 Good afternoon. May I'm Dahio Calligan. May I welcome you here to this event with Tony Connolly of RTE? I don't think he needs much of an introduction from me He's been in Brussels for a very long time. He's extremely well-informed and I think most of us in this room all my great deal of debt for his constantly interestingly and very authoritatively reporting from from Brussels and Can I just make sure that your phones are on silent or turned off? Tony his initial speech would be for about 25 minutes or thereabouts on the record and then he'll go off the record For the remainder of the event and we'll finish at about 2 o'clock. Thank you, Tony Thank you very much Dahi and thanks again to the IIEA for the for the invitation. I Think it was just about the end of January when I spoke here last year And I thought what I would do was to To kind of pick up where I left off at the end of January because you remember at that point the The December joint report which basically gave birth to the backstop the famous backstop the hated backstop as it's now called That had been agreed and then the EU institutions were then going to Convert that into a legal text And I remember I came here and I kind of basically brought people up to up to how the backstop had evolved and how it had been Agreed so and for those of you who were here last year And I'm gonna pick up from from where I left off if you weren't here last year. I can recommend a book Which which has all the detail? In just in case you need to be filled in So yeah, so this time last year the European Commission and the European Council We're trying to convert the political agreement of the joint report which contained the backstop Into a legal text and I think it was about about this day it was about the 27th of February last year where the The the Commission draft of of the Irish protocol and the rest of the withdrawal agreement which had been fleshed out at that point and was published RT got a sneak preview the day before so we broke the story of what was going to be in the the backstop and it basically said that in the absence of any other solutions the either Technology or a future trade agreement the way to avoid a hard border on the island of Ireland was for Northern Ireland to remain In the customs territory of the European Union So obviously that worked out really well for everybody concerned that particular text in fact the The officials who were drafting this text congratulated themselves on producing a very dry technical legal legal document which would basically give Legal effects to the joint report, which was a political agreement Anybody who knows the history of the Irish peace processes should know that you can never put the word territory In any kind of legal text when it comes to to Northern Ireland. So obviously Theresa May rejected the the first iteration of the Irish protocol Oh, it was it was the same day that it was produced. She went into the House of Commons and said No British Prime Minister would ever accept it so I think this was kind of on the cards because when The idea of the backstop or the idea of Northern Ireland remaining aligned to the rules of the single market for Goods and to the rules of the customs union It was immediately framed as a constitutional threat by David Davis when it was first Floated in November of 2017 and the British government never really departed from that Analysis and they never there was never any benefit of the doubt When it came to the backstop we can assume that The fact that the DUP was propping up Theresa May's government had a lot to do with that But I think you know the the Conservative Party was also You know very hostile to this idea of any customs or any other kind of border And on the Irish sea the Irish government said that this was actually a political Framing not not a legal framing necessarily So we had this sense of kind of status In March of last year the thing had been rejected In the March European Council the UK were looking for the transition to be adopted by the European Council and the British officials were worried that Lee over Adker would actually try and block the transition until Theresa May Would go back to her commitment on the backstop which was in the joint report I mean the Irish government were really worried that this was a backsliding by the UK So Theresa May wrote a letter to Donald Tusk the European Council president saying that she was effectively recommitting herself to the Irish backstop So in the meantime The the British government was then trying to Kind of negotiate with itself as to what it it regarded as the future relationship Try to try Theresa May was constantly fighting rearguard battles with her own party trying to keep the policy on board So everything then shifted to The mansion house speech that she was going to make I think it was March of last year So basically when she wrote this letter to Donald Tusk that seemed to Reassure the Irish government and the EU that she was sticking to her bona fides on the backstop And so the transition was then agreed, but then we were we had we didn't have a lot of time We had to get the withdrawal agreement concluded by October of last year There was talk about June being another kind of soft deadline But the mansion house speech I think is quite important because if you look at Theresa May's trajectory from when she became leader she spelled out her very kind of hard-line brexit here credentials in the Conservative Party conference in October of 2016 Out of the single market out of the customs union not bound by the ECJ etc Then she get the Lancaster house speech in January of 2017 and that was basically a Reaffirmation of those of those ideals of those kind of desiderata By the time of March Last year and the mansion house speech She had very clearly moved her Preferences to along the the dial to a softer brexit And it's quite interesting to look at that speech because for the first time she links the whole question of the just in time supply chains that facilitates automotive manufacturing in the UK With the Irish border and the and the Good Friday agreement so she I think Prompted by people like Ollie Robbins and Jeremy Haywood the The late cabinet secretary in the UK and figures from the Treasury David Littington and so on she rather surreptitiously Began to edge over along the spectrum to to a softer brexit and her way of Solving the Irish border issue and the just in time supply chain problem was on the one hand to Create this customs partnership between the UK and the EU which of course was a future relationship issue not intrinsically embedded within the withdrawal agreement and And at the same time have some kind of understanding or blueprint for regulatory compliance How how can the UK have frictionless trade with the EU? While while not not being bound by the rules of the single market and the European Court of Justice So the mansion house speech was essentially the blueprint for for checkers Which come out in July which which again was not necessarily to do with the With the withdrawal agreement and the Irish border but was all about the future relationship But of course, it's always very important to remember that the UK have always viewed the Irish border through the prism of the future Relationship they never understood or really accepted that the Irish border question had to be resolved in the withdrawal agreement They thought it was like it's to do with customs is to do with trade. Why can't we solve this in the future relationship? so so her her vision of fixing this problem was a customs partnership where The UK would would have the same tariff regime as the EU and then they would collect duties on behalf of the EU and then reimburse Companies that weren't sending their goods all the way to the EU and so on an extremely convoluted and tricky piece of machinery and which originally had been floated in August of 2016 and So so that was How she thought she was going to fix this conundrum so customs partnership then the single market You would have what she was talking. She was describing as mutual recognition Okay, we've been members of the EU for 40 years. We have the same rules at the moment So when we leave we're kind of going to be equivalent in terms of you know, the regulations governing what we make and what we sell Now she was accepting that there are some rules in which the UK will have to Remain aligned to the EU and other sectors where they want to go their own way, okay? Now this is classic cake cherry picking that the EU was never going to To accept but I but I want to kind of remind people of this because of this This is actually germane to what's happening at the moment But but she was in conflict actually with with the ERG the European research group because they were the ones pushing Technology maximum facilitation where she was quite surreptitiously Pursuing this idea of a customs partnership and sector by sector alignment Which was still high alignment and her ultimate belief was yes, the technology might be there, but it might take 15 years So in the meantime, we need to have certainty for car manufacturers and we need to solve the Irish border so In June the the UK came forward with its its first formal Proposal on on the Irish border, which was a Temporary customs arrangement now. This is the UK wide customs arrangement That Eventually made it into the withdrawal agreement now now what they did was you'll remember the paragraph 49 of the joint report in December of 2017 said that if x and y don't work in other words if technology doesn't work if a free trade agreement doesn't work Then the UK will align with the rules of the single market and the customs union to avoid a hard border protect The good Friday agreement and preserve the all-island economy etc etc now at the time The EU and Ireland saw that as specifically for Northern Ireland because paragraph 49 said this is you know Northern Ireland is a special case etc. This is a specific unique solution for Northern Ireland and also if If paragraph 49 this idea of the UK aligning meant the UK as a whole aligning Rather than UK aligning on behalf of Northern Ireland, then why do you need paragraph 50? Which of course says in a backstop situation, we won't have any Barriers in trade between Northern Ireland and Great Britain. So anyway, there was there was this fundamental You know dichotomy in interpreting the joint report and paragraph 49 So anyway, the UK went back to this and said well actually when we said the UK will align what we really meant was the UK as a Whole will align but on customs. Okay, so if there's a UK wide customs partnership with the EU Then you're not going to have a customs border on the Irish Sea So this is something that the Unionists might actually accept And it will it will provide stability and security for the the supply chains the automotive sectors and so on now the EU were impulsively I think Suspicious and uncomfortable with his idea because first of all article 50 and the negotiating guidelines say that Northern Ireland is a Unique and specific problem that has to be addressed. So Okay, we can bend the rules a bit for an economy the size of Northern Ireland but an economy the size of the UK with you know, fifth biggest economy in the world population of 50 60 million, you know, that's a different order of magnitude. We can't simply just Plunk that into the withdrawal agreement as a as a fully fledged customs union So that kind of was part and then we had the checkers paper on the 4th of July last year And that that's again getting back to this hybrid model of customs partnership and a common rule book And of course that all the attention then was on the resignations of David Davis and Boris Johnson and the further turmoil in the Tory Party And you remember at the time, I mean Theresa May was like surviving week-to-week In July of last year Then September came around, you know, we were a month away from the deadline of getting the withdrawal agreement concluded There was that total trainwreck in Salzburg Where when she came and she made a quite a It was quite a truckulent kind of pitch to the UK to the EU leaders that you know They had to be flexible on the backstop, you know, it It was it was very problematic and so on And what happened from Salzburg because things got so toxic and so public and they created the tunnel Okay, this is Sabine Vaillan's idea that that negotiators could go into a metaphorical tunnel and they They work in conditions of complete secrecy and kind of hermetic environment so that There aren't any leaks which can then you know in the febrile atmosphere of Westminster cannot torpedo What's being negotiated? There was an attempt to get it over the line Before the October Council, which is really the kind of key deadline, but The backstop was still in there The UK was still pushing for this UK wide customs arrangement The backstop was Dominic Rob wanted an expiry date for the backstop Because if you think about it the UK was saying well when the if the backstop takes effect It's not just going to be Northern Ireland. It's going to be the UK as a whole and we will be in this customs union with the EU but The argument that Dominic Rob Put forward then which is the same argument that you have today was that well if we don't get this free trade agreement Negotiated on time then like will will we be stuck in this backstop customs union? situation for you know for a long time where we're you know not We've no say over the rules of the single market and so on and So so there was a fairly intense couple of weeks before and between October and November when the deal was done now there's a There was a way of looking at this by the European Commission We still didn't get an awful lot of coverage at the time So article 50 as you recall Is the mandate for Michelle Barney a's negotiations? and The EU saw article 50 as having three key elements the first element was to deal with the the kind of outstanding issues To make it a withdrawal an orderly withdrawal So that really referred to the the financial exit bill. The second was the the UK's enduring commitments Which in this case was about citizens rights and Northern Ireland And the third was that the article 50 should provide a kind of a bridge to the future relationship Because article 50 says it has to take account of the framework for the future relationship Between the UK and the EU now the problem with this UK wide customs union was it was temporary the UK said this should only happen for a couple of years or whatever 10 12 months or whatever until this Future all seeing all knowing free trade agreement is negotiated, but that didn't fit into the three Categories that are the three kind of key elements of article 50 So what the European Union task force did is to say well look You know we've we've looked at what you do with this customs union idea We it was going to be in the political declaration, which of course was non binding The UK didn't want that because it wasn't legally binding Then they said well we can put it in the preamble of the withdrawal agreement to say that you know we intend to negotiate a temporary customs arrangement with the UK if a If a free trade agreement isn't done on time so that we can avoid this nasty backstop thing And but again the EU said well that the preamble is not it's not legally binding So eventually the you know like the clock was ticking and the EU said okay We will agree to put this in the withdrawal agreement as a fully fledged legal article our series of articles if If it only if it can comply with the three key elements of article 50 the third of course being the important one Which means it's a it's a bridge to the future so as one official said to me it's um The the the temporary customs union or partnership UK wide is a starter home Okay, it's something that's going to be built on for the future So that it's it's sort of it informs the direction of travel Uh, so that was that was the only condition under which the EU was prepared to really bend the rules of article 50 to have this customs union in in the withdrawal agreement because it should really have been in the future relationship because it's not a divorce um, but this is the UK's way of keeping the dup on board essentially so um So so so this was then then put to the UK negotiators mean are you sure that this is what you want? And they said yes Okay, so if you look then at the political declaration, which was published Alongside the withdrawal agreement the phrase built on Crops up time and again the customs union idea is going to be built on in the future relationship. So you can see You know, you can see what's happening here What is happening is that the UK is signaling that it wants to be aligned for customs into the future Now the the way the negotiations happen in the UK in the EU is that you have these meetings and The following week or the next two days later Sabine way and we'll we'll go into the working party of The members so these are officials from all the member states and she will brief the member states or Michelle Barney It will brief the member states. This is what we decided this week Okay, I know it's different from last week, but this is where things are at So so the member states were kept in the loop at every stage Did Theresa may do the same thing in the House of Commons? Absolutely not. She was keeping this in a very tight circle of advisors and senior figures in the cabinet office so that when the withdrawal agreement was being concluded and the ERG could could get a whiff of this permanent customs union and this direct this You know bridge to the future and that was why they said we need to hear what the attorney general is going to say on this so they put an awful lot of pressure on The government to get the attorney general to publish his advice So you remember there was a there was a motion in the in the commons to force the government and I think they rejected it but then they had to come back so The attorney general Jeffrey Cox wrote a letter to Theresa May on the 13th of November saying um, yes, the withdrawal agreement has all these You know phrases about using best endeavors to get the free trade agreement negotiated as quickly as possible So we never have to use this dreaded backstop But under international law if we don't conclude that free trade agreement if those negotiated negotiations break down Then we are potentially trapped indefinitely In the backstop. So so from then on the backstop, you know, just you know, acquire these grotesque You know, uh, sort of visions and implications for the for the conservative government and the brexitiers And that is really why the withdrawal agreement just got hammered when it was when it was published and and agreed on the 25th of November and the The very fact that Theresa May had not You know educated and informed the House of Commons and her party all along as to as to why she was doing this Then it was a shock then to the House of Commons um Obviously Labour were going to vote against it because they just wanted to get to inflict as much damage on Theresa May as possible And a Obviously large parts of her party were going to do that as well. So we've been in this kind of uh Kind of hamster wheel since then because she came back then in December She had to pull the vote in the early early part of December because she knew it was going to be trounced by the House of Commons she came back to the European Council in the middle of December and said I need some help here. We need to do something with the backstop and the the EU Said to her well look um if you want if you're um pre-eminent solution to this is Okay, Theresa May was never going to just say the backstop has to go but she always said that the The key to getting the backstop kind of eclipsed is the future trade negotiation and the EU of leaders at that dinner in in uh in december said well It's not just the fact of having a trade agreement. It's actually what's in it because what's in it will determine whether you need to have you know guys in In in high vis jackets on the irish border checking, uh, you know food products coming back and forward It's it's you know the the irish border will only be kept invisible if it's if it's a free trade agreement of very high alignment And you haven't had that conversation in the uk Not not in the public not in the House of Commons not in your party so that was why Jean-Claude Juncker used the term nebulous Uh, and she kind of took that or the British system took that as a personal slide on her but what he was saying was You know the debate in the uk is nebulous because you you know There's no point in just saying that everything's going to be fine as long as there's a free trade agreement You need to know what's in the free trade agreement Um, and that's the essential problem So so where we're at at the moment is obviously in january um the Jean-Claude Juncker and donald tusk on the 14th of january wrote this letter to say Okay, you know we affirm that the Backstop is temporary unless and until it's superseded by a future agreement We will speed up the free trade negotiations We we can even start the negotiations before you know after the treaty is signed But before it's been formally, you know before you formally leave at the end of march Um, we can do all these things to show our our kind of best intentions and best endeavors and so on But of course, you know, they wrote this letter the day before the house of commons Rejected the withdrawal agreement by the biggest margin in history. So that that didn't really work very well and so So since then The I suppose the analysis after the the january vote was that You know this margin of defeat is so huge that it can't just be about the backstop I mean, it's got to be other stuff And this was actually problematic for The government in london because It was convenient for for london to To have the narrative that it is only about the backstop because if they if they could get the dup on board Then the analysis was that the rest of the of the tori party including large numbers of the European research group would would be on board So so that was why she went for this notorious brady amendment at the end of january In which he said, you know, the house of commons will Support this treaty if you just take that backstop thing, you know, just that just get rid of that and we're fine But obviously that that that was not going to to fly in in brussels so where we're at at the moment is um The focus has now gone back to jeffrey cox the attorney general because of course it was his advice which, uh, you know Frightened the horses back in November december So the idea is if we can just get jeffrey cox to change his legal advice Then hey presto we can get everybody back on board So, uh, there there's kind of three work streams going on at the moment. There is, um Alternative arrangements so the Trees may have had a couple of meetings and if they've had a joint statement saying The eu and the uk will vigorously pursue, uh, you know, uh alternative arrangements meaning technology as a way to Make sure that if the backstop ever even threatens to be applicable then this technology will be here And in turn so in in Brussels they call it unicorn hunting Uh Not disparaging at all whatsoever. Um, but uh, but that's that's the way this is being viewed in in brussels then then the next Element is is, you know looking at legal guarantees Uh that the backstop is temporary. So that's really where the where the tough work is going on at the moment So jeffrey cox has been in brussels back and forward um with steve barkley and they're they're they're looking at again some way of Of you know, the word you hear from the uk is is rebalancing. Okay, so so so the the kind of the uk is is basically upset that The backstop is in the withdrawal agreement. So it's legally binding Um, the thing to replace the backstop is the future relationship But that's in the political declaration which is not legally binding. So this is kind of uh asymmetrical so is there some way of Making that future relationship mandate or blueprint legally binding now. There's an interesting kind of Thread which which I will talk about now. I can I can conclude um That uh, you know, again, we get back to this issue of the future relationship What will it look like you've got the world's the fifth biggest economy in the world Trying to have a frictionless relationship with the eu who are saying it's only frictionless if you're in the single market So if you want to have that kind of frictionless trade, you're rather in the single market or You're so close that you you're going to have to Be under the remit of the european court of justice and so on but the uk um Still believes that you know, it it can't have that kind of integrated Relationship with the eu it's it's simply too big It it's it's manufacturing and construction or production base is is so kind of closely aligned with the eu already That there has to be another way and it's almost like the jeffrey cox is Is going to want to get the a position where he can say If the eu isn't Acting in good faith to give us that More flexible relationship with the you with the eu uh in the future Then we should have the right to walk away from this process so so so If there is any Kind of exit clause, you know, but my understanding is that that's something that that they're kind of pushing um The eu is not going to really buy that because the eu believes that it has regulatory autonomy Only the eu can make the rules for the single market. They they can't have this uh kind of You know ghost uh infrastructure sitting to one side, you know, uh somehow determining Bits of rules here and there for different sectors um so The feeling in brosles that i've been getting in the last week is that You know the best that jeffrey cox can really get is something along the lines of the tusk yunker letter again spelling out that the The withdrawal agreement the irish protocol is temporary unless and until it's superseded by something else there may be some Tinkering with the review clause they're looking again also at the political declaration Can they change the language in there which again reinforces this idea that the backstop is temporary? uh, so they have between now and the 12th of march to to produce a text That will be agreed by michelle barnier and steven barkley with jeffrey cox's You know imprimatur as well And then the idea is that he goes back to the house of commons and says actually Everything's fine. Uh, we've we've got this uh, it says here, you know The temporary the thing is temporary. So we've nothing to worry about. Um, so, uh, so that's where things are at You know, my feeling is that that there is still quite a big gap between the two sides. There's a lot of deep water And the for that reason There is not a huge amount of optimism in brosles So the other big news of this week, of course is that labor has said there's going to be Potentially a second referendum and also that treason may has finally accepted the reality that she may have to extend article 50 Now I can talk about that in the q&a But that's really bringing you up to date Uh from when I was here last last year to to to this week. So thank you very much