Scramble under way to make progress on Brexit Border issue

The classic tactic in politics is to delay making a decision until the last possible moment. But Theresa May is being pushed into making some vital calls ahead of the June summit of EU leaders. It remains to be seen if she can, with the latest report suggesting that she is looking at new approaches to try to break the deadlock.

Illustrating the political pressures, May continues to deny any backsliding – again repeating on Thursday morning that the UK will leave the EU customs union and single market. However there are now enough reports emerging from London to suggest that the UK governments is indeed examining approaches which would see it retain some kind of close link to the EU customs arrangements for a period after Brexit.

A key issue for Ireland is that the intention in London is for this to replace the current proposals – agreed last December – for how a backstop arrangement on the Irish Border might look. Ireland will be very wary of this and will hope for ongoing support for its stance from the rest of the EU.

If there is one thing that is clear from what has happened in recent days , it is that all sides are taking the deadline of making progress before the June summit seriously. And that there is serious pressure now from the European Commission to do so and for the talks not to collapse.However, whether progress on the key issue of the Irish Border can be made by then is still far from clear, given the political pressures facing the British prime minister.

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The cabinet split in the UK has focused on a row between those favouring a so-called customs partnership between the UK and the EU and supporters of using technology to reduce frictions at borders, including on the island of Ireland.

The first, reportedly favoured by May, involves a close trading relationship under which the UK collects tariffs on behalf of the EU on goods entering the UK destined for EU markets.

Brexiteers reject this, fearing it will mean the UK still following EU rules, and call instead for the so-called “max fac” or maximum facilitation option, which involves using technology and customs procedures to reduce Border checks. Few trade experts believe this will work in terms of eliminating checks on legal trade and it certainly won’t deal with the threat of smuggling.

The EU's lead negotiator, Michel Barnier, has already rejected both approaches, as initially outlined anyway, and repeated this week that he felt they were unrealistic. But would he be prepared to live with some kind of compromise?

Some reports on Wednesday suggested that May is now considering keeping the whole of the UK aligned with the EU customs union for a period of years after Brexit. The suggestion was that this was likely to be presented as a holding position as other future options – such as the “max fac”are worked out. May appeared to throw cold water on this on Thursday, but it may be all about the language.

Politico and Reuters have reported that the UK may propose maintaining the EU’s external tariff after Brexit – in other words applying the same tariffs on goods coming from outsider the EU .The external tariff is a key aspect of the customs union, allowing goods from outside the EU to circulate freely after entry. This could the UK involve staying in the customs union for a period in all but name – with the hard Brexit lobby mollified by some time limit on this.

The trouble for May is that getting cabinet agreement for this will involve facing down the Brexiteer lobby, who may see this as effective ongoing customs union membership and as a climbdown too far. There is such an attempt to fudge two conflicting positions in the UK cabinet that it simply may run into the sand. And remember that as well as the political problems we are dealing with intense legal and operational complexity here, too.

And then, of course, the EU side, while no doubt willing to discuss any new proposal, may well have problems. There is resistance, for example, to any approach seen to be putting off a decision. The EU side are also intent on protecting what they call the integrity of the EU single market and customs union and not allowing the UK to pick the bits that it wants and suit itself.

For Ireland, UK membership of – or alignment with – the customs union for a period beyond the transition, due to end in December 2020, would be welcome. It would remove one of the immediate threats of trade disruption.

But there are issues for us here, too. One is, if some kind of time-limited arrangement is agreed, what happens when it ends? This is why the Irish side will continue to push for a legal spelling out of the backstop arrangement reached last December in the text of the withdrawal agreement.

The backstop has been central to the discussions ahead of the June summit, as negotiators try to put a legal shape on last December’s deal, which refers to the North maintaining continued full alignment with the rules of the single market and customs union after Brexit, unless another solution emerges in the talks. However the political issue here is that repors say that London’s motivation in coming forward with new arrangements is precisely to avoid signing up to the backstop in its current form as part of the withdrawal agreement.

Were the UK to remain a de facto part of the customs union for a period post Brexit, it would remove one reason for the immediate imposition of Border controls after Brexit on the island of Ireland, but would not solve the problem. As well as the same customs regime, free trade across the Border requires the North - or the UK as a whole – to continue to abide by many of the rules and regulations of the EU single market. Other checks would be needed in areas like food safety. And Ireland would be wary of any time limited deal which left any fuzziness about what would happen after this period ran out, particularly if the backstop as originally envisaged was not in place.

It was clear from day one that once the UK leaves the EU trading bloc – the single market and customs union – there was no easy solution. Whether enough progress in reassembling Humpty Dumpty can be made to allow the EU summit to avoid a collapse in the Brexit talks in June is still very much in the balance. Brussels is turning up the heat, but it remains to be seen if Theresa May can deliver something which might break the logjam.