The draft withdrawal treaty – implications for the Irish border

Posted in UK and EU legal framework

When it was confirmed in December that the UK and the EU had made 'sufficient progress' in the Brexit negotiations to begin talks about the future trading relationship, one of the key pillars of agreement was in relation to the Irish border.

In an attempt to marry the aspiration of maintaining a soft border between Northern Ireland and Ireland with the apparently contradictory intention that the UK will no longer be part of the Single Market or of the Customs Union post-Brexit, the UK confirmed that it “remains committed to protecting North-South co-operation and to its guarantee of avoiding a hard border”. Moreover, it confirmed that, in the absence of any other agreement between the EU and the UK, it will maintain “full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 [Good Friday] Agreement.” However, at the time, there was little clue as to how this would be achieved in practical terms.

The EU’s draft withdrawal treaty, which comprises a draft text covering the terms of the UK’s departure from the EU, devotes a substantial amount of its content to the question surrounding the future of the Irish border. The draft proposes a "common regulatory area" between Ireland and Northern Ireland. Under this proposal, there would be free movement of goods between Northern Ireland and Ireland and Northern Ireland would be subject to EU customs rules. The upshot of this would effectively be to bring Northern Ireland within the Customs Union, thus transferring the real border between the UK and the EU to that between Northern Ireland and the rest of the UK.

Theresa May immediately rejected the proposal on the basis that it would "threaten the constitutional integrity of the UK". In response, both the Irish government and the EU sought to reassure that this initial proposal was a back-stop option and invited the UK to come out with an alternative.

As set out in the Joint Statement issued by the UK and EU in December, the alternative options would be a bespoke agreement or the UK maintaining full regulatory alignment with the EU. In terms of what either might look like, the UK’s earlier position paper had proposed either a “highly streamlined customs arrangement between the UK and the EU, streamlining and simplifying requirements, leaving as few additional requirements on UK-EU trade as possible” or a “new customs partnership with the EU, aligning our approach to the customs border in a way that removes the need for a UK-EU customs border”.

However, the fundamental problem remains: how can the UK ensure the absence of a hard border in Ireland while being outside of the Customs Union and avoiding a hard border between Northern Ireland and the rest of the UK? The EU is requiring more detail from the UK Government as to how its proposals may be achieved without the creation of a “common regulatory area” and as EU negotiators have made clear, time is rapidly running out for the parties to agree a deal.

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