An abandoned Customs Facilitation Office at the border between the Republic of Ireland and Northern Ireland. Photo: PA

As we enter the UK’s last full year as a member of the EU, negotiations are about to begin to determine the long-term relationship with the EU27. The Progress Report of December 8^th 2017 recorded agreement on UK ‘divorce’ payments, the rights of EU citizens and arrangements for the land border between the UK and Ireland. The Cambridge Law Professor Simon Deakin takes the view that “while this is merely a joint report on progress in phase one of the Brexit negotiations …. Its contents are likely to be incorporated into the withdrawal agreement envisaged by article 50.”

Some UK Ministers have suggested that its contents can be amended and point to the Report’s opening statement that “nothing is agreed until everything is agreed.” In addition, paragraph 46 of the Irish border section of the Progress Report states that “the commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the EU and the UK and are, as necessary, specific to the unique circumstances on the Island of Ireland.” 

All is thus to play for—but Deakin’s interpretation is likely to dominate EU thinking, and unless the UK is prepared for ‘no deal’ on trade, it will dominate.

Any non-negotiability of the Progress Report’s contents will present a real problem that will come to haunt the stage two negotiations. Specifically, big problems are likely to arise over what should be a small issue: the Irish land border.

A triumph of Irish diplomatic manoeuvring

The prominence of the Irish border in the stage one negotiations and in the Progress Report (where it occupies 14 out of 96 paragraphs) was a triumph of Irish diplomatic manoeuvring over common sense.

The crux of the problem is the Irish demand, and UK undertaking, to avoid a hard border on the island of Ireland. The Report is silent on where or how this commitment was made and focusses instead on how this commitment is to be operationalised. The key paragraph states that “The UK’s intention [is to avoid a hard border] through the overall EU-UK relationship. Should this not be possible the UK will propose specific solutions to address the unique circumstances of the island of Ireland.”

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