25 May 2019

defeated by brexit • part v

Held at the border

  • Britain failed to foresee that Ireland would be the main stumbling block to Brexit
  • The UK negotiators mistakenly thought the EU would allow a leaky border between Ireland and Northern Ireland
  • Theresa May – an arch-unionist – eventually had to agree that Northern Ireland might be treated differently to the rest of the UK

By Chris Cook

In the right hands, mere bureaucratic process can be a weapon. Drafting can be lethal. And the EU’s negotiators knew how to handle an agenda.

By mid-2017, that was already clear. The EU had won major concessions in the way it forced the UK to use the Article 50 process. And the decision on sequencing the talks ushered Britain into a holding pen, where concessions could be wrung out of it.

The UK had conceded that the negotiations would consider only three major topics – Ireland, the exit bill and “citizens’ rights”, alongside a bucket of smaller “Other Separation Issues” (OSIs – pronounced ‘oh-zees’). The talks, furthermore, were against a clock. And other topics – whether future trade or security – would only be permitted once the European Council, the committee of EU member state leaders, had agreed that the talks had made “sufficient progress” on the first round.

This verdict – “sufficient progress” – was all Britain could think about.

So in July 2017, when the first actual talks on the substance of an agreement took place, things were already gloomy. The civil service’s secret internal briefing pack for the negotiation team showed the seriousness of the hole Britain found itself in. They placed a high premium on making headway on the OSIs. Officials wanted to be making progress somewhere: “Keep negotiations on these issues alive if there is a breakdown elsewhere.”

On money, the briefing showed the UK accepting it would have to pay a bill. In late 2016, the FT had reported that the bill the EU might ask for could reach €60bn. It was assumed at the time that this would be the big political problem. Tim Shipman’s Fall Out, an account of May’s first year in office, written in the summer of 2017, reflected the view of the government at the time. He called money “the most contentious issue”.

In May 2017, May had told Jean-Claude Juncker over dinner that the UK had no legal requirements to pay. British officials had started citing the Vienna Convention, the treaty governing treaties, in defence of this position. After their dinner, Juncker is reported to have rung Angela Merkel to tell her that May was “in another galaxy”.

Jean-Claude Juncker, president of the European Commission

But by July, the briefing reveals, the position was softening. The note for Davis in the talks says he should make clear that Britain “will not walk away from its obligations”. But also that Britain must “push [Michel] Barnier to recognise that the legal uncertainty is real, and the other side need to engage seriously on these issues”.

On the second topic, citizens’ rights, the plan was “reciprocal rights for legacy UK/EU citizens, enforced by the UK courts … There should be “access to benefits and services on a par with citizens”. But, the document states, Britain needs to guard its “right to change domestic policy in future for all residents”.

That could be awkward – and the EU might want EU citizens’ rights to be safeguarded by a legal structure that leads up to the European Court of Justice. After all, the UK has a rather poor record on dealing with migration cases.

With the benefit of hindsight, the notes help to explain why, while all the attention was on the exit bill, Britain was heading for a crisis on Ireland.

On Ireland, the documents speak of “focusing on how best to reiterate the UK’s and the EU’s shared support for the Belfast Agreement” [the UK government’s preferred term for the Good Friday Agreement]. To that end, Britain wanted a “seamless and frictionless as possible” border and a single all-Ireland energy market.

The note focuses on the preservation of the “Common Travel Area, including the associated agreements”. The CTA is a bilateral agreement, almost a century old, which permits the UK and Ireland to remove immigration controls for one another’s citizens. Its role had, to this point, been the prime minister’s only policy proposal on Ireland in speeches.

But the seamless border means much more than people. It means no checks on goods relating to customs nor checks relating to regulation. This involves a maze of issues.

Broadly, customs means making sure goods comply with EU trade policy (“Have you paid the tariffs owed on this Chinese device?”). Regulatory checks mean making sure that goods entering the EU meet EU standards (“Are your cows healthy?” “Do these toys contain lead?”).

But in the confidential briefing, there is no mention of trade. There is no mention of agri-foods – a huge border issue in Ireland, where production lines go back and forth over the border. Milk from cows in the Republic and the North goes into the same pats of butter.

Milk from dairy herds on both sides of the Irish border is combined in products like butter

The note suggests “the main potential risks here would be an attempt by the Commission to narrow the scope of the CTA and rights through an overly legalistic approach, or even to merge this in with the citizens’ rights discussion”.

This reflected the view that the main concern, at the start, was the CTA – not trade. The concern was that the EU might be officious, and insist that all EU citizens be treated the same. No special side deals for  Ireland. This concern reflects a misreading of the scale of the problems emerging.

As it happens, there would be a much bigger challenge if the EU were to insist on strict legalism about Britain’s plans. That is because, at this moment, the UK intended that the EU should allow a porous border in Northern Ireland, even if it meant allowing goods in that strictly would not meet EU requirements.

In August, Britain published a paper on Ireland proposing that there could be a “cross-border trade exemption” that would cover all trade by smaller businesses on the island of Ireland, which makes up 80 per cent of border traffic. What harm would there be in letting a local farmer toddle back and forth with his milk or meat? Bluntly, the plan was to have a leaky border.

The Irish border from the Cliffs of Magho in Co Fermanagh

Larger exporters would need to face some controls. But they could be put into “trusted trader” schemes, which would allow them to file paperwork and submit to checks at their businesses.

In the public paper, Britain argued a system could be set up to “avoid any physical border infrastructure in either the United Kingdom or Ireland, for any purpose (including customs or agri-food checks)”.

A UK negotiator told me: “The PM … knew that we couldn’t have border posts … that would be targets for dissidents.” There was – and is – concern that allowing the border posts to go up would not only interfere with the flow of life in post-Good Friday Agreement Ireland. It could provoke terrorism once again.

“[She] actually understood what the threat to progress in NI was. That anything involving infrastructure would bring the process to its knees.”

There was concern about the EU standing by its strict legalism, but the officials thought they could be persuaded – the EU, at Irish instigation, had kept stressing the need for “creative” solutions on the Irish border. Juncker and Donald Tusk kept on with it.

The EU mandate for the talks stressed: “In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order.” One senior negotiator told me: “It was the thing that gave us hope.”

This set of proposals was pressed forward – and, as the conversation on money continued to dominate, Ireland got relatively little attention. When it did get attention, the presumption was that the UK’s plans for it would work. And, even if they would not, the talks would be nodded through.

David Davis, the Brexit secretary, told officials that Ireland was a “Trojan horse”. This idea, which had some support from officials, argued that the EU wanted a fleshed-out decision on the future of the UK-Ireland border. So the precise formula for the border could not be fixed until we knew the shape of the future UK-EU relationship. To solve the Irish border problem, both sides needed to move on to the second phase, where that relationship could be discussed.

Enda Kenny, Irish prime minister until 2017, was uncompromising on the need for regulatory alignment with the UK

This was an important chain of thought in Whitehall at this time. The core view in London was that the Ireland border issue would be a tweak to the broader relationship, to be properly explored only once the UK-EU details were fixed.

At a Whitehall party just before the October meeting, one senior negotiation official bragged that Ireland was a “self-answering question”. Another official told friends around this time that the EU had “made a mistake” in the sequencing.

But this was not the only analysis with currency in London at the time.

Some Brexiters, in particular, thought that the Irish would be so devastated by the collapse in any talks – which would mean a hard border – that they would not stand their ground, and would concede on the need for a border. A UK negotiator said: “I think there was always a sense that… it was so bad for them if this didn’t work out that they would end up being our friends in the room and arguing for us rather than against us.”

There was a view that Ireland would at least back down to the extent that this could be made a sort of “technical” problem. Something that, ultimately, could be fixed by civil servants.

David Davis, Britain's Brexit negotiator in Brussels until 2018, believed the Irish were bluffing about standing with the EU

Davis would argue in Brussels that it was just a border, like others. Based on his work as a minister in the 1990s, he told me: “I knew it pretty well, probably more than most ministers – even Irish ministers – would know it. And so I’m very conscious of how this would work. I’m also conscious that there’s great bloody infrastructure there.”

A cabinet member told me: “David … and one or two others around the cabinet table believed, and continue to believe, that the Irish were really bluffing about this.”

Some in Britain blithely assumed that Ireland would back down. There were others who did not believe the EU would pick little Ireland over mighty Britain. Other states would not allow it.

They were all wrong.

In the run-up to the European Council of October 2017, the UK was hopeful of a breakthrough. If not the full “sufficient progress”, then something close. Not least since the real concern at this point, the financial settlement, had been the focus of political attention. The prime minister had been to Florence to give a speech in late September, in which she explained that Britain would be willing to pay its bills.

She said: “I do not want our partners to fear that they will need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour commitments we have made during the period of our membership.”

This wording had been agreed with Sabine Weyand, the Commission’s deputy lead negotiator. The hope had been that this would unlock the next phase. But when the European Council was asked to deem there had been sufficient progress, the answer was clear: no.

President Emmanuel Macron of France with the head of the IMF, Christine Lagarde, and the German chancellor Angela Merkel in 2017. According to David Davis, he blocked progress at the European Council

In truth, the Commission had been sceptical progress would be made. On citizens’ rights, there were still big issues on the role of the European Court of Justice. Even on the financial settlement “we were not there yet” – only “a third” of the technical work had been agreed. May’s wording in Florence was not enough to reassure leaders about the departure bill. Nor did the Irish question resolve itself.

In Davis’s account: “Macron steps in, stops it, actually undermines Barnier in the process. Blocks it. (Why? “Small man syndrome,” he joked.) Task Force 50 – the EU negotiating team – was, as Davis says, a little damaged by this period. This is the moment, British officials say, when Robbins started to deal directly over the Task Force’s head with the Commission’s most notorious and powerful official, Martin Selmayr.

But the block on “sufficient progress” was a bigger blow for Britain. Not least since this is when it was made absolutely clear to the UK that the EU and Ireland were serious.

Martin Selmayr, the most powerful official in the European Commission. Olly Robbins started to deal with him directly, over the heads of the EU Task Force

Over the summer, Britain made several serious errors in its reading of both Ireland and the EU. And the UK’s plans, built on the idea that one of the two of them would give in, would not work.

First, the Irish would not be content with warm words. They wanted a “legally operable” solution to the border problems. A lead member of Britain’s negotiation team said the UK “underestimated the strength of the guarantee that they would want from us”.

Yes, standing their ground might cause “no deal”. But it was not appreciated in London that there is a great difference in Irish political terms between “having a border imposed on Ireland” and “agreeing to a border”. Remember the Dublin consensus, forged in those first days after the referendum. They were in favour of a hard line.

Second, the European Commission insisted that the border could not leak. Exemptions for 80 per cent of the cross-border traffic was not an acceptable price for the EU.

And, third, the EU and Ireland were clear that they would stand together.

A former customs checkpoint in Northern Ireland. The EU was determined that the border would not become 'leaky' after Brexit

The UK utterly misread its closest allies. And it is quite difficult to piece together precisely how this happened.

Downing Street was a tough, unforgiving place – and some officials said that the tight lines on briefing imposed by the prime minister’s chiefs of staff before the summer of 2017 did not create an atmosphere conducive to debate.

But Nick Timothy and Fiona Hill had gone by mid-2017. And red flags were being raised: Denzil Davidson, one of May’s Europe advisers, saw the depth of the problem with Ireland in mid-2017. Peter Storr, his colleague, raised concerns. Sir Ivan Rogers, the UK’s leading official in Brussels, had set out the bones of some of the problems early on, before resigning in 2016.

Rogers, in particular, had stressed that Ireland would be supported by other EU states. If the EU were to ditch Ireland, what would the Baltic states make of giving up the vital interest of one of its smaller countries? “It would have been absolutely lethal for the EU,” one Commission official explained to me.

In addition to these warnings, officials say, Sir Jeremy Heywood was an aggressive checker of assumptions. One member of the prime minister’s office said “Jeremy … would never allow a weak argument to go unchallenged, whoever made it. On Ireland and the options at the border … he and others didn’t hold back.”

There were also clear messages from the EU. They were forthright on a leaky border. One person briefed on the content of the talks gave an example. One source said Weyand would ask Robbins questions such as: “How would your plans stop a shipload of Turkish okra turning up in Belfast from getting into the EU?” British assurances that few companies would divert contraband goods through Northern Ireland so they could escape EU rules cut no ice.

There were also clear messages from the Irish. Enda Kenny, the Taoiseach, had been uncompromising in his message to May in January 2017: any answer would involve regulatory alignment between Northern Ireland and Ireland.

And Kenny dropped plenty of other clues, too. In April 2017, UK negotiators had been alarmed by an Irish diplomatic gambit. Ireland managed to get the European Council to approve text explaining what the EU would do were Northern Ireland to become part of Ireland. On the face of it, this is uncontentious. The Good Friday Agreement sets out the strictly defined process by which the six counties of Northern Ireland could be unified with the 26 counties south of the border.

It was not the message that was the problem. It was how it was delivered. Conventionally, especially on peace process matters, the UK and Ireland try to avoid surprising one another. In this case, however, Britain found out only after the rest of the EU27. The first clue came from an informal tip-off. Britain protested limply, but to no avail.

As one UK negotiator put it to me: “I think they were trying to show they were serious. But I suppose we thought: ‘Well they would, wouldn’t they?’”

There had been a change in Taoiseach since the start of the talks – Leo Varadkar replaced Enda Kenny in July. But there was no change in intensity of feeling.

Leo Varadkar took over as Taoiseach in 2017 but his feelings on the Irish border were the same as Kenny's

In the autumn of 2018, having been told the UK had to go further, a UK negotiator said the urgency of a solution to the Irish border really became clear.

Davis had another view. “What I think started to happen is that our own government started to lose its nerve.

“I think. I don’t know.”

In the event, the position on money would prove easiest to solve. The bill was well understood by the Treasury, whose specialists led on this topic. Davis says: “To be fair, the Treasury did a good job on this. They just sliced up the legal basis.”

Britain agreed to principles around settling its bill, currently assumed to cost £39bn. But it could have been £49bn or £59bn. Politically, it was important that Britain fought off the biggest numbers. But the number was not a major issue. These sums are not fiscally significant and it was certainly not worth wrecking the UK’s relationship with the EU over the number.

On citizens’ rights, the other strand of the talks, the dynamics were a little different. Again, experts from the Home Office were drafted in. And despite domestic pressure, May had refused to commit to a unilateral guarantee of UK-resident EU27 citizens’ rights early on. She wanted it in the talks, to make sure UK citizens in the EU were looked after.

This had been the cause of ill will early on. There was, however, little to be gained from either side in restricting the rights of already resident EU and UK citizens. There were details to fix: who would enforce these rights? But, again, despite concerns that the ECJ would be involved, it was not a serious complication.

The end of 2017, however, was when the intractability of the Ireland problem was finally seen in London. Ultimately, it was Ireland that would cause the most pain. And the only plausible solutions were awful.

If the EU says you cannot have a leaky border, and both Ireland and the UK agree there must be no infrastructure, there are two broad solutions. First, the UK, as a whole, does not deviate from the EU rulebook on customs or regulation, so no regulatory or customs checks would be needed.

An Irish tricolour marks the border. There were only two options for ensuring the border had no physical presence and they were both grim for the UK

Or, second, you hive off Northern Ireland and allow it a separate rulebook from the rest of the UK, so it can remain aligned to the EU. If Great Britain wishes to diverge from EU rules, it can do so – but there will be “east-west” checks on trade between Great Britain and Northern Ireland.

Both options are grim for the UK. The first means that the benefits of Brexit for lots of Leavers – independent trade and regulatory policy – are gone. The second is tough, too. There are already checks on livestock between the UK and the island of Ireland, but unionists would be concerned about stepping them up. Indeed, unknown to the UK, in early 2017 the European Commission had been considering an option involving such an arrangement. Tony Connelly, RTÉ’s Europe editor, who uncovered the document, says it noted that “insisting on such a solution could harm the peace process”. Unionists would be upset.

In London, the possibility that this sort of solution could emerge was recognised in the summer. An internal civil service briefing written for the prime minister when she was signing off the August position paper on Ireland had grasped the edges of this: “We should ensure the paper does not prejudge our broader position on … the future relationship, or open up difficult conversations about the potential for special solutions for regions of the UK, or indeed east-west borders …”

This paper, however, did not propose a solution. Merely that the UK assert that “the creation of intra-UK barriers as a result of Brexit would not be acceptable”. This statement would not, in the event, be enough.

 

London did have one thing right. The structure of the negotiation was awkward. The UK was being asked to write a formula for the Irish border without knowing its broader future relationship.

The Taoiseach Leo Varadkar at Downing Street after talks with Theresa May on the backstop

 

This is the origin of the so-called “backstop” – the central problem of the talks. The backstop is a guarantee of how, even if the talks were to end acrimoniously, the UK would manage Northern Ireland so that there would not be a noticeable border.

In the event that the UK completed a deal with Europe which meant the border was clear and frictionless, the backstop need never be used. But, in the event of talks collapsing or the UK not meeting that bar, the backstop was a treaty within a treaty. It would provide a legal framework that would kick in and take effect. It sought to set a floor on the relationship between Northern Ireland and Ireland.

As the clock ticked ever louder, the need to move the talks on became a weight on government. And it became clear that the backstop would need to be ambitious. In November, a leaked report revealed just how ambitious: the Commission was considering solutions involving keeping Northern Ireland tied closely to the EU, with checks on goods moving between Great Britain and Northern Ireland.

By the start of December 2017, the prime minister took personal control of the talks. Davis told me: “Juncker calls up and says: ‘We should have a meeting over lunch with Theresa and David and Olly and Michel and Martin and me.’ And I think: ‘Great. That means we’re going to get movement.’”

On 3 December, May called Davis. “On the Sunday, she calls me up and tells me, ‘We’ve agreed the wording’ and I must admit I thought: ‘We’ve already agreed the wording’. I didn’t say it.”

He says May said: “There are two areas where you might have some concern. One on the role of the European Court with respect to citizens.’ … I did, but it wasn’t major. ‘And the other is that we’ve agreed on Northern Ireland; there’ll be full alignment’.”

“I said to her: ‘You can’t say that, prime minister. That’s harmonisation. We’re explicitly against harmonisation.’”

A promise of Brexit for many Tories had been less regulation. Harmonisation would mean taking EU rules for Northern Ireland – which, now, the UK would not be involved in writing.

The prime minister told him: “Oh, no no it’s not harmonisation. It’s full alignment of outcomes.”

Later on, Brexiter cabinet ministers would be assured, as Davis was, that this did not mean Northern Ireland would be required to take on EU rules. It just meant, they were told, that rules needed to lead to the same sort of results. (“This was just a lie”, one former official told me. “She knew that wasn’t true”. Another said: “We hoped it was ambiguous enough and we could stretch it.”)

Davis says he replied to her: “Are you sure, prime minister, the other side see it that way? Let me tell you, the history of diplomacy where two sides agree the same words but mean different things by them is not a very good history. From the Balfour Declaration onwards …”

“Well, we need to make progress,” she said. Tick tock. Tick tock.

This was a big step. This was a logical consequence of the August paper on Ireland – which made much the same pledge. But it meant that if the UK were to diverge from the rest of Europe on rules, regulations and trade, Northern Ireland would be left behind inside the EU.

The EU and UK negotiating teams had agreed a text to that effect. But Connelly, the RTÉ journalist, got hold of some of the drafts. The final version he obtained matched what Davis had been told: “In the absence of agreed solutions the UK will ensure that there continues to be continued regulatory alignment from those rules of the internal market and the customs union which, now or in the future, support North-South cooperation and the protection of the Good Friday Agreement.”

The DUP leader Arlene Foster and her deputy, Nigel Dodds. They were furious to discover via a press leak Northern Ireland would effectively be left in the EU

The leak meant the DUP now knew. Davis says: “So we go to Brussels for the lunch and while we’re walking down the corridor in the Berlaymont, Ian Paisley [a DUP MP] rings me: ‘This doesn’t work, David’. ‘Well you better get your boss to ring my boss.’”

During the lunch, the phone rang.

In a room, with Juncker, Barnier, Selmayr, Robbins and Davis present, the prime minister had to take a call from Arlene Foster, the DUP leader: “It must have been … an hour later. We were past the main course … Arlene Foster spent half an hour berating the prime minister during the lunch.” Juncker, Davis says, left the room out of courtesy.

In a public statement, Foster said: “We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.” The DUP’s votes were essential to the government – and the collapse of the Northern Ireland assembly meant no other voices were heard. That Monday afternoon, the deal seemed to fall apart.

But, by Friday, the UK government had put together a plan. Davis said: “We ended up having this crack-of-dawn departure to Brussels from Northolt [a Royal Air Force base in London] – 3.30 in the morning. Breakfast in Brussels with Juncker to agree it. All sorts of things you learn from that. They were desperate to do a deal. ‘How much time do you need? Can we talk to people?’… He desperately didn’t want it to get blown up.”

A text was agreed. The backstop appeared, finally, in December 2017 in a document known as the Joint Report. It is worth reading paragraph 49 of that document:

“In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”

“Full alignment” had been the problem before. But paragraph 50 sought to mollify the DUP: “In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

This created something of a trap. It was a paragraph with two readings.

To Britain, it meant that the EU could not do anything that would require the UK to erect barriers between Northern Ireland and Great Britain.

To the EU, it was a promise made by Britons to themselves. The internal issues of the UK – how movement within the country is treated – are for Britain. They are not for the EU.

There was ambiguity in the Joint Report. But seizing the advantage in the gaps in meaning would require some enterprise.

A UK negotiator told me: “One of the mistakes made was not getting out in front of that … There were [officials] inside here … pushing for us to publish [draft treaty] text“. Such a legal text could press their version of “full alignment” or paragraph 50, for example. The Commission, too, remained bemused that the UK did not issue a legal text.

Robbins is named, widely, as a block on this sort of action in this period.

In February 2018, the UK paid a price for this inaction. The Commission published a draft text of a withdrawal agreement. It set out that Northern Ireland would be drawn into “a common regulatory area”. Northern Ireland would, in effect, be drawn into a customs union with the EU, and follow a range of other EU rules. The rest of the UK would be outside this net.

This meant that the EU’s reading of Paragraph 50 – the one barring east-west checks – became the one that counted.

A negotiator told me: “Once they had done that, and it was just so far away from anything we could ever accept, we were then trying to claw back, and that was a fundamental problem. If you look at the path of the negotiation … it’s been quite rare for one side that is completely … out of whack with the other side … There’s usually some back-channelling so you know how stuff is going to land.”

Theresa May accidentally negotiated an agreement which would cut the Union in two

The DUP, whatever else it stands for, stands against division between Great Britain and Northern Ireland. The prime minister announced that “no UK prime minister could ever agree to” this proposal because it would threaten the “constitutional integrity of the UK”.

The unionist prime minister reliant on DUP votes had accidentally negotiated a deal which would cut the union in two.

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