The most eloquent response to Monday's agreement on a Brexit transition deal was the silence of the Brexiteers on Theresa May's backbenches.
The deal is an important boost for the prime minister and it came at a small price in terms of concessions to European Union negotiators.
On the Border, Britain has not budged from the position it has held for the past three months. May has been consistent and emphatic in her assertion that she stands by every word in December’s joint report, which included three options for avoiding a hard border. The third was a backstop promising to maintain full alignment with single-market and customs-union rules which “support North-South co-operation, the all-island economy and the protection of the 1998 [Belfast] Agreement”.
From the start, the EU and the UK interpreted the promise differently and when the European Commission clarified its interpretation in a draft legal text, May rejected it. She said no British prime minister could agree to the text, which envisaged a customs border in the Irish Sea. Until last week, the EU was insisting that no transition deal could be agreed before both sides had signed off on a legal text codifying the December report, including the language on the Border.
But Monday’s agreement leaves the issue open, with nothing more than the promise that “a legally operative version of the ‘backstop’ solution for the border between Northern Ireland and Ireland, in line with paragraph 49 of the joint report” would be part of the withdrawal agreement.
Common Travel Area
Britain has not accepted the EU’s draft legal text as the basis for negotiations on the future of the Border, although it accepts some parts of it, such as those referring to the Common Travel Area.
Contrary to some energetic spinning from Dublin and Brussels ahead of Monday’s agreement, the EU has made a tactical retreat on the Border. And not for the first time, May’s political weakness has proven to be a negotiating strength.
Brussels knew failure to secure a deal on transition this week risked generating massive political pressure from Brexiteers for the prime minister to walk away from the negotiations.
The EU side feared she could either bow to such pressure or be forced out of office, to be replaced by a more hardline figure. Some in Brussels have been encouraged by May’s Mansion House speech, which spoke of voluntary regulatory alignment after Brexit, to believe that she is on a path towards embracing customs union membership.
In Westminster, such a prospect seems remote, not least because, since the Mansion House speech, she has described remaining in a customs union as a betrayal of Brexit.
London, Brussels and Dublin are united in their wish to resolve the border issue without resorting to the backstop sketched out in December. But while Dublin and Brussels are focused on finding a solution within the context of the future trade relationship London continues to explore technological ways of avoiding a hard border.
Appearing before the Northern Ireland Affairs Committee recently, Brexit minister Robin Walker defined a hard border as one “where people are stopped and where there is physical infrastructure that gets in the way of everyday lives”.
Such a definition implies that anything short of physical barriers could be acceptable, a position impossible to reconcile with Irish demands that the Border should be no more evident after Brexit than it is today. Monday’s agreement has not closed off any options for resolving the Border but it has not nailed down the backstop any more firmly than in December.
