British and EU Brexit teams at cross-purposes as clock ticks on

It could hardly be described as a ringing endorsement of Downing Street’s strategy.

Asked whether the government was going to win the vote on Tuesday night, when the Brexit deal wearily returns to the Commons, Sajid Javid would evidently have liked to be anywhere but Brussels.

“We are in negotiations,” the home secretary responded with a half-smile, before a meeting of fellow home affairs ministers. “So, we’ll see how it goes.”

It has become evident that things are not going very well at all. With just a few days to go before the vote, when Theresa May is hoping to claw back from January’s historic 230-vote defeat, the British and EU teams have this week been talking at cross-purposes.

The EU team, led by Michel Barnier, is seeking to offer MPs reassurance that the shared customs territory that the Irish backstop envisages, and Northern Ireland staying in the single market, will only ever be a temporary arrangement if it should come to pass.

Their focus has been on turning a series of pledges made in a letter in December by Jean-Claude Juncker, the president of the European commission, and his European council counterpart, Donald Tusk, into legally binding commitments through a joint interpretative instrument, a legal add-on to the withdrawal agreement.

Those include stating the EU’s “firm determination” to have an alternative to the backstop ready before the end of 2020, to avoid it coming into force.

Should the backstop be triggered, both sides would set the “objective of making this period as short as possible”. A road map to this end is being drafted.

Further proposals have been put to the British side in this vein, the contents of which are being kept confidential for now. The UK is mulling them over.

The British, meanwhile, have been approaching the issue from quite a different perspective. The result has been the “robust” and “difficult” talks of Tuesday night along with a fresh sense of gloom in the Belgian capital.

The attorney general, Geoffrey Cox, has set about his task like the commercial lawyer that he is, determined to get the possibility of legal redress should the EU try to “trap” Britain in the backstop.

Cox’s proposal has been for an arbitration panel, already foreseen in article 169 of the withdrawal agreement, to have an enhanced role.

The five-person panel – two nominated by each side, and an independent member – currently has the task of adjudicating if either side fears that the other is not making their “best endeavours” to replace the backstop with an alternative, such as a technological fix.

In such a case, should the arbitration panel agree that all that should be done is not being done, they would send back their opinion to a joint committee, a political body compromising members from both sides, to resolve.

The EU and UK agreed in the withdrawal agreement that exit from the backstop would have to be a political decision made by both sides.

Cox is seeking to spin that on its head, turning a political judgement into a legal one, and effectively outsourcing the issue. This, he says, could see him revise his position that the backstop could be in force “indefinitely”.

The arbitration panel, under his proposal, would have the power to release the UK from enforcing the customs elements of the backstop, should the British government be able to show that it has made all reasonable efforts to negotiate an alternative, but that talks with Brussels have irretrievably broken down.

Elements of the backstop would remain – the EU’s deputy chief negotiator, Sabine Weyand, has described what would be left as a “mini-backstop” – but the UK would be free to pursue the independent trade policy of which the Brexiters dream.

The problem is that the proposal is an non-starter. It would, Weyand has said, breach EU law by handing the fate of the bloc’s border to such a body, and there is considerable surprise that it has even been raised at this very late stage.

The gap between the two sides today is said to wide. Few in Brussels see much hope of it narrowing sufficiently in the few short days that remain. And the clock keeps on ticking to 29 March.


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