In stressing the “paramount importance” of preserving the gains of our peace process , EU Council President Donald Tusk’s draft Brexit negotiating guidelines make an important and welcome, albeit hedged, political commitment to Ireland. Our partners may not wish to consider a special separate deal or rules for Ireland but the promise is for “flexible and imaginative solutions ... including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context the Union should recognise existing bilateral agreements and arrangements between the UK and Ireland which are compatible with EU law”.
The draft proposes three strands of talks – on separation, the future relationship, and on transition – and will have to be approved by EU leaders at the end of April. It also prioritises cutting a deal on the post-Brexit status of EU and UK citizens in each other’s territory, although, because “nothing will be agreed until everything is agreed”, the early removal of uncertainty on this and on the Border issues may prove difficult.
Tusk also puts down clear markers on future access of the UK to EU markets – an agreement "must ensure a level playing field in terms of competition and state aid and must encompass safeguards against unfair competitive advantages through, inter alia, fiscal, social and environmental dumping". Translated, that means the UK must maintain social and labour rights enjoyed by EU workers, current rules on competition policy and EU environmental standards if it wants to sell its goods into the European markets.
Which all puts into perspective the "Great Repeal Bill" announced by the Tories on Thursday – actually a bit of a misnomer as the intention is to repeal only the European Communities Act 1972 but then to transfer automatically and intact some 12,000 EU regulations and 7,900 statutory instruments into British law. At a later stage, some certainty and continuity having been assured, the Commons then can dispose one by one of the old EU laws it disapproves of. That prospect of what has been called a "bonfire of EU regulations" has much excited many fanatical Brexiters, though PM Theresa May has been less gung ho. Tusk's warning may well be why.
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On the sequencing of the negotiation phases, the paper is a compromise between those who insist the trade talks could not start until the “divorce” talks had been completed and those like the UK, with some support from Dublin, who want them to run in parallel. It makes clear that while “agreement” on a future relationship can only be finalised once the UK has left, preliminary discussions may start after “sufficient progress” on the first phase talks . “Progress” is understood to refer to an agreement on how the elements of Britain’s Brexit bill will be calculated, without yet getting to the potentially politically toxic totals.