Thread by @pmdfoster

Olly Robbins is in Brussels today for more #Brexit talks.

Top of the agenda is the 'insoluble' Irish backstop issue - but how 'insoluble' it really? Is there a way through?

Maybe. Some thoughts after chats with both sides. 1/Thread

telegraph.co.uk/politics/2018/…

First, the problem, real quick.

EU needs 'backstop' that works in all eventualities, including a breakdown in future relationship talks at the end of transition.

With no border in Ireland, there "must" logically be checks between NI and GB to protect single market. /2

The problem is that puts a *customs* border in the Irish Sea, and the UK government cannot live with that, since it splits up UK.

Theresa May was very hard over on this point in her speech in Belfast. Barnier's Task Force 50 blanched last week when they saw how hard over. /3

UK says NO customs border, EU says single market must be protected. So how to square the circle?

On June 7 UK put forward a partial backstop proposal that left *all* UK in a 'temporary customs arrangement' that was v close to a customs union, but not called that. /4

The EU rejected this for several reasons, but most fundamental was that it would lead to creating a 'future relationship', however temporary, via Article 50, which is the 'divorce' clause of TFEU.

EU sources say doing this via Article 50 is legal "anathema". Would die in ECJ/5

So are we stuck? Or is there a solution that gives the EU it's "NI-specific" backstop AND leaves the UK in a de facto customs union so obviates need for customs border in the Irish Sea.

Maybe there is...sources/experts on both sides discussing.

It goes like this. /6

The UK accepts an NI-specific backstop, per current EU draft protocol, with some tweaks.

BUT the EU agrees that as soon as the trade talks begin after Brexit Day, they will create a "parallel backstop" that keeps UK in an identical temporary customs arrangement. /7

In this way, the Irish backstop in the Article 50 Withdrawal Agreement has a "conjoined twin" created under Article 218 (which is for trade) and so has proper legal base, which matters to the EU side.

And there is no customs border in the Irish Sea.
/8

What about regulatory checks, I hear you ask? Aren't the 70% of checks anyway, how will DUP wear those?

Well, I note that Sammy Wilson signed the ERG amendment saying no *customs* border, but silent on the regulatory side. /9

Recall there are already regulatory checks on animal health, timber, fertiliser.

Could these be mutually de-dramatised? Listen carefully to both sides red lines, and you might think so.

Push them back to farm/factory? /10

Even more, could the EU accept lesser checks GB-NI, than they need between GB and EU27? Given the scale of trade etc? If so, then you would obviate issue of same checks Dover-Calais as Holyhead-Belfast, which obviously DUP won't like. /11

So. Have we cracked it? Do you hear cries of 'Eureka!' from the Berlaymont and the Cabinet Office?

No, not yet. Lots to go wrong. This is blue-sky thinking, for now both sides still sticking to red lines.

Some obvious problems... /12

As @SamuelMarcLowe points out to me here, the EU might make the 'conjoined twin' backstop conditional on a deal at end of transition 2020.

Brit sources clear this doesn't fly. Can't. Obviously - since if EU/WA backstop kicks in alone, we're back to square one /13

@SamuelMarcLowe So, could the 'twin' or 'parallel' backstop survive a 'no deal' in Dec 2020? That's a key question.

The next one, is what kind of backstop, or 'temporary customs arrangement' are we talking about?

There was lots in the June 7 paper the EU didn't like. /14

Its possible that you could get around the 'conditional' side, by agree extension clause to the transition period (UK yet to ask for this) so that you can kick the can in event that no deal is done by 2020 - which is inevitable, unless we are talking ultra-skinny FTA. /15

Next problem. Recall David Davis nearly quit over the June 7 paper. Could Brexiteers swallow a fuller customs union that looks - as @DavidHenigUK points out - like it could go on for a very long time.

Recall we are only talking 'temporary' here. Not endstate. But even so... /16

@DavidHenigUK It also, as @alexebarker just pointed out, gives EU an effective veto on leaving customs union, since it decides whether UK-EU deal is enough to not use NI backstop (which still exists) /17

@DavidHenigUK @alexebarker political answer to a lot of those questions probably lies in the Future Relationship declaration - which was Raab's underlying point in his interview.

You can't fix the Withdrawal Agreement issues, without detail on the Future Relationship. Politically one sells the other /18

@DavidHenigUK @alexebarker But consider the crunch, when it comes, and the options that UK parliament are facing in January...February....March...

The markets will be screaming, companies will be relocating, supply chains will be re-orientating to EU... /19

@DavidHenigUK @alexebarker Imagine. It's February...the British jumbo jet is hurtling earthwards...the control column is shuddering in the hands of British parliament...this is the 'no deal' reality....

The options are not good: a general election? retreat to Norway? a 2nd referendum, extend A50? /20

@DavidHenigUK @alexebarker All of these are multiple forms of betrayal...and no decent Brexiteer counter-proposal in sight that fixes Irish border issue?

In those circumstances, does a deal get done, even if pretty ugly one for UK?

Reckon it might. 21/ENDS

@DavidHenigUK @alexebarker PS...I'll be in the comment section of this @telegraph article doing Q&A on all of this from noon UK time today. You can leave questions ahead of time, or join live. (No trolling please!)

telegraph.co.uk/politics/2018/…