The inside story of how Theresa May and Britain's Brexit team secured the deal with the EU

Theresa May and her team fly back to London after Brexit negotiations
Theresa May and her team fly back to London after Brexit negotiations

It was shortly after 11 o’clock on the night of Thursday December 7 that an exhausted-looking Theresa May stepped into her outer office at 10 Downing Street to pick up the phone to Arlene Foster, the leader of the Democratic Unionists in Belfast. 

The call – the second of that evening with Mrs Foster – marked the final roll of the dice at the end of 72 hours of frantic negotiations to salvage a Brexit deal that had imploded in ghastly slow-motion in Brussels the previous Monday.

A technical glitch had prevented her from taking the call in her private office, forcing the Prime Minister to take it in a room full of senior officials. They listened anxiously as the conversation unfolded.

To add to the tension, officials who would normally be patched into the conversation by the No 10 switchboard were stuck listening to only one side of the conversation as Mrs May, sitting hunched forward and cross-legged on the other side of an official’s desk, tried to sell the agreement.

Late that afternoon consensus had finally been reached with Brussels and Dublin on a new text that gave several additional reassurances to the DUP that Northern Ireland would not be forced to accept “special status”. Now it just needed Mrs Foster’s word to seal the deal.

Prime Minister Theresa May departs the UK
Carry on regardless: Theresa May's boards her plane to Brussels on December 8 as Government officials frantically try to win DUP approval for the Brexit deal Credit: FLICKR/number10gov

Even heard from one side, the call was clearly difficult. Mrs Foster, sitting at home in Enniskillen, asked for more time, but Donald Tusk, president of the European Council, had privately made clear to the British that the next day – Dec 8 – was the absolute deadline if the UK wanted to make progress at the EU leaders’ summit this week.

Mrs May’s plane was already fuelled and waiting at RAF Northolt to take her to Brussels for an early morning press conference to shake hands formally on the agreement with Jean-Claude Juncker, president of the European Commission, but after Monday’s debacle, the PM wanted the green light from Mrs Foster.

It did not come. Mrs May, as measured in private as in public, ended the call with a polite expression of regret that “we are unable to find a way to work together”.

It was at that point that Mrs May announced that she would to go to Brussels anyway. The decision gave her officials less than six hours to win final approval from Mrs Foster, fully aware that a repeat of Monday’s implosion would destroy what remained of the Prime Minister’s already tattered credibility.

To paraphrase the words so often favoured by Michel Barnier, the EU’s chief Brexit negotiator, this time the clock really was ticking.

A jittery July

No-one could make light of the drama that unfolded that Thursday night in No 10, but over the previous six months the men and women charged with extracting Britain from the EU had grown somewhat accustomed to crisis.

The first rock in the long road leading to the December denouement in Downing Street appeared as early as that July when Mr Barnier threatened to cancel the second round of talks that were due to open in Brussels on July 17.

Mr Barnier, a former French foreign minister who would perfect an air of weary superciliousness over the course of the next five months, had demanded that Mrs May’s government publicly acknowledge that the UK would have bills to pay after Brexit.

The statement to parliament finally came on the Friday – July 15 – conceding that Britain’s financial obligations to the EU would “survive the UK’s withdrawal” and that “these need to be resolved”.

The acknowledgement of the UK’s “survivable obligations” carried huge meaning for the EU. The UK Government’s position was less hardline – David Davis, the Brexit secretary, talked of legal but also “political” and “moral” obligations – but defining those “survivable obligations” would dog the negotiations for months.

When the first substantive round of talks opened in July, Whitehall deployed in force. Some 98 UK officials travelled from London, gathering at the UK Permanent Representation to the EU – or “Uck-Rep” as it is known.

As the teams formed loose huddles in the first floor conference room, they were called to order by Oliver Robbins, the lead UK negotiator and Mrs May’s so-called “sherpa” in the negotiations, who addressed the room.

Although the 42-year-old keeps a low profile in the media, his civil servant colleagues describe him as a man with a “phenomenal memory” who can hold a room, speaking at length without notes on complex areas of policy.

“It was a big moment. Everyone was nervous and Olly was very straight,” said one of those present. “He said this was ‘the biggest negotiation any of us would ever do in our careers’, that we needed to get it right – and that he had total confidence we would.”

An angry August

The July round of negotiations had concluded with an amiable enough press conference at which both sides agreed they had done useful work scoping out each other’s red lines, but that more work needed to be done.

As a goodwill gesture, Mr Davis and Mr Barnier shared a lunch of Scottish scallops and British lamb at the splendid residence of Sir Tim Barrow, the bewhiskered UK Permanent Representative (ambassador) to the EU.

Excited British press officers dubbed this the first Brexit talks “on British soil” and a sign of determination to make progress, but by the time the next round of negotiations opened on August 28 the mood was decidedly darker.

After the July talks French diplomats were already privately making clear that if the British could not do a deal on financial settlement by the end of the August negotiations there could be no chance of registering ‘sufficient progress’ in October as planned. There was a sense that the timetable was already slipping.

Not for the last time in these negotiations, the EU side professed “disappointment” with the British side which, having agreed under some duress to the existence of those “survivable obligations”, had then refused to elaborate on what these might be.

Since that July round where the EU set out their own legal basis for the €60bn ‘Brexit bill’, the atmosphere had been further strained by senior EU officials from Task Force 50 (the Brits knew who) dismissing the UK’s position paper on Northern Ireland as “magical thinking”.

With Boris Johnson still telling everyone the EU could “go whistle” for a €60bn bill and the cabinet still far from agreed over what an acceptable bill might be, the scene was set for a showdown. It duly arrived.

In a brief appearance before the talks began, Mr Barnier was icy about the British refusal to talk about the bill, rebutting Mr Davis’s demands for “flexibility” by saying in his opening remarks, that “to be flexible you need two points – our point and their point.”

Michel Barnier, David Davis and negotiators
Empty-handed: David Davis was mocked for not having with him any briefing papers in a July 17 photo Credit: THIERRY CHARLIER/AFP/Getty Images

Still, the British side refused to play ball. Led by Mark Bowman, a phlegmatic and vastly experienced Treasury official who arranged for Test match scores to be smuggled into the room under the cover of official documents, the Treasury’s legal experts instead laid out the British view on the Brexit bill in a four-hour presentation containing 23 slides and 47 paragraphs of densely worded text.

It was the Telegraph that broke the story from inside the room. “There was total amazement,” a source on the EU side said. “Everyone was completely flabbergasted that this young man from Whitehall was saying that the EU’s preparation on the financial settlement was ‘inadequate’. It did not go down well.” There may have been anger in Brussels but the scene played well back home.

The episode touch a nerve. Months later EU officials could still be heard fulminating about the temerity of the UK and the “insult” of sending a young official “to lecture experienced EU civil servants.”

The episode played well back home. Brexiteers said this “young man from Whitehall” (actually a fresh-faced 39-year-old lawyer with a hipster beard who wishes to remain nameless) should go to  Buckingham Palace to collect at least a knighthood.

But back in Brussels the mood sunk even lower. The EU side got wind that British officials - fed up with being mocked as ‘not serious’ after Mr Davis did a photo op with Mr Barnier without any negotiating papers - had used a press briefing to deride the European Commission’s own 4-page position paper on the financial settlement as flimsy when compared to the UK’s own legal demolition job.

Behind the scenes, before a fractious Barnier-Davis press conference, there were openly hostile exchanges as top EU officials angrily accused the British of briefing out the secrets of the negotiation room - a charge that frankly seemed a bit rich to the Brits given the months of disparaging leaks on the EU side.

The September stand-off

In hindsight, September was a pivotal month in the talks, even if it would end with both sides no closer to a deal.

It began with a key move in Whitehall, in which Mr Robbins gave up his role as permanent secretary in the Department for Exiting the European Union (DexEU) and moved to the Cabinet Office to head a close-knit team.

Critics dismissed the change as “rearranging the deckchairs” but internally it was seen as a move to sharpen the chain of command. On  many levels it catalysed the negotiation process.

It was no secret in Whitehall that Mr Davis and Mr Robbins had a difficult relationship, not helped by the fact that Mr Robbins had a second official reporting line to the Prime Minister which the Brexit secretary felt undermined him. 

Oliver Robbins, permanent secretary for the Department for Exiting the European Union
Key move: Oliver Robbins became permanent secretary for the Department for Exiting the European Union - reporting directly to the Prime Minister Credit: Dario Pignatelli/Bloomberg

“There were too many hats in the ring,” as one official put it diplomatically.

With a small unit behind him - initially only 10 civil servants, including only one director-level appointment in Catherine Webb, the director of market access at DexEU - Mr Robbins took hold of the negotiations, making it clear in Brussels, Berlin and Paris that he spoke for Mrs May. His newfound authority and autonomy was quickly invested in brokering the text of the speech that Mrs May delivered in Florence on Sept 22, which included concessions – on citizens’ rights and the divorce bill – and cleared the air after the August round.

Mrs May promised to write citizens’ rights directly into UK law (something that had been dismissed as “inappropriate and unnecessary” as recently as July) to give the EU confidence that their citizens could directly prosecute breaches of the agreement in the UK courts. 

On money, Mrs May promised the UK would pay its dues in 2019 and 2020 so that no EU member state would be out of pocket, while also promising, again, that Britain would “honour commitments… made during the period of our membership”. To the frustration of the EU, the British again declined to specify what those might be, but when negotiators met again for the fourth round of talks after the speech there was a distinctly new atmosphere.

Gone were the acrimonious briefings, with both sides maintaining iron discipline. In retrospect, the sound of silence was the sound of deals starting to be done.

Awkward October

Even so, the warmer atmosphere created by the Florence speech quickly began to chill when it became clear after the Sept 24-27 negotiations that Mrs May’s guarantees only extended to filling the €20 bn black hole left in the EU’s seven-year budget framework by the UK’s decision to depart two nearly two years early. Berlin and Paris remained adamant that Mrs May must make explicit commitments to pay EU pensions, future loan guarantees and some €30 bn in commitments due to be disbursed between 2021-23, known as the “reste a liquider”.

To break the deadlock, Mr Barnier suggested a halfway house between phase one and phase two of the talks that would allow Mrs May to claim a political “win” back home while smoothing the ground so both sides could “jump together” at the EU leaders summit on Dec 14-15. The idea created sudden optimism, but it would not last. At a meeting of EU ambassadors on Oct 5, Mr Barnier outlined his idea of early talks on transition to ease progress on the money, but was shot down by the German and French ambassadors. “Barnier was told that he had a mandate and he should stick to it,” said an EU source. The  adversarial tone was summed up by one EU ambassador quoted by the Financial Times. “We are not here to save the Tory party.”

Merkel, May and Macron
Reverse gear: October's EU summit had been designated as the EU deadline for 'sufficient progress' on talks Credit: EPA/OLIVIER HOSLET

The tone was matched on the British side by a deepening sense of grievance, particularly against France and Germany, for failing to capitalise on the considerable personal political risk that Mrs May had taken in Florence.By the time EU leaders met in Brussels on Oct 19-20, Mrs May was reduced to calling for a “new dynamic” in the talks which at that point were actually moving backwards as the UK took its offer on citizens’ rights off the table and declined to discuss the bill.

Such was the hiatus that the EU’s Article 50 working group did not meet for nearly three weeks in October, while Mr Robbins took a week’s holiday and officials worked at breaking the impasse. What they hit on was the idea of “continuous” talks in which technocrats would look for possible “landing zones” in a less politically charged atmosphere. The sixth round of negotiations on Nov 9-10 was downgraded to a “stock-taking exercise” to reduce any expectation of a breakthrough.

Politically, things were not getting any easier. In Paris and Berlin, where Angela Merkel was distracted in an election campaign, lines were hardening, partly in pushback to a major British diplomatic outreach to EU capitals as ministers fanned out to urge leaders to capitalise on the Florence speech. “It was a mistake. It was too much, and it backfired,” recalls one senior EU official.

At the EU ambassadors meeting on Oct 24, Germany again led other member states in taking a hard line, refusing to sanction the creation of EU negotiating guidelines for trade and transition talks. Top EU officials were openly scathing of Mrs May, labelling her ideas on trade as “delusional”.

A nasty November surprise

Political brickbats aside, as the dust settled from the October backsliding, behind-the-scenes progress was being made: Mrs May’s Florence initiative had indeed changed the dynamic. On the financial settlement, Mr Bowman and Stephanie Riso, his opposite number on the EU side had privately begun going through the liabilities line by line. On EU citizens’ rights, the “landing zones” that had become apparent before the October row remained clear.

There were hints of the trouble to come on October 3, when after extensive consultations between Mr Barnier the European Parliament’s Brexit steer group MEPs voted on a resolution that, appeared to hint at a ‘special status’ for Northern Ireland - to the fury of Unionist MEPs.

The resolution noted that given UK’s committment not to put any physical infrastructure on the border, it was “presume[d] that the United Kingdom stays in the customs or that Northern Ireland stays in some form in the internal market and customs union.”

But still officials on boths sides appeared to agree - in public and in private - that the thorny question of how to avoid the return of a hard border when the UK left the single market and customs union could only be resolved when talks on trade and the future relationship got underway in ‘phase two’. That was all about to change.

So when negotiators prepared to meet for the sixth round of talks on Nov 9-10, the third dossier – the Northern Ireland question – was not high on the public agenda. That was about to change.

On Wednesday Nov 8, the day before talks, the British were given a Commission talking points document that turned assumptions on their head. When the UK negotiators saw the document, their blood ran cold. The final paragraph contained a bombshell. It said that it seemed “essential” that the UK should ensure “no emergence of regulatory divergence”, a demand that seemed tantamount to requiring the UK, or at least Northern Ireland, to remain inside the EU customs union.

When the British side was made aware of the document they “went ape****” said one UK negotiator, with Mr Robbins frantically demanding from Sabine Weyand, Mr Barnier’s deputy, whether this was a new test for ‘sufficient progress’. They received what they believed were assurances that it was not.

By the next day the Telegraph, having obtained a leaked copy of the “talking points” paper that Ms Weyand had used to brief EU ambassadors, was preparing to break the news that a massive new front had been opened in the negotiation. The UK tried to play down the Commission paper as mere Irish “grandstanding” but when both Irish government and Team Barnier officials conspicuously failed to back the UK claims, it was clear the Irish paper represented a fundamental change of tack.

By Nov 17, when Mrs May met Leo Varadkar, the Irish Taoiseach, on the sidelines of an EU summit in Gothenberg, neither side was making much effort to conceal their differences. Mr Varadkar was openly patronising. “Sometimes it seems that they haven’t thought all this through,” he said. The news was not all bad. With eyes focused on the Irish question, progress was being made on the money and by Nov 20 the terms of an agreement were signed by the Cabinet and briefed to EU sherpas on Nov 23 by Ms Riso.

Leo Varadkar
Leo Varadkar: 'Sometimes it seems that they haven't thought all this through' Credit: JONATHAN NACKSTRAND/AFP/Getty Images/Ireland's prime minister Leo Varadkar gestures after leaving the luncheon during the European Social Summit in Gothenburg

According to a senior EU source “jaws dropped” when the slides setting out the UK offer were presented. “We got everything we wanted,” the source added, “even the payments on the Turkey migration fund.”

The British certainly didn’t see it like that, arguing that the final bill of €40bn-€45 billion, to be paid over as much as 40 years, represented a solid compromise from the EU’s original net demand of €60 billion. Again, the Telegraph was first to break the news, revealing the financial deal-in-principle on Nov 28, sending the pound instantly higher against the euro and the dollar.

All’s well that ends well (for now)

That left all eyes on the Ireland file. Over the weekend of Dec 2-3 a fresh text was drafted, in which the UK promised to “maintain full alignment” between the UK and the EU in the event that other solutions (dismissed as “magical thinking” by the EU) could not work.

That Saturday night, Arlene Foster, speaking at a meeting of her party’s Lagan Valley Association warned the UK not to “isolate” Northern Ireland and attacked Dublin and Brussels for their “zero-sum” approach to the problem. The final text was all but closed on Sunday and Mrs May’s plane landed on Monday morning in Brussels, Mr Davis by her side. Mr Robbins was waiting airside to brief the PM on the final texts as they were driven into Brussels, sweeping into the vast Berlaymont European Commission headquarters to meet Mr Juncker.

Before his lunch with Mrs May, Mr Juncker had been to brief the European Parliament’s Brexit working group on the Irish deal. At that 11am meeting, sources say MEPs expressed surprise that Mrs May had agreed to the language on “full alignment”, asking Mr Juncker if Downing Street had signed off the text. He reassured the meeting No 10 had indeed given the deal the green light.

“No-one thought to ask about Arlene Foster,” the source said, “Everyone presumed May would have squared it with her.” As history that day has testified, she had not. Mrs Foster was not shown the final text until that morning and when first the old “no divergence” text, then the new “maintain alignment” text was leaked to RTÉ, the Irish state broadcaster, the fragile edifice of the compromise was brought crashing down. At an excruciatingly brief press conference with Mr Juncker,  whose Burberry check tie now seemed oddly hubristic, Mrs May admitted they had failed to reach a final deal.

She returned to London knowing that with the European Council set for Dec 14-15, her team realistically had only two or three days to save the deal to meet the EU deadlines. If the talks dragged on into January it was far from clear whether other settlements on money and citizens, or indeed her own premiership, could survive.

The work began in earnest the following Tuesday morning in the Chief Whip’s office at No 9 Downing Street with James Brokenshire, the Northern Ireland secretary, and Simon Case, a former senior aide to David Cameron who had transferred to Brussels to run the Ireland file, leading the negotiations across the table from the DUP’s team of Sir Jeffrey Donaldson, Nigel Dodds and Emma Little-Pengelly. 

The talks moved from Tuesday into the early hours of Wednesday morning, fuelled with boxes of pizza, a Chinese takeaway and bottomless jugs of slightly stewed filter coffee.  “We could have done with some espresso,” said a source around the table. Piece by piece, a new text was assembled. Later the DUP would say they had secured six changes to the text, including a substantial new paragraph – number 50 in the Joint Report, as well as new lines in paragraphs 44 and 45 – that offered firm assurances of Britain’s commitment to maintaining the UK’s own internal market. The most important, paragraph 50, pledged that the UK Government would ensure that “no new regulatory barriers” would arise between the UK mainland and Northern Ireland, leaving “the same unfettered access” to the UK internal market.

After more back-and-forth between London, Brussels and Dublin on Wednesday the final text was inching closer to agreement but still by 11.30 on that Thursday night, Mrs Foster did not feel able to agree.

Having made the decision to fly anyway, Mrs May went back to her Berkshire constituency – where she prefers to sleep whenever possible – to grab a couple of hours’ rest before her flight to Brussels, leaving Mr Case and the chief whip, Julian Smith, to find a way to win Mrs Foster’s approval. The job was finally done shortly after 2am when two tiny additional changes were agreed to the text and Mrs Foster signalled her assent.

Broadcasters were woken at 3am and told to come to her house for pre-breakfast interviews, and deeply relieved UK officials were able to tell their waking Prime Minister that she could travel to Brussels confident that the deal would stand.

No-one, on either side, was pretending they liked the agreement – it was plain from Mrs Foster’s interviews that she liked it only marginally more than the prospect of the collapse of Mrs May’s government and the risk of letting Jeremy Corbyn into Downing Street. Mrs May touched down in Brussels for the second time in a week and this time the press conference with Mr Juncker went off without a hitch, with the European Commission pronouncing the magic words that the UK had made “sufficient progress” to move onto the next phase of negotiations.

Theresa May, U.K. prime minister, center, and Tim Barrow, U.K. permanent representative to the European Union (EU), right, leave after attending a European Union (EU) leaders summit at the Europa Building in Brussels, Belgium, early on Friday, Dec. 15, 2017
Theresa May, U.K. prime minister, center, and Tim Barrow, U.K. permanent representative to the European Union (EU), right, leave after attending a European Union (EU) leaders summit at the Europa Building in Brussels, Belgium, early on Friday, Dec. 15, 2017 Credit: Bloomberg

A week later, EU leaders confirmed that assessment at the Dec 14-15 European Council, applauding Mrs May when she spoke at their joint dinner on Thursday night, and voting to move forward to talks about transition, trade and the broader future EU-UK relationship.

In essence, and in the best traditions of EU negotiating, all sides had agreed a monumental fudge – a fact that was testified to by the range of conflicting reactions to the deal, with political leaders in Dublin, Belfast, Brussels and London all claiming victory.

A senior EU diplomat summed up the deal: “The joint progress report just drew the same three ‘red lines’ on Ireland all over again, leaving everyone puzzled as to what that might mean, but creating the space to find out.” 

For now, EU officials still think the British idea, that an “invisible border” can be created if he UK leaves the single market and customs union, is “magical thinking” or – as one Irish official put it – “no more founded in reality than a unicorn.”

But the hope – shared by level heads on both sides – is that when negotiations begin in 2018, the nitty-gritty policy questions will start to trump the unanswered political ones that threatened to blow up the Brexit negotiation before it had even jumped the first hurdle.

As one senior UK negotiator drily puts it: “We all know unicorns don’t exist. The question now is whether everyone can agree to make do with horses with shells glued to their foreheads.”

 

 

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