Richard North, 10/02/2018  

Following Barnier's press conference yesterday, I was more than a little confused by some of the media reports. The particular confusion was that so many, like the Mirror, decided to headline the EU chief negotiator's comment that leaving the single market and customs union made border checks at the Irish frontier "unavoidable".

Taken out of context as it was, it seemed as if he was saying something new. In fact, all he was doing was listing three options – of which this was one – that had been set out in December, just before the agreement to take in elements of phase two in the next round of talks.

It needed the likes of the Irish Times to put it together. The determination of EU negotiators to put into "unambiguous" legal language the UK's commitment to no "hard" border on the island of Ireland, the paper said, had provoked sharp disagreements between negotiators for both sides. This was a measure, some had said, of "buyer's remorse" on the UK's part over commitments it made in December.

Nevertheless, this was what it was all about. Barnier was telling journalists (those that had wits to listen) that the EU's negotiating task force was set to prepare the text of the withdrawal agreement based on the December phase-one agreement.

It was to "start legally defining how the scenario would work in operational terms" - in effect continued membership of the customs union for the North, as well as the Single Market - Barnier had said, once again warning that the negotiations were running out of time.

It's there that the three possible border scenarios came in – the three that had been outlined in December. Two of those depended on the "future relationship" talks which had yet to begin. And without talks, they could not be part of a withdrawal agreement. In the meantime, said Barnier:
… it is our responsibility to include the third option in the text of the agreement. This means that we would like to start this work. There must be no ambiguity here. Based on the discussions this week, the UK has accepted the need to make this full alignment operational scenario. This is what we will work on in the coming rounds.
That third option is "to maintain full regulatory alignment of the Single Market and the Customs Union - current or future - which support North-South cooperation, the all-island economy and the Good Friday Agreement".

Yet, what precisely that means, no one exactly knows. Some of the media are suggesting that the North will indeed stay in the customs union and the Single Market. But we've been there before, when we were  assailed with the "regulatory alignment" meme. That was back in December when, as we reported, Mrs May issued two contradictory promises. One was that there would be no "hard border" between the two Irelands. The other that there would be no "regulatory harmonisation".

At the time, most Tory MPs seemed content to accept Mrs May's assurances, and there was little attempt to force from her the essential details as to how she aims to honour these pledges. Now, here it is the same contradiction, coming back like the proverbial bad penny to visit itself on Mrs May. But this time, the EU is calling the shots by defining the terms of the legal text which will go into the withdrawal agreement.

The point, of course, is that if the North takes on board the full extent of regulatory alignment that Mr Barnier seems to have in mind, then one of two things have to happen. Either the rest of the UK has to follow suit, or there has to be a hard border between Northern Ireland and the rest of the UK – the so-called "wet" border.

And Mrs May has promised that neither will happen. Her government is committed to ensuring that there will be no barriers to trade between the British mainland and Northern Ireland.

This was the "insoluble" problem that she evaded back in December, but the EU is not going to let her backslide on her commitments. In the absence of any initiative from the British government – which seems to be frozen into inactivity – the EU is taking the lead once again. And it doesn't stop there.

Coming into the crosshairs is the matter of freedom of movement for "EU citizens" during the transition period. The EU wants those who move to the UK during that period to have the same rights as all those who where there before we left the EU. The UK, however, disagrees with that and it is fast becoming a deal breaker. As Barnier says, "This is a major subject for us, and also for the European Parliament".

On other issues, such as the application of European rules during the transition, the UK wants "a right of opposition" in the event that it disagrees with a new rule or law that would enter into force during this transitional period. Then, on justice and home affairs issues, Mrs May wants the UK to continue to benefit from its right to participate in new European policies, the so-called opt-in, while it has decided to leave these same policies at the end of the transition.

But, says Barnier, the positions of the European Union are logical. In demanding the benefits of the single market, the customs union and common policies, the UK must accept all the rules and obligations until the end of the transition. It must also assume the inevitable consequences of its decision to leave the European Union, its institutions and policies.

From there, we get a glint of steel. "Given these disagreements, and to be very frank, the transition is not now acquired. If these disagreements persist, the transition is not a given".

Basically, the EU is in no mood to offer even the slightest concessions. It has already produced one draft legal text and, once approved by the 27, it will be an integral part of the EU's draft withdrawal agreement.

That text includes a proposal to strengthen the existing enforcement mechanisms in the EU during the transition period. This is not "punishment" says Barnier. Simply, in the event of a breach of European rules during the transition, the usual infringement procedures may take too much time and therefore not be operational to resolve a possible dispute between the UK and the EU.

Thus, Barnier emphasises, we are simply building a legally sound exit agreement that leaves no room for uncertainty. And that is how the EU intends to "move forward in this negotiation".

But that leaves Mrs May with nowhere to go. With Northern Ireland, she is between the rocks and hard places of a "seamless border" and the DUP's refusal to countenance a solution that makes Northern Ireland "different from other parts of the United Kingdom".

She ducked the issue at Florence, she ducked the issue later in Brussels and now it's closing in on her, with the added spice of the other issues. Yet she appears to have no more ideas of what to do than she did last September on the eve of her Florence speech.

Slowly, inexorably, she is being pulled into the grinding machine of the EU's legal machine, driven by her indecision and lack of resolution. And as the clock counts down, all we can do is watch in awe.

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