The EU risks squandering its last chance to do a deal with Britain

Published on The Telegraph

When it comes to EU negotiations, it is becoming ever clearer that the political consequences of the Supreme Court's ruling on Boris Johnson’s prorogation of Parliament are not particularly significant. Yes, it means that MPs have only lost two weeks, instead of five, to try to influence Brexit. But, more importantly, Parliament can’t really agree on much.

There is no support, at least not yet, for any of the alternatives: a Brexit deal, allowing “no deal”, revoking article 50, an early election or a second referendum. Boris Johnson may have lost his majority, but there isn’t an alternative one ready to replace his government. There is only a majority for extending UK membership, something that doesn't settle anything.

The EU must really consider carefully whether it wants to waste the upcoming month in the hope that Boris is deposed, opening the way for either a “softer Brexit” or the reversal of Brexit altogether. The latter is something many in the EU now realise is unsustainable, given how difficult the UK would be as a partner, not least due to the 17.4 million voters that would feel betrayed.

Given that Boris Johnson may also adopt a much more radical position on Brexit in the event of an election, in order to gain votes from the Brexit party, the EU would do well to realise a deal with him now is likely to be much easier rather than one later.

Boris has been moderating his position, most notably by suggesting an all-Ireland agri-food zone, which would increase the number of checks on UK territory, in the Irish Sea. He has however refused to align Northern Ireland to the EU’s customs territory, as this would mean intra-UK customs checks. Instead he has proposed things like trusted trader schemes and technology as a means to soften the border. The EU considers this to be a big obstacle.  

Boris Johnson still wants to preserve the Good Friday Agreement, but by minimising border checks instead of avoiding them altogether. This has lead to EU accusations that he was no longer committed to the "frictionless" trade Theresa May signed up to but only to trade that was "as frictionless as possible".

As a European diplomat put it: “His proposals presuppose the management of a border . . . not the avoidance of a hard border, as was the clear commitment between the EU and the previous UK government.”

The UK and the EU also seem to define what constitutes a “border” in a different way. Whereas the UK only sees it as a geographical frontier, the EU takes a wider view encompassing the all-island economy, thereby also defining checks away from the frontier as a border. 

The backstop is intended to protect the “Good Friday Agreement” and because of this, many equate it with this important peace accord, but as a new Open Europe briefing highlights, this is fundamentally mistaken. The backstop does not meet the same tests for cross-community consent as the Good Friday Agreement. Nationalists support it but most unionists oppose it.

The backstop may on the contrary undermine the already weak institutions established under the agreement, as there are major doubts that it respects the important “Principle of Consent” in the Good Friday Agreement that any fundamental changes to Northern Ireland’s governance must enjoy support among both communities.

The key difference between Boris Johnson and Theresa May is that the former is much keener for the UK to have an independent trade policy. Theresa May’s team seemed much more relaxed about this not materialising, by signing up to the backstop arrangement, which puts Brussels in charge of UK trade policy.

Given that Boris is set on an independent trade policy and therefore tariff differences, which will necessitate some checks, this means that for a deal, “European leaders will have to make a difficult shift in the negotiating red line of having no regulatory friction on the border at all. That is a big ask” an EU source tells The Times.

That is the case, to be fair, but surely asking for the UK to sacrifice an independent trade policy until further notice isn’t exactly a modest demand either.

There is, however, cause for optimism, as the EU has been moving too, even though one needs a microscope to see it. For a start, there was the EU’s willingness to grant Ireland some slack on border checks in case of "no deal”, at least for a while. That’s good news, as it is sometimes forgotten that it’s Germany, France, the Netherlands and Belgium that are going to ask Ireland to protect the EU’s external border after Brexit, while Boris Johnson has pledged that “under no circumstances (…) will the (…) United Kingdom be putting checks on the Northern Irish frontier.”

Secondly, given how leaky the EU’s external border is, it would be weird if Ireland were to come under intense pressure to deliver a perfectly protected border from those countries that fail in exactly that.

We are talking here about Greek customs facing more than €200 million in fines for failing to act against a major Chinese fraud network dumping ultra-cheap clothing and footwear in Europe. And about the ports of Antwerp and Rotterdam, those major gateways to the EU’s internal market, which are “leaking like a sieve”, according to Antwerp’s mayor.

On this, we can spot some movement, as there were some rumours about tolerating the same lacklustre VAT collection in Northern Ireland as elsewhere in the EU.

But apart from this glimmer of hope, nothing is moving on the EU side. EU negotiators have dismissed most UK demands for flexibility, which ultimately come down to tolerating a few extra holes in the external border, for the sake of peace. One such demand was to exempt small traders from being checked at the border.

Even if Ireland would move on the backstop, flexibility from Ireland’s EU partners in tolerating a border that is at least as leaky as the EU’s external border elsewhere will be absolutely crucial in order to come to a deal.

If Juncker is not just being diplomatic when stating that he thinks Boris is intent on a deal, he should realise the EU will need to move. In one month, “dealmaker” Boris may be replaced with “no deal Boris”. To quote EU negotiator Michel Barnier: “The clock is ticking”.