Peter Foster @pmdfoster Europe Editor of the Daily Telegraph. Formerly based in Washington DC, Beijing and New Delhi. Opinions my own. Nov. 06, 2018 3 min read

SO. #Brexit boils down to how - or if - the UK can ever leave the dreaded Irish backstop.

There is talk of a "review mechanism". So what might that be? How might it work?

Some thoughts after chats with both sides + experts 1/Thread 

Let's start from the point of agreement.

Both sides say backstop is
a) necessary
b) temporary
c) should be superseded by future relationship

So there does need to be what one EU source calls an "unwinding" mechanism. /2

The problem (before we get to the detail of that mechanism) is that no-one can see what version of the Future Relationship can deliver on UK commitment to no return to a hard border in Ireland.

May's dual tariff or 'MaxFac' unicorns are dead. /3

Some argue for keeping them alive as theoretical possibilities; other that that will only create confusion.

Technology (MaxFac) can only work if the bar is lowered. For now UK has agreed to "no additional infrastructure" on the border. With that stricture it's impossible /4

So we're really actually only talking about an agreement to go unicorn hunting "unless and until" the politics changes enough to enable a deal that allows the UK to leave the Customs Union + do trade deals...WITHOUT putting a border in the Irish Sea. /5

As the Brexiteers are well aware, if UK are settled in backstop, it's hard to see where the political impetus for that kind of change will come from?

Why would Dublin, Sinn Fein, Brussels bureaucracy be motivated to create unicorns then, if not now?

But we digress..

For now, the game is hammering out a backstop review mechanism that the bucaneering variety of Brexiteer can - with a bit of squinting - agree provides a bridge or a pathway to the sunny uplands.

What are the options... /7

First the "unilateral pull-out"... @DominicRaab tried this, going in studs up with @simoncoveney last week as we reported...but it didn't work, as he knew it wouldn't.

Who knows what the real game was...softening up for a more realistic deal? Maybe. /8 

So then we get to the 'review mechanism' which Geoffrey Cox has pitched to cabinet today....what might that look like?

Well, we have one template, which is the Ukraine-style governance mechanism that, per sources, the UK has already agreed for the Withdrawal Agreement /9

What does that mean in practice? Well we understand it's pretty close to what was set out in the UK white paper on the future relationship here... /10 

If you an explanation, then @Raphael_Hogarth has a good one here, for the @instituteforgov 

So.QUESTION? Can something like this work for the Irish backstop....? /11

Ask around - to officials on both sides - and you'll get the reply: "mmm, good question...which I don't know the answer".

Why would Ukraine-style governance for the backstop be a problem for the EU side?

Here @Raphael_Hogarth
sets out the issue to me: /11

So is it impossible? Well, one pragmatist EU diplomat close to Brexitworld accepts that logically, if it works for the WA (apart from Citizens' Rights piece which is separate) then why not for Backstop?

But reckons it would be a "massive concession"... /12

But if that's what it takes to make all this go away, then maybe the member states will agree...even thought the Commission is very unlikely to like it.

But as we've seen with putting an all-UK customs union in the WA, the Commission Legal Service can be squeezed... /13

Why would Brexiteers sign up to this "joint mechanism" which will ultimately be there to enforce whatever is finally agreed in the WA + Irish protocol?

It won't be a magic bullet. The arbitration is there to enforce the treaty fairly, not consider appeals against it. /14

Well, one argument might be that if the EU is dragging it's feet, and failing to act in "good faith" to extricate the UK from the backstop, the Brexiteers will be able to remind the Commission that Article 50 cannot be a legal basis for the future. So... /15

If the UK is stuck in limbo for too long, arguably the Brexiteers' best shot of striking down the backstop might be a suit in the European Court of Justice pointing out it is incompatible with A50 under the EU Treaties...

Oh imagine the sweet irony of that.


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