Brexit talks reach make-or-break: who will blink first?

The UK government has signalled that its proposed “take it or leave it” Brexit plan may be more flexible than initially claimed, after the European Union refused to discuss the plan over the weekend, claiming it was not an adequate basis for negotiation.

One of the most contentious points of the new Brexit plan is how it deals with the question of Northern Ireland. Under the proposal, Northern Ireland would leave the EU customs union, but remain part of its regulatory market for goods, creating a customs border between the Irish neighbours, and a regulatory one in the Irish Sea.

Controversially, whether it stays in regulatory alignment with the EU would be subject to consent from the Northern Irish assembly at Stormont - a body that hasn’t convened since January 2017 and whose power-sharing arrangement effectuively allows the Democratic Unionist party the power of veto. As such, the EU says the solution, designed to reduce border checks is, in reality, only short-term.

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Speaking on the BBC’s The Andrew Marr Show, Stephen Barclay, the UK Brexit secretary, was asked if there was any flexibility on the issue of the DUP veto: “The key issue is the principle of consent,” he said, citing DUP demands that Stormont has some degree of control over any arrangement. “That’s why the backstop was rejected three times… Now of course, in the mechanism, as part of the intensive negotiations, we could look at that and discuss that.”

Even without the issue of the Stormont’s involvement, however, new Brexit plan is still problematic in proposing any kind of hard border at all.

Further, as Barnier said on Saturday, the notion of separating customs borders from regulatory borders challenges the principles at the heart of the EU: “We are a single market,” he said. “That’s a complete ecosystem, with common rights, common norms, common standards, common rules, a common legal system. It requires checks at its borders.”

Here, according to Barclay, there was also still room for manouver. “We’ve set out a broad landing zone, so in the detail of the negotiations of course we can get into the detail as to how operationally they work [and] what legal certainty is required by the Commission as of October 31,” he said.

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A make-or-break week

Negotiators at the EU reacted to last week’s proposal with unanimity. “If they do not change I do not believe, on the basis of the mandate I have been given by the EU27, that we can advance,” said Barnier.

A Brussels diplomat told The Times: “If we held talks at the weekend it would look like these were proper negotiations. We’re still a long way from that. We need to work out quickly whether there is the opportunity to close that gap.”

A consensus has emerged that this week will be crucial if there is to be a deal in place before the 17 October EU summit.

On Sunday, Johnson held a phone call with President Macron of France. “Boris Johnson presented his latest proposals,” an official at the Élysée Palace revealed. “The president told him that the negotiations should continue swiftly with Michel Barnier’s team in coming days, in order to evaluate at the end of the week whether a deal is possible that respects European Union principles.”

“Next week we are going to know how things turn out,” said Dominic Cummings, Johnson’s most senior adviser, on Friday. “If the EU says no then we are not going to do what the last lot did and change our negotiating position. If we don’t get anything next week we are gone.”

Both sides try to shift the blame ahead of potential breakdown in talks

These are the latest steps in a delicate dance between the EU and Number 10, in which both sides seem to want a deal, while at the same time working hard to ensure that if a no-deal Brexit arrives, the other side will be blamed.

Prime Minister Boris Johnson must show the broader electorate that he is trying seriously to find a deal, while assuring Leavers that if he is prevented from leaving the EU on Halloween by the Benn Act, it will be despite his best efforts.

The PM took to the pages of The Sun on Sunday to hammer home his position on negotiations. “The only question is whether Brussels cheerily waves us off with a mutually agreeable deal, or whether we will be forced to head off on our own,” he wrote.

“We are leaving in 25 days. We can do it with a deal if the EU is willing. But they should be under no illusions or misapprehensions. There will be no more dither or delay. On 31 October we are going to get Brexit done.”

How he proposes to circumvent the Benn Act while not breaking the law remains unclear. As Reuters reports, “with the deadline approaching, Johnson has consistently said he will not ask for another delay to Brexit, but also that he will not break a law that forces him to request one if no withdrawal deal has been agreed by Oct. 19. He has not explained the apparent contradiction in his comments”.

Barnier was playing a similar game. “No-deal will never be the choice of the EU – If that happens, it would be the choice of the United Kingdom,” he said.

“Agreement or not, this is not the end of the story. The whole future relationship with the UK remains to be defined.”