NEWRY, NORTHERN IRELAND - AUGUST 23: A billboard erected by the Border Communities Against Brexit group watches over the Irish border on August 23, 2018 in Newry, Northern Ireland. Following the United Kingdom European Union Membership Referendum in 2016, 51.9 per cent of British people voted to leave the European Union (EU). People in Northern Ireland voted to remain by a majority of 56 per cent to 44 per cent. The EU Withdrawal Act of 2018 declares the UK will exit the EU on the 29th March 2019. The frontier between Northern Ireland and the Republic of Ireland runs for 310 miles and is the only border between the UK and the EU. During the Northern Ireland Conflict of the latter 20th century the border was controlled by police and soldiers. (Photo by Charles McQuillan/Getty Images)
Resolving the issue of the Northern Ireland border is a key task of Brexit talks © Getty

There remains no bigger obstacle to a deal on an orderly Brexit than the fate of Northern Ireland.

London, Brussels and Dublin are still deadlocked over how to provide post-Brexit continuity for the province — and ensure no hard border divides the island of Ireland — without upsetting the delicate political balance of the peace process or undermining the EU’s single market.

The various strands of the negotiation converge on an eight page legal text called “the backstop”. If Britain and the EU fail to agree its terms — or Westminster refuses to approve it — the UK will potentially leave the union without an exit treaty or any transition arrangements.

EU leaders will discuss the issue at an informal summit in Salzburg on Wednesday and Thursday as they seek a way to narrow differences and “de-dramatise” an issue that could scupper a smooth Brexit.

What is the backstop and why is it needed?

One of the most confusing aspects of the backstop is its name. The arrangements for Northern Ireland are described as a backstop because they would ensure, under all circumstances, that no hard border emerges between Northern Ireland and the Republic.

But since it is included in Britain’s binding withdrawal treaty, some EU diplomats see it more as a “frontstop”. It would apply, in other words, “unless and until” alternative arrangements are agreed after Brexit. If a future UK-EU economic partnership either proves elusive or requires systematic checks on trade, the backstop would remain in force indefinitely.

The EU is the only side to propose a full legal text for the backstop, which it sees as upholding the smooth functioning of the Good Friday Agreement. It ties Northern Ireland to the union’s regulatory regime for goods and agriculture, effectively giving the EU legal control over most of Northern Ireland’s economy.

Enforcing the provisions would require customs and standards checks on east-west trade with the British mainland, something Theresa May said “no prime minister” could accept within the UK. Some Brexiters went even further, comparing it to “annexation”.

What does the EU mean by de-dramatising the backstop?

Michel Barnier, the EU’s chief negotiator, has been working on “improving” the EU’s backstop plan and “de-dramatising” the measures required. The push tries to make the proposal more palatable for Westminster in two ways.

The first is to tackle claims that it would damage the constitutional integrity of the UK. Mr Barnier cites the checks that take place between Spain and the Canary Islands as examples of how sovereignty is not undermined by inspections.

At the same time, his team hopes to downplay the political significance of the checks required to maintain a common regulatory area on the island of Ireland. Mr Barnier wants to show that most checks — especially for goods standards — would take place away from the border in company premises, at airports or at ports handling trade across the Irish Sea.

Mr Barnier hopes to show that policing the backstop would cause minimal “friction” in east-west trade. Only trade in agricultural and food products would need routine inspections when arriving on Northern Ireland territory, as required today.

Other customs and VAT declarations could routinely be handled in transit, on ferries or in pre-shipment forms.

Standards on goods checks would typically be carried out by regulatory authorities behind the border — at factories or in the market place — and would only be systematically applied at the border if specific risks are identified.

For many in London, the view is that these suggestions are welcome but cosmetic. The EU is not proposing to make any fundamental changes to the legal order that would apply in Northern Ireland. The province would remain within the EU’s customs territory, it would follow an EU rule book for goods and agriculture, apply the union’s VAT code, and would be excluded from any post-Brexit trade deals struck by the UK.

What is the UK alternative?

British negotiators want any Irish fallback plan to apply to the entire UK, rather than create regulatory barriers between Great Britain and Northern Ireland.

In the long term, Mrs May sees her Chequers plan as providing the basis for a lasting arrangement that would avoid a hard border while allowing the UK to have an independent trade policy. The EU is unconvinced, and in any event says this would be something to be negotiated after Brexit.

As a “bridge” to this lasting settlement, Britain wants a backstop with UK-wide provisions on customs, ensuring no checks are needed on the Irish Sea. The UK has yet to suggest a plan to deal with the alignment of goods standards, which must also be checked if Britain is outside the single market.

Is there a possible compromise?

The backstop debate turns on three questions: whose rule book will apply in Northern Ireland, who will enforce it and how much of the arrangement will cover the whole UK?

The EU is unlikely to compromise on its rules underpinning goods trade on the island of Ireland. France in particular does not want to create a weak regulatory border that would undermine the EU single market.

Negotiators see more room for compromise over how rules are enforced. Mr Barnier’s team are open to indirect arrangements, so UK courts would enforce laws, taking account of European Court of Justice rulings. They are also looking at ways for the UK to lead the joint teams that would perform the checks.

British officials are also confident they will ultimately secure a legally binding customs arrangement that covers the entire UK, at least for a temporary period. In return, London would accept the principle that the EU’s standards for goods prevail in Northern Ireland.

The final element of any deal would be reassurance. A political declaration on future UK-EU relations would be ambitious enough to make clear the backstop may never be needed. But such a pledge would be in a non-binding statement, meaning it is an aspiration rather than a treaty commitment.

Even with all these elements coming together in a compromise, a deal may not be possible, especially if MPs from Democratic Unionist party, which supports Mrs May’s minority government, decide the concessions to the EU are too intrusive to accept.

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