Habemus ‘sufficient progress’?

When in the morning of 8 December, the news broke that a deal had been brokered between the governments of the Republic of Ireland and the United Kingdom on the Northern Irish border, it ended a week of tense negotiations which threatened to unravel the negotiating goodwill built up over months. How did we get here, and what does the agreement mean for the remainder of Brexit divorce negotiations?

Sufficient progress

Following UK Prime Minister Theresa May’s notification of Article 50 to the European Council on 29 March 2017, EU Heads of State and Government, on 29 April, approved strict negotiating guidelines for the European Commission and its Chief negotiator Michel Barnier. In their negotiating guidelines, leaders committed to a two-phased approach: negotiations on the UK’s future relationship with the EU (including on trade, single market access, aviation rules) could only commence once the European Council had determined that ‘sufficient progress’ had been made during Mr. Barnier’s negotiations with UK Brexit Secretary David Davis on settling the UK’s remaining financial obligations to the EU budget and agencies, ensuring EU and UK citizens’ rights after the UK’s withdrawal and on ensuring the continued support for the Northern Irish peace process and Good Friday Agreement. On the latter, specifically, that means avoiding a hard border on the island of Ireland.

Contentious Irish border

Following ‘sufficient progress’ agreements reached on citizens’ rights and the ‘Brexit bill’ by late November, the UK’s only future land border with the European Union turned out to be the most contentious of the negotiating topics. While neither party is seeking a hard border on the island of Ireland, the UK’s decision to leave the EU’s single market and customs union, in most opinions cannot be compatible with a border- and frictionless arrangement. Considering Northern Ireland’s contentious political set-up, an agreement would have to comply with both, the Good Friday Agreement and receive the backing of Northern Irish political parties; namely the DUP, which props up Theresa May’s government.

Full regulatory alignment

As such, negotiators had to find a special solution for Northern Ireland. Following a draft agreement on 4 December, which failed to receive the DUP’s endorsement, the revised final agreement was extended to include provisions that, in the absence of agreed solutions, Northern Ireland will maintain ‘full regulatory alignment’ with the rules of the single market and customs union (Art.49) while equally maintaining ‘unfettered access’ to the UK’s internal market without regulatory divergence.

Habemus ‘sufficient progress’?

At their last European Council of the year on 14-15 December, EU Heads of State and Government are expected to adopt conclusions that sufficient progress had been made in order to progress to the discussions on the future relationship between the partners.

However, following UK Brexit Secretary David Davis’ comments following the agreement, that the deal was not legally binding but rather aspirational, EU Ministers included specific wording that progress on future Brexit talks would be suspended if the UK did not stand by its commitments and include all provisions of the Brexit deal in its (EU) Withdrawal Bill.

With the European Council summit certain to confirm sufficient progress, negotiations on post-Brexit transitional period and future relationship are set to begin by March 2019 at the earliest.