Clock is ticking for Theresa May and Brexit backstop

After a week of speculation about an emergency cabinet meeting to approve a Brexit deal, Theresa May's ministers will meet as usual on Tuesday morning without a deal to consider. If there is no breakthrough by Wednesday evening, there will be no special summit on November 25th and a deal will have to wait until the EU leaders' next scheduled meeting, on December 13th.

The prime minister's Europe adviser, Olly Robbins, and the EU's deputy chief negotiator, Sabine Weyand, worked until 2.45 on Monday morning and met again a few hours later. But they failed to reach agreement on the toughest remaining issue of how Britain can exit a backstop that would keep it in a customs union with the EU to guarantee no hard border.

During the past week, two other potential problems surfaced after the EU set out conditions for a customs arrangement including a “level playing field” on state aid, taxation, environmental standards and labour conditions. Some member states also demanded continued access to British fishing waters.

Free-trade deal

May conceded the level playing field principle in her Mansion House speech last March when she said that Britain would accept the need for binding commitments in a free-trade deal with the EU. “We may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s,” she said.

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“We share the same set of fundamental beliefs; a belief in free trade, rigorous and fair competition, strong consumer rights, and that trying to beat other countries’ industries by unfairly subsidising one’s own is a serious mistake. And in other areas like workers’ rights or the environment, the EU should be confident that we will not engage in a race to the bottom in the standards and protections we set.”

The disagreement over the backstop centres on the review mechanism to determine when the conditions are met so that a hard border can be avoided without the backstop. The two sides disagree about how frequently the backstop should be reviewed, with Britain seeking a review every few months while the EU argues for regular but less frequent reviews.

Britain wants a panel with some independent representation to determine if the backstop is no longer necessary but the EU resists any form of arbitration that could undermine its autonomy. Ireland opposes arbitration of any dispute with Britain involving Northern Ireland.

Strict limitation

If a solution is found, perhaps involving a strict limitation on the scope of any arbitration, the prime minister must win the approval first of her cabinet and later of parliament. The opinion of attorney general Geoffrey Cox could prove crucial in swaying Brexiteer ministers.

But the parliamentary arithmetic is daunting as May faces opposition within her party from Brexiteers such as Boris Johnson and Remainers like his brother Jo, as well as from the DUP and the opposition parties.