Another week, another slew of reports about inner Cabinet discussions on Brexit. Nearly two years after the referendum and over a year after Article 50 was triggered, minds are finally turning to what we might do. Better 10 months before we leave than never.

Last week’s debates were about the UK’s goal on customs, with MaxFac (using trusted providers and technology for ‘maximum facilitation’ at borders) edging ahead. It would be Government policy already but for Northern Ireland. And this week, the Irish question returned in its other guise.

The backstop bites

When she got her all-important deal at the EU Council in December, the Prime Minister agreed to three, seemingly innocuous things:
(1) The aim was to create a frictionless Irish border under the UK’s future relationship with the EU.
(2) If that wasn’t possible, ‘specific solutions’ would apply in Ireland.
(3) If and only if those solutions couldn’t be agreed, Northern Ireland would remain aligned with the single market and the customs union.

The last has become known as ‘The Backstop’. It got the deal through and was vague enough, about circumstances Mrs May thinks unlikely, to win her consent. Unfortunately for her, the European Commission is playing a different game. In February, the backstop was weaponised. Without addressing the desired relationship, the Commission published detailed proposals for the backstop that put the border in the Irish Sea, severing Northern Ireland from the rest of the United Kingdom. Brussels wants this written into the Article 50 deal before even discussing (1) or (2).

As a negotiating tactic, this is blatant but effective. By ensuring any breakdown in the talks on a Free Trade Agreement result in something “no UK prime minister could ever agree to,” as Mrs May put it, the Commission would have the whip hand. Moreover, it skews the whole basis for those talks towards the Customs Union and the regulatory alignment that Brussels wants. 
Amid genuine and feigned concerns about the peace process, the UK would be boxed into a corner.

The UK bites back

Knowing all this, for once the Government has decided to play the Commission’s game by the EU’s rules. The Cabinet group agreed a counter-proposal for the backstop on Tuesday afternoon. Instead of a border in the Irish Sea, the whole of the UK should remain, at least temporarily, in “full alignment with those rules of the internal market and customs union which support north-south co-operation, the all-island economy and the Good Friday Agreement”. There would be no need for border controls.

At first glance, this looks like a Brexiteer’s worst nightmare. Properly understood, it’s actually Brussels’ worst nightmare: a backdoor pass to the single market, but cherry-picking all the way, with no requirement for freedom of movement because this is already covered by the Common Travel Area between the UK and the Republic of Ireland.

There is no prospect that Michel Barnier or EU27 governments would ever risk this becoming the future relationship (nor would the Tory backbenches or the ECJ, for that matter). The question becomes how they reject or avoid it. De-weaponising the backstop is the Government’s aim.

Backstop to transition

This is where time limits become important. Take any variant of the UK proposal and apply an end date: immediately, it ceases to look like a backdoor and starts to resemble an extension to the transition period. And an extension until 2023 or beyond is exactly what the UK needs to make a MaxFac solution work, according to many of its advocates.

Last week’s and this week’s debates conjoin. Naturally, the Irish Government will be hostile to the notion of a time-limited backstop, but its own, politically-driven position may soften under pressure. Whatever happens, the EU’s insistence on its third-choice preference being agreed in detail before discussing either of its first two will be tested. Less detail would suit the UK just fine.