Deal or no deal? That is the question, as the moment of truth arrives on Brexit. In the next few days, we will know whether an agreement between the UK and EU is possible.
On the face of it, the omens are not good. Ireland and the rest of the EU reacted furiously to overnight leaks of a British alternative to the Irish backstop. The leaks suggested the alternative would include a series of “customs clearance areas” five to 10 miles from the Irish border to avoid checkpoints. One Brussels insider told me these plans mirrored “what the Irish government would do in the emergency of no deal – they are not the proposal of a government which wants a deal”.
However, first impressions can be misleading, and on this occasion they are. It appears the leaked plan is a few weeks out of date. It formed part of what is rather comically called a UK “non-paper” – tabled for discussion but never a formal proposal. UK officials suspect it was leaked maliciously to the Irish broadcaster RTE by Dublin or Brussels in an attempt to bounce Boris Johnson into giving more ground.
The prime minister had hoped to avoid the destabilising EU leaks which made life difficult for Theresa May, but he too has now experienced Europe’s hardball tactics. There are signs the leaked customs plan had already been dropped by the UK because it wouldn’t fly. Johnson suggested today it would not feature in his final plan, which will probably be tabled on Thursday and might be trailed in his closing speech to the Tory conference tomorrow.
But customs remains the sticking point – and the most likely deal-breaker. While regulatory issues can probably be fudged, the UK and EU are still poles apart on customs. Johnson sees the UK having a single customs territory as a fundamental issue of sovereignty. But he is starting from a difficult place because, in the EU’s eyes, he has abandoned May’s promise that there would be no border “infrastructure” or “related checks and controls”.
The UK’s insistence on customs checks makes a deal less likely than likely. But there is still an outside chance. The crucial question is whether the EU dismisses the UK’s final proposal out of hand. If negotiations enter a “tunnel” before the summit of EU leaders on 17-18 October, which basically means a news blackout, then progress is being made; if there are more leaks, things are probably going badly.
The hope in Team Boris is that there will be enough in the UK plan to persuade the EU to engage constructively, so the two sides can “jump together” and strike a deal. The EU does want an agreement, to finally lift the Brexit cloud hanging over it and to avoid the blame for a no-deal exit. Brussels officials are well aware of Johnson’s desire for a “people versus parliament” election, a ballot that requires the EU to share the role of the bad guys with “Remainer MPs”.
Johnson is under more pressure to land a deal because of the Benn Act, which will force him to seek an extension of UK membership if no agreement has been approved by 19 October, just one day after the EU summit.
A deal would spare Johnson the nightmare of squaring the circle of his own making; he has said he will obey the law but that the UK will leave on 31 October anyway. So he has every incentive to go the extra mile.
It’s possible he will end up with something not markedly different to May’s withdrawal agreement, but will try to dress it up as very different. If that happened, he would have to clear the hurdle of getting his deal approved by the Commons. Again, difficult but not impossible. Government whips hope to limit the number of hardline Eurosceptic rebels to around 10, and cancel that out with 15 pro-deal Labour MPs. Johnson might ask the EU to refuse an extension to sharpen the choice for MPs as between “deal or no deal”. But it is unclear whether the EU would play that dangerous game.
If there is no deal, Johnson would probably stall for time – but would quickly end up in the courts again. Ministers privately expect the judges would swiftly order the government to comply with the Benn Act by seeking an extension. One option then, widely discussed this week in the margins of the Tory conference, is for Johnson to obey the law under duress, in the hope that Leave voters do not punish him at the ensuing election because he has done his best to avoid an extension.
There are conflicting views, both in London and Brussels, about whether Johnson really wants a deal. We are about to find out.
As one cabinet minister put it: “Both sides will have to move a lot further. That includes us.”
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