Brexit: May’s White Paper sidelines thorny Border issue

The EU has repeated the mantra for some time. If the UK loses some of its red lines, it will not find the EU wanting. Flexibility will be possible, as long as the integrity of the single market and its four freedoms are preserved.

And from Dublin in the last few days there have also been positive, encouraging noises from Taoiseach Leo Varadkar and Minister for Foreign Affairs Simon Coveney about, as the latter put it, "trying to accommodate some of the British thinking".

But does the White Paper published yesterday by Theresa May really move on those red lines?

In Brussels and Dublin, officials were anxious to wait and digest the paper, unwilling to comment beyond broad expressions of welcome.

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May's problem is that she must face both ways at once – assuring Brexiteers that she is not selling out on fundamental values and on Brexit itself, and EU partners that this represents a clear and qualitative "evolution" in UK thinking, as one British official put it yesterday. One that respects both the EU and UK positions.

Take the customs union red line that will not be crossed. The White Paper proposes that the UK and EU agree a Facilitated Customs Arrangement (FCA), “as if in a combined customs territory”.

This is not a customs union, British sources insist. But the paper’s combined customs territory has an uncanny resemblance to the customs union that is defined in similar language in article 24 of the General Agreement on Tariffs and Trade, the common rulebook of all trade matters.

If it walks like a duck, and quacks like a duck ... And if there’s a political willingness on the EU’s part to see old wine rebottled, it may taste surprisingly new.

And there is a commitment to a “common rulebook” for goods, including agri-food. That sounds awfully like the EU’s demand for full regulatory alignement. But the devil is in the detail, and the UK is insisting it will retain the right to vote down new EU regulations in the Commons, jeopardising access to EU markets if necessary. Not the sort of certainty EU states will want.

To the table

Both of these cornerstones of the UK paper are unlikely to run in their present form, but should be enough to get the EU to the table.

The EU Brexit task force has repeatedly warned about attempts to cherry-pick aspects of the single market, and there will undoubtedly be concerns that the scope of the UK “rulebook”, as it admits, will not be comprehensive.

EU officials have also expressed concerns about the practicality of suggestions the UK will be able to apply “differentiated” tariffs to third-country goods crossing its external border – one rate for goods for sale on the UK market, another for those onward bound to the EU. It is a system that London says can be supported by trusted trader schemes and technology.

But such controls, and checks on goods’ conformity with EU standards, would have to be applied with a degree of certainty and rigour sufficient to assure all 27 member states of their robustness.

There is also in the British paper a determined attempt to blur differences with the EU over the role of the Court of Justice of the European Union in adjudicating on aspects of a new relationship.

In some areas British courts would rule on issues, albeit, they say, taking close account of the jurisprudence of the Court of Justice.

But in others, for example in matters relating to any of the many EU bodies that the UK wants to remain part of, the paper accepts the court’s writ must rule. Another step in the right direction.

Biggest impediment

Other proposals, such as that for a governing body and a joint committee to oversee the agreement on a day-to-day basis, should prove acceptable. And UK acceptance of the reality that it will not be able to get free access to the single market for financial services will come as a relief to EU negotiators, who were expecting a fraught battle over the issue.

But there was in the White Paper a dog that didn’t bark: the backstop.

Since the White Paper is not about “divorce” issues such as the Brexit Bill, citizenship rights or the Irish Border, it only touches on the thorny issue of the backstop. That remains the single most difficult impediment to an agreement in October, without which there will be no withdrawal agreement and no transition. A no-deal.

The paper suggests that, becauses a new “facilitated customs agreement” between the UK and the EU would obviate the necessity for borders with the EU it would make any interim backstop arrangement for Northern Ireland redundant.

But it does not suggest how a backstop, which the paper acknowledges again the UK will have to sign, can be agreed in the first place.

British sources were suggesting yesterday that the UK is still wedded to a formula for the backstop based on an all-UK customs arrangement as a way of preventing the separate treatment of Northern Ireland. That has already been ruled out by the taskforce and Michel Barnier.

Irish officials will be worried that the UK appears still to believe it can sideline the backstop discussion in the hope that the broader talks will produce a solution. That will not happen.