The EU has spelled out the consequences of a failure by Britain to come up with an alternative plan to avoid a border in the North and protect the peace process. The fallback position will give the North a quasi special status and see it remain within the EU customs union.
This document is what was agreed by Britain and the EU, including Ireland, in December. It is a draft withdrawal deal, covering citizenship rights and the position of the North.
Three options for the North after Brexit were agreed then by British prime minister Theresa May to avoid a hard border.
Britain could remain embedded in EU structures or come up with its own bespoke or technical recommendation.
The third option, called the “backstop”, is that the North will, in the absence of a final Brexit deal, maintain full alignment with the south and EU single market and customs union rules that support the peace process.
The 120-page text from EU Brexit negotiator Michel Barnier has confirmed that, at the moment, this third option will go ahead — without other suggestions.
This would essentially guarantee the status quo for the North, keeping current EU rules for sectors such as agriculture, fisheries, environment, energy and transport among areas.
However, the draft text remains to be finally agreed with London, with Ms May dismissing it yesterday, saying it would “threaten the constitutional integrity of the UK”.
Nonetheless, if there is no agreement on this withdrawal text, it is hard to see how the EU and its members, including Ireland, will agree to move on to negotiating a Brexit transition deal with London as well as the crucial opening terms for a future EU-UK relationship.
So what does this draft Brexit text say about the EU’s fallback position of keeping the North in the customs union and maintaining the status quo?
Overall, there are 170 articles in this document. A large number pertain to the North. The document talks about protecting the Good Friday Agreement.
It recalls Britain’s commitment to protect North-South co-operation. Crucially, it notes Britain’s “guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls”.
While saying further talks can take place, it says this special protocol on the North is based on the “third scenario of maintaining full alignment with those rules of the Union’s internal market and the customs union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 Agreement”.
The text guarantees the protection of rules North and South, including in areas of taxes, excise duties, sanitary and farming regulations as well as the production of agriculture and fisheries products, electricity markets and the free movement of goods.
A lot of this remains to be worked out. Mr Barnier said a lot of this was important when it came to protecting standards of products or animals coming into the union.
The text also protects the rights of individuals, common travel, communications co-operation north and south, and ensures regulations are aligned in both areas of the island.
Many of these details remain to be teased out by a special Brexit joint committee made up of officials from the EU members and Britain.
The document also commits that rules under the European Court of Justice will continue to apply to the North for the fallback option, a scenario leaving the province under EU law.
The fallback option ensures there are no borders in the interior of the island of Ireland. But, the text does specify there will have to be customs officers and checks.
No one is willing to suggest where or how these would be manned, but a likely scenario would mean a border would be over the Irish Sea, resulting in beefed-up port and airport checks.
Dublin is of the view that this crucial element will not and should not be discussed until the future relationship between Britain and the EU comes to the table. This will happen soon.
Nonetheless, for the moment, the draft text signals that, if option three on the North prevails, there will need to be joint EU-UK teams checking goods travelling across regions.
It is not specified, though, where and how this would work. Theresa May told the House of Commons that the proposal would undermine the UK by “creating a customs and regulatory border down the Irish Sea”.
Asked about this yesterday, Tánaiste Simon Coveney stressed that the preference was still that there should be no customs checks, rather that a solution should be put forward to prevent this, with no border.
The feeling in Dublin is that it is a certainty there will be no border checks on the island of Ireland and these so-called joint EU-UK customs teams will be discussed at a later stage, when it comes to negotiating the future trading relationship between the bloc and London.
The reality is that, if there is no border with the north, then a border would apply east and west, where goods travel back and forth. Trade between Ireland and Britain is eight times as much as that with the North.
So this is not a simple solution. It still has major impacts for Ireland and the Government’s preference is that, in fact, Britain keeps its customs and single market aligment and therefore no border or fresh checks would apply.
London opposes this and maintains it would deny Britain a chance to strike new trade deals with other nations. Instead, a so-called unique solution is still awaited.
All eyes are now on Theresa May and Britain and what they will agree or not agree. It is hoped a key speech from the British prime minister tomorrow will outline what other options for the North can be considered, especially London’s promise of a technical solution.
Time is running out. These draft text must be agreed in principle before a key EU leaders summit in late March.
This summit will also consider terms for a transition period deal as well as opening salvos from both sides on a future relationship between Britain and the EU.
If we do not get those discussions under way, the likelihood of Britain crashing out of the union with no deal increases.
Some final Brexit deal also must be in place by October so it can be voted on by the EU parliament and member states before the exit date of March next year.
Michel Barnier’s hardline Brexit stance fired up British Conservatives and Unionists in the North. Amid accusations of trying to strong-arm Ms May into declaring her position, the EU Brexit negotiator insisted the backstop plan to keep the North in the EU customs union would be ditched if Britain’s sets out its alternative.
British foreign secretary Boris Johnson more than raised eyebrows this week when he suggested a frictionless border in the North could operate like the congestion charge in London.
More technical genius will be needed than this to avoid the backstop deal being triggered.
Mr Barnier said there were no surprises in yesterday’s draft withdrawal text. For Ireland, there seemed to be none and the government are satisfied the text complies with the so-called bulletproof deal in December.
But for arch Brexiteers, the opposite is true. DUP leader Arlene Foster, who will meet Mr Barnier next week, warned that the text was “constitutionally unacceptable” and would be “economically catastrophic” for the North.
Ms May relies on DUP support for her government. This is a very fragile position for her and the Tory-led administration.
But the next step or decision will be from London. The EU, and Ireland, have now called Ms May’s bluff and the pressure is on Downing Street to outline its vision for a frictionless border.
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