The European Commission today published its plan to avoid a hard border between Northern Ireland and the Republic by keeping Northern Ireland in the Single Market and Customs Union after Brexit.
It follows revelations that Prime Minister Theresa May’s hard-line Brexiteers, led by Boris Johnson, made clear that they are prepared to live with a hard border and happy to blame the EU for its return.
The 120-page draft withdrawal agreement, whose legal text on Northern Ireland was shown to Ireland’s Foreign Minister and Tanaiste Simon Coveney in Brussels on Monday night and approved by Ireland, says the EU will insist that Northern Ireland be considered part of the Union’s customs territory after Brexit.
It has 168 clauses, two protocols and an annexe and says the European Court of Justice in Luxembourg will be the arbiter of disputes over the withdrawal agreement.
It was immediately opposed by Tory Brexiteers and the DUP, whose ten MPs give Theresa May her slender Commons majority, as interfering with the constitutional integrity of the United Kingdom.
Overnight Downing Street said Mrs May would not contemplate any measures that undermined the UK’s constitution integrity.
The draft legal text effectively puts the Border in the Irish Sea as checks will be required on goods coming in from the rest of the UK.
As per the short-lived understanding agreed between Downing Street, Dublin and Brussels before Christmas it also calls for laws and regulations in Northern Ireland to closely align those in Ireland – and, by definition, the rest of the EU to minimise disruption to the flow of trade on the island.
It says: “A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established.
“The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protect.”
It does leave the door to a future free-trade deal or new technological solutions. But it is clear throughout that suggestions by the British government that Northern Ireland could make a clean break from the EU without the reintroduction of tariff and customs controls are considered contradictory and impossible by the EU.
The EU has to date insisted that it will only open talks on a future trade deal if “all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible.”
The EU document also says the UK will have to find some agreement with Spain over Gibraltar.
Taoiseach Leo Varadkar has said it is up to Britain to bring proposals to the table if it does not wish to trigger the so-called “backstop” agreement that would fully align Northern Ireland with the rules of the EU to avoid a hard border.
“Now it is up to the UK to bring proposals to the table to make that possible,” he said.
He said the draft Brexit withdrawal treaty published in Brussels gives legal force to the arrangement agreed between Downing Street, Dublin and Brussels last December, also referred to as “Option C”.
“It’s not okay for people, whether pro-Brexit politicians in Britain, people or parties in Northern Ireland, to just say ‘no’ now. It’s incumbent on them if they can’t accept the backstop, well then they must detail how Option A or B would work.”
“One mistake we shouldn’t make is a mistake that a lot of people seem to be making, that one of the political parties, the DUP – as important as it is and as big as it is – speaks for everyone in Northern Ireland.”
Northern Ireland businesses, for instance, do not want a new border, he said.
DUP deputy leader Nigel Dodds MP, who leads his party’s MPs in the Commons said: “This is a ludicrous over-the-top suggestion put forward by Michel Barnier. It will not go anywhere.
“The way forward is to get into the trade talks and then and only then will you know what the border arrangements need to be.”
The final reckoning on the Irish border question will most likely not be until later this year in October when the final Article 50 treaty needs to be signed and sealed by the UK and the other 27 members of the EU, the final stages of negotiation, ahead of the March 2019 Brexit deadline.