Ten days ago the EU set Theresa May a deadline.
“If no progress within next 10 days, it will not be possible for Tusk to propose draft guidelines for the second phase of the talks on the transition and the future relationship,” an EU source briefed out.
The source added ominously: “The UK will need to give credible assurances as to how to avoid a hard border (on the island of Ireland) before 4 December, as it is still unclear how this can be done.”
Those 10 days are now up – the deadline is upon us.
At lunchtime today, Mrs May will sit down for a meal with the President of the European Commission, Jean-Claude Juncker, at a private dining room inside the Berlaymont building – the EU’s engine room.
Also around the table will be the Brexit Secretary, David Davis, and his opposite number Michel Barnier, plus, in an all important oversight role, the President of the European Council, Donald Tusk, who represents the leaders of the 28 EU member states.
When historians look back at Brexit, it’ll be they, not us, who make sense of it all – they will identify key moments.
This lunch, along with the weekend of intense diplomatic work which preceded it, may well be one of those moments.
It’s all about words.
Two words – “sufficient progress” and, more broadly, carefully chosen forms of words to allow Mr Tusk to hail “sufficient progress achieved”.
Months ago, when these Brexit negotiations began, the EU set the terms of the divorce and since then, it’s they who, like it or not, have called the shots.
The thing is, this isn’t like any regular divorce which is based on the acceptance that the two sides are equal.
“We are not equal parties at all,” one senior EU figure told me back in the spring. “The Brits can’t claim the house! It’s a unilateral act.”
That set the tone. The EU side has run the show. They began by stipulating sequenced talks: phase one – the divorce; phase two – the transition and future relationship (David Davis once insisted the sequencing would be “the row of the summer” but quickly capitulated).
Three key “baskets” were identified as the phase one issues: citizens rights, the financial settlement and the Irish border.
Only when “sufficient progress” was made on phase one, could discussion begin on stage two.
Many (in the UK) thought this sequencing to be nonsensical – how can any of the three divorce baskets be squared away without discussion of the future relationship?
The point, says the EU side, is that the divorce baskets don’t need to be concluded or solved now. The EU just asks that sufficient progress is made on them all.
And that means different levels of progress for different baskets.
:: Sufficient progress on the Brexit bill
For the financial settlement (the Brexit bill), it means the UK “honouring its commitments” and “paying its dues” on departure. No one-off final payment is required. The settlement can be paid over a lengthy period of time. At the lunch, Mrs May will not give a figure nor will the EU be asking for one. Just a commitment, an agreed method to calculate the settlement and a breakdown of what’s covered.
There’s an awkward catch to the Brexit bill though. Domestically, Mrs May needs to demonstrate that she is paying a bill to secure a good trade deal (hardline Brexiteers are insisting no money change hands until after trade deal is signed). However, in Brussels, Mrs May must present her payment as something altogether different. It can’t be seen as down payment for a trade deal.
“It’s not a quid pro quo,” one EU official told me. “This is about settling legal commitments of the past…”
“How the money is presented is important,” another told me.
:: Sufficient progress on citizens rights
For citizens rights, the “sufficient progress” test is more woolly. Broadly it’s about maintaining the status quo for the 3 million non-Brit EU citizens living in the UK and the 1+ million Brits living in the EU.
This has been the least difficult of the three to reach convergence. But it’s still been hard and they are not there yet. Will the European Court of Justice have ultimate jurisdiction over EU citizens living in the UK? Will UK citizens living in one EU country be allowed to work without restriction in another? Will EU citizens in the UK be allowed to bring their family to live with them? All thorny issues which may be kicked into the second phase of negotiations.
:: Sufficient progress on the Irish border
The third issue is the most politically explosive: Ireland. Dublin (with the full backing of the EU) has one, seemingly simple, demand from the UK to warrant “sufficient progress”.
Mrs May must give a written, clear, tangible commitment that there will be no return to a hard border between the Republic of Ireland and Northern Ireland.
Crucially, the UK doesn’t need to spell out, yet, how it would ensure there was no border. They just need to state their commitment.
Sounds simple, but given that the UK has said it will leave the single market and customs union, the logical conclusion is a hard border somewhere.
So by committing to no border, the UK could be committing to keeping Northern Ireland inside the customs union and perhaps the single market. Effectively the border moves to the Irish Sea and the island of Ireland remains the single trading entity it is now.
But that would mean a new trade barrier between Northern Ireland and its biggest trading partner – Great Britain.
For the Democratic Unionist Party (DUP) in Belfast, who prop Mrs May up, any attempt to move the border to the sea, or to keep Northern Ireland inside the single market is unacceptable economically and ideologically – it’s one step towards a united Ireland they believe.
Never mind the fact that the DUP is critical to Mrs May’s survival, who represent the views of about half of Northern Ireland’s population.
The EU has always suspected that the UK would use the Irish border issue as leverage to force a good, bespoke trade deal out of Brussels.
After all, a trade deal which goes further than the EU/Canada deal and has fewer restrictions than the EU/Norway deal could solve the border riddle but at what cost to the integrity of the greater EU? Remember the old EU mantra – no deal can be as good as membership.
The Irish question, and the multiple problems within the other two baskets, won’t be solved at this lunch or for many weeks to come.
Today will be about finding a carefully chosen form of words on which the disparate and seemingly irreconcilable parties must agree.
If the diplomats find their words, then the EU’s 10-day deadline will have been met and the “sufficient progress” test will pass in time for the EU summit on 14-15 December.
It will mean the crucial, time critical and extremely challenging transition and trade talks can start in January.
If they can’t find the words? Well then this could be the day historians point to as a key moment of diplomatic failure which precipitated a chaotic and deeply damaging rupture felt hardest in Britain and Ireland but well beyond too – across the European Union.