“We’re not there yet,” the European Commission spokesman warned on Thursday of the continuing Brexit- backstop talks which again extended into a late-night session.
With an EU summit looming next week, the talks are going to the wire and officials were warning they may yet not produce a compromise on that vexed issue of how to guarantee a soft border in Ireland. The hope is still, however, that agreed language may be finalised on Friday to go to member states’ ambassadors.
Although the substance of the talks are firmly under wraps, it is possible to sketch out in some detail the shape of an Irish backstop deal from the logic of the two competing scenarios.
The talks involve the reconciliation of two seemingly incompatible scenarios on how to keep Northern Ireland aligned to the EU economy to obviate the need for a border on the island of Ireland – either continued Northern membership of a customs union, advocated by the EU, or continued temporary full-UK membership of a customs union, the British option.
The latter avoids the need to divide the UK into two customs areas, a prospect that is anathema to the DUP, but it was unacceptable to the EU – and the Taoiseach until last week – because it could see UK businesses undercutting EU rivals by doing away with costly regulatory requirements whether on wages, environmental grounds or standards.
Only continued regulatory alignment in line with the EU single market rules would turn a customs union membership into a formula for doing away with an EU-UK border.
In an attempt to bridge the gap between it and the UK, the EU Brexit taskforce has moved on two fronts – on the one hand chief negotiator Michel Barnier has sought over recent weeks to minimise the intrusiveness of regulatory checks between the UK and Northern Ireland.
This move by Barnier to "de-dramatise" the issue was an effort to undermine arguments that such checks constitute a "border" or even serious "barriers" that could be seen as threatening the constitutional position of the North in the United Kingdom.
Barnier detailed such de-dramatisation at length in a Brussels speech on Wednesday in which he argued that checks could happern for the most part away from the border.
“For customs and VAT checks, we propose using the existing customs transit procedures ... Companies in the rest of the UK would fill in their customs declarations online and in advance when shipping goods to Northern Ireland.
“Regulatory checks, on industrial goods ... could be carried out by market surveillance authorities ... in the market or at the premises of companies in Northern Ireland,” he said.
But for health and phytosanitary checks for live animals and products of animal origin, EU rules were clear, he said: “Such checks must happen at the border because of food safety and animal health reasons.”
At the same time, in the talks in recent days Barnier has also shown a willingness to embrace the much derided all-UK customs union formula. That can work, EU officials argue, if the UK accepts that there will still have to be regulatory alignment between the North and the EU – based on the least intrusive checks as possible.
And most crucially, despite customs union membership, this scenario still requires that border controls be imposed between the EU and rest of the UK, at Dover-Calais or Liverpool-Dublin ports. They would be needed to ensure that goods crossing to the EU meet its regulatory standards if the rest of the UK (ie minus Northern Ireland) is determined not to sign up to them. Ditto for animals and food products.
The result of Barnier’s reformulated approach will be that under both touted backstop scenarios the experience of those travelling or exporting goods either between Great Britain and Northern Ireland, or between the UK and EU, will be identical: light regulatory checks on the Irish Sea, no internal border in Ireland, and full border controls on the Channel.
But, in insisting on the all-UK customs union backstop, the UK has created a rod for its own back. Its negotiators have demanded that the backstop be strictly time-limited and only apply until it is replaced by a negotiated broader comprehensive agreement on the long-term relationship between the EU and UK.
But there is no guarantee either that such a comprehensive deal will be done, or when, or, more likely, that any such deal will provide the level of safeguards required to sustain a frictionless Irish Border. In either eventuality the EU and Ireland will want to insist that the backstop stays in place, potentially trapping the UK in the despised customs union forever.
Language on the finiteness of the UK’s preferred backstop option is understood to be one of the issues bogging down the talks.
Barnier’s speech – what the EU’s chief Brexit negotiator said about the Border backstop on Wednesday
“The UK wants to and will leave the single market and the customs union. This means that there must be checks on goods travelling between the EU and the UK – checks that do not exist today. Customs and VAT checks, and compliance checks with our standards to protect our consumers, our economic traders and your businesses.
“We have agreed with the UK that these checks cannot be performed at the border between Northern Ireland and Ireland.
“A crucial question is, therefore, where they will take place. The EU is committed to respecting the territorial integrity and constitutional order of the UK, just like the UK has committed to respecting the integrity of our Single Market, including Ireland, obviously.
“Therefore, the EU proposes to carry out these checks in the least intrusive way possible.
“For customs and VAT checks, we propose using the existing customs transit procedures to avoid doing checks at a physical border point. To be more specific:
o Companies in the rest of the UK would fill in their customs declarations online and in advance when shipping goods to Northern Ireland.
o The only visible systematic checks between Northern Ireland and the rest of the UK would involve scanning the bar codes of the lorries or containers, which could be done on ferries or in transit ports.
o These arrangements already exist within EU Member States, in particular those with islands, for example between mainland Spain and the Canary Islands.
“For regulatory checks, on industrial goods for instance, these could be carried out by market surveillance authorities.
“Again, this would not need to happen at a border but directly in the market or at the premises of companies in Northern Ireland.
“This leaves the health and phytosanitary checks for live animals and products of animal origin. EU rules are clear: such checks must happen at the border because of food safety and animal health reasons. And obviously, in the future the island of Ireland will and must remain a single epidemiologic area.
o Such checks already exist in the ports of Larne and Belfast.
o However they would have to cover 100 % rather than 10 % of live animals and animal-derived products, which would involve a significant change in terms of scale.
“Ladies and gentlemen,
“Both the EU and the UK exclude having a physical border on the island of Ireland. Therefore what will arrive into Northern Ireland will also be arriving into the single market.
“There will be administrative procedures that do not exist today for goods travelling to Northern Ireland from the rest of the UK. Our challenge is to make sure those procedures are as easy as possible and not too burdensome, in particular for smaller businesses.”