There are four months to go until the European Union’s October 2018 deadline for finalisation of a Brexit withdrawal agreement which can be put to the member states for ratification, and nine months until March 29 2019 when the UK, according to its withdrawal notification, will cease to be a member state.  Meanwhile the complexity of the withdrawal process becomes ever more obvious and challenging.

No issue is more difficult than how to avoid reimposing a “hard” border between Northern Ireland and the Republic of Ireland.  All sides agree that imposing a physical border and related checks would seriously disrupt supply chains within what is a highly integrated island-wide market.  Politically it could imperil the Belfast Agreement of April 1998 which established peace between the various opposing factions in Northern Ireland and the Republic.

Red lines

From the start the UK Government has tied its own hands in the Brexit negotiations, by laying down four basic “red lines”:

• No jurisdiction in the UK of the Court of Justice of the EU;
• No compulsory contributions to the EU budget;
• An end to free movement of people between the remaining member states (the “EU27”);
• A fully independent trade policy for the UK.

In the specific case of Northern Ireland the UK has made several other commitments:

• Recognise the integrity of the Republic of Ireland within the EU;
• Guarantee the integrity of Northern Ireland as part of the United Kingdom;
• Avoid a “hard border” on the island of Ireland, particularly as regards tariffs, regulatory requirements and customs procedures;
• Maintain the common travel area between the UK and the Republic of Ireland which was first implemented in 1923;
• Avoid any difference in legal or procedural treatment between Northern Ireland and the rest of the UK; while at the same time
• “Ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK unless, consistent with the 1998 Agreement ………..distinct arrangements are appropriate for Northern Ireland”.

Thus, for example, the UK simultaneously rejects the idea of special solutions for Northern Ireland but is willing to contemplate them in the field of regulation.  Similarly, according to the basic UK red lines, free movement of EU citizens into the UK would be curtailed while citizens of the Republic of Ireland, recognized as full EU citizens, would still be accorded free movement under the common travel area.

It is a condition laid down by the Democratic Unionist Party of Northern Ireland (DUP), on which the current UK Government’s majority in the House of Commons depends, that there must be no element at all of discrimination in the trade and regulatory treatment accorded respectively to Northern Ireland and the rest of the UK.

Conflicting objectives and playing for time

No solutions that could reconcile all these conflicting objectives have so far been proposed.  The UK Government has accepted that in the overall Brexit negotiation it is impossible to settle all the details of a new bilateral relationship by Brexit day in March 2019.  It has secured the agreement of the EU side to an “implementation period” lasting from end-March 2019 until December 31 2020, during which the UK will continue to observe Single Market and customs union rules while new domestic procedures will be put in place.  In the face of the particular complexities of the Irish border question, however, the UK has gone further and effectively concedes that it may not be possible to agree by end-2020 on comprehensive arrangements for the Irish border that would be acceptable to all parties.  It proposes that if necessary, and for a further period after 2020, a temporary customs arrangement or “backstop”, could be agreed.

This proposal was initially intended to cover Northern Ireland alone, but in recognition of the DUP’s refusal to contemplate any discriminatory treatment of Northern Ireland it was subsequently extended to cover the UK as a whole.  The UK  would continue for this further period to trade with the EU27 free of tariffs and other trade procedures, while being outside the EU’s Common Commercial Policy and able to negotiate with third countries for free trade agreements that did not conflict with the temporary customs arrangement.

The backstop proposal was initially without time-limit, but it caused furious argument within the UK Government and the Conservative Party.  It breaches all four of the UK’s basic red lines, and supporters of Brexit suspected that it was a ruse to circumvent the 2016 referendum result in favour of Brexit and to keep the UK indefinitely within the EU customs union and Single Market.  They demanded that a tight time-limit be written in.  After heated debate, compromise wording set out in a Technical Note published on June 7 2018 concluded that:

“The UK is clear that the temporary customs arrangement, should it be needed, should be time limited, and that it will be only in place until the future customs arrangement can be introduced………The UK expects the future arrangement to be in place by the end of December 2021 at the latest….”

The use in this context of the verb “expects” gets the UK Government off the hook of its internal differences of view, at least for a time, but is vague and commits nobody to anything.

The response of EU Brexit negotiators to these laboriously worked-out proposals has been negative.  Michel Barnier has made it clear that if such an arrangement were put in place, it could apply only to the border on the island of Ireland.  It could not extend to the UK as a whole because that would enable the UK to “cherry-pick” the advantages of intra-EU free trade while avoiding the obligations of membership.  Further, it would not be enough for a backstop arrangement to cover tariffs and trade procedures alone; there would have to be continued full regulatory alignment between the parties. And finally, rather mischievously, Barnier has insisted that a backstop arrangement is by definition open-ended, and that one which was time-limited would not be a backstop at all.

In short, the UK Government’s backstop proposal appears not to have advanced the negotiations to any meaningful extent, nor to provide even a temporary solution to the continuing problems of the Irish border.