Is Boris Johnson limbering up for a divorce battle with the EU?
If potential PM Boris Johnson is to achieve his changes, the divorce battle will be like no stage of Brexit we have seen before.
Monday 24 June 2019 09:24, UK
Having been divorced twice, Boris Johnson will be aware the orderly conclusion of a marriage requires an agreed settlement.
Without one, unhappy matrimony can continue in legal limbo even once all love is lost, and both parties just want it to be over.
What became clear at Saturday's leadership hustings in Birmingham is that Mr Johnson believes the reason the UK departure from the EU has been delayed is an unacceptable divorce settlement.
He has now revealed his proposed solution is to get the divorce done first, and only after that sit down to find agreement on the thorny issues that are currently holding it up.
As he put it at the hustings, he intends to "disaggregate the elements of the otherwise defunct withdrawal agreement".
In practice, this will require Mr Johnson to re-open and re-fight a battle that concluded two years ago.
In May 2017, then-Brexit secretary David Davis said thrashing out the sequencing of the Brexit negotiations was going to be "the row of the summer".
He vowed to push back hard on the EU's proposal that negotiations be split into two phases: the first, the terms of divorce (the withdrawal agreement); the second, the terms of the future relationship.
Negotiations around the divorce would focus on citizens' rights; an agreement on what financial obligations the UK would honour and the issue of preserving an open border on the island of Ireland.
Mr Davis argued at the time that agreeing all of that before talking about trade was illogical.
He said: "How on earth do you resolve the issue of the border with Northern Ireland and the Republic of Ireland unless you know what our general borders policy is, what the customs agreement is, what our trade agreement is?"
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But a month later, Brussels got its way and the UK agreed to the schedule for talks.
Ministers justified the U-turn by repeating that "nothing is agreed until everything is agreed", and asserting with confidence that both phases of talks would in any case be concluded by the end of the Article 50 process on 29 March 2019.
When it began to dawn on negotiating teams that this was looking unlikely, they devised an "implementation period".
The idea was that the UK could leave on 29 March, and then use the period up to December 2020 to get infrastructure and laws in place to ensure a smooth transition into the agreed new trading relationship.
As it turned out, Theresa May's struggles to get the withdrawal agreement ratified by parliament meant the negotiations on future trade never properly started, let alone concluded.
But despite that, had Mrs May's withdrawal deal passed, there would have nonetheless been an implementation period and it would have provided the space to hold trade talks with the UK having at least partially left the EU.
That transitional space, however, was always going to be contingent on the withdrawal agreement being accepted.
What Mr Johnson is now proposing is breaking up the three parts of withdrawal agreement but keeping the implementation period.
He says a deal should be done on citizens' rights before the UK leaves the EU in October, but that the £39bn financial settlement should be "reserved" until a trading relationship is agreed, and the issue of the Irish border should be moved to where it "logically belongs" - in the negotiations about the future in the implementation period.
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Suggestions of this sort have long been dismissed in Brussels, but the proposal has also drawn stinging criticism from some of Mr Johnson's fellow conservatives, including former leadership rival Rory Stewart and his supporters.
Mr Stewart said on Twitter: "This fairy-tale of no-deal negotiating is a miasma of ambiguity and self-contradiction - it will disappoint its supporters and damage us deeply."
Justice Secretary David Gauke said: "The implementation period is part of the withdrawal agreement. No withdrawal agreement means no implementation period."
This line of criticism rests on the assumption that David Davis's "battle-that-wasn't" over the sequencing of the talks is lost to history, and that the EU will never countenance such a revisionist approach from a new leader.
Boris Johnson's calculation is that there is scope to prove that assumption wrong.
He is hoping his clear commitment to leave on 31 October with or without a deal makes his threat of doing so on World Trade Organisation terms more credible than Theresa May's professed belief that "no deal is better than a bad deal".
In effect, he is aiming to turn the tables and force the EU to blink faced with a real prospect of no deal.
For this to work, however, Brussels would need to accept the financial settlement is up for debate.
And abandon the insurance policy of the Irish backstop - the commitment of the UK to stay in the EU's customs and regulatory framework to maintain an open border in the absence of a trade deal that achieves the same effect.
The chances of that happening are extremely remote.
If Boris Johnson is to achieve changes of that nature between now and 31 October, the divorce battle in the months ahead will be like no stage of Brexit we have seen before.
Of course, the EU may not choose to engage.
But if they do, David Davis may well be proved right.
The sequencing of the Brexit negotiations could end up being "the row of the summer", despite his prediction being two years out.