the European Commission said Boris Johnson’s proposals do “not provide a basis for concluding an agreement” – meaning it was up to Johnson to compromise further.

Negotiations continue

Despite Downing Street sources initially painting the Prime Minister’s suggestions as take-it-or-leave-it proposals, embargoed versions of Johnson’s conference speech reportedly contained the words “final offer” – this was rowed back on to instead describe them as a “basis for discussion”.

Negotiations were continuing between Brussels and London in order to get something that might be acceptable to both sides – but already things seem tense after the UK’s chief negotiator David Frost reportedly offered to stay in Brussels over the weekend but the EU said no for fear of the perception that negotiations were ongoing over the proposals. They later released a statement saying Johnson’s proposals didn’t go far enough.

The crux of the problem

The only way of avoiding border checks – other than the EU allowing Northern Ireland to become a back-door for rules and standards – is to keep Northern Ireland (or the whole of the UK) in a customs union.

But Brexiteers, the DUP and Boris Johnson have said that the UK, including Northern Ireland, will leave the Customs Union in order to strike up free trade deals and set their own set of rules (Brexit was about British sovereignty, remember).

So as it stands, barring a massive politically-costly climbdown by one or both sides, a no-deal Brexit is still the most likely outcome. There isn’t a compromise on whether Northern Ireland should be in the Customs Union – they’re either in or out.

Two days in Belgium

Any possible changes to the UK’s proposals would need to be ironed out before the European Council summit on 17-18 October, where all EU leaders will gather.

Johnson also said in parliament this week that he would consider giving MPs a vote on his self-proclaimed “fair and reasonable” proposals if they’re to be put to Europe – though he said he would prefer to put an entire Brexit deal before the House of Commons (it would probably have a better chance of passing as a full, final deal). 

If all this is successful, Johnson would be able to bring that back to MPs (again, maybe) and ask them to approve it by 19 October.

Why the 19 October?

That’s the date contained in Labour MP Hilary Benn’s legislation, which was forced through by opposition MPs and Tory rebels trying to ward off a no-deal in the narrow window they had in parliament before the unlawful prorogation at the start of September.

It says that the Prime Minister must request an extension to Article 50, which would push back the date the UK leaves the EU by at least three months, if an agreement is not approved by parliament by the 19 October.

That request, if approved by the EU, could reset the deadline to 31 January – though some say it would need to be longer than this. If an extension is granted for an election in the UK, it would most likely take place in November/December, so an extension until the end of January isn’t enough time to strike a Brexit deal with a new government, and get it passed through parliament. 

Do or die

But Boris Johnson has repeatedly said he will not ask the EU for that delay under his “do or die” commitment to leave by the current Halloween deadline. His Twitter account has been sending out daily pledges to leave by 31 October. 

Meanwhile, his opponents have threatened another battle in the Supreme Court if he fails to act on the Benn legislation – all sorts of scenarios are being thought out.

Another scenario being discussed is the all-important letter to Brussels instead being written by Cabinet Secretary Sir Mark Sedwill or UK ambassador to the EU Sir Tim Barrow.

This, if accepted by the EU, would allow the Prime Minister to save some face by saying he personally did not request the delay, while preventing the UK dropping out without a deal.

Parliamentary breakthrough

But if Boris Johnson is successful at the summit and brings back a deal, it would next need to be approved by MPs who rejected Theresa May’s Withdrawal Agreement three times.

Johnson has decimated the minority government backed up by the DUP which he inherited from his predecessor, by expelling 21 Tories who rebelled against him (he had lost his majority before this, however).

He and his government have also irked MPs across the chamber on numerous occasions – with Attorney General Geoffrey Cox calling parliament “dead as dead can be”.

But, with the looming prospects of a no-deal, he might just manage to get the Withdrawal Agreement over the line. In the three votes held on the Brexit divorce deal, those in favour of it have increased each time.

The DUP has already signalled its approval for the new proposals (though they’re the only party in Northern Ireland to do so).

Steve Baker, the chairman of the European Research Group of hardline Tory Brexiteers that vehemently opposed Theresa May’s agreement, also suggested he could back a deal.

Labour leader Jeremy Corbyn said none of his MPs could support Johnson’s “reckless deal”, which he said would jeopardise the Good Friday Agreement.

But any support for the deal could be scuppered by any changes to the proposals needed to get the EU on side – ie, another compromise from Johnson on the remaining 40% of checks, which would amount to a backstop.

Another parliament

Even if Mr Johnson is successful in the UK, the European Parliament must also give its consent before any deal can be fully ratified.

His current proposals have been flat-out rejected by the Brexit Steering Group, which branded them as gravely concerning and said they did not come “even remotely” close to a compromise.

- with reporting by PA News

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