Can checks on goods be construed as a barrier in the Irish Sea?

Donald Tusk, Michel Barnier and Leo Varadkar presented a united front in Brussels on Thursday, sounding frosty as they called for an acceleration of Brexit negotiations. After an initially warm response from Dublin to hints about Britain's forthcoming proposal on the backstop, the Taoiseach struck a more sceptical tone in Brussels.

The British proposal, which will be presented to the EU in the next week or so, accepts that Northern Ireland should remain in regulatory alignment with the EU for goods. It will include a modified version of the temporary customs arrangement it proposed for the whole of the UK last June.

This envisaged that the territory of the UK would form part of the EU’s customs territory after the end of the post-Brexit transition in December 2020.

“The temporary customs arrangement would eliminate tariffs, quotas, rules of origin and customs processes including declarations on all UK-EU trade. To operate effectively, the temporary customs arrangement would need to provide for the UK’s application of the EU customs legislation,” it said.

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Keeping the entire UK in the customs union would eliminate the need for customs checks between Britain and Northern Ireland, although the EU has concerns about how it would operate. But the British proposal on the regulation of goods moves London close to the EU’s “de-dramatised” backstop plan.

Under Barnier’s latest proposal, which he outlined to EU leaders at Salzburg last month, the regulatory control of goods moving from Britain to Northern Ireland would take the form of market surveillance rather than checks at ports or on vessels. This means that products are monitored in the market to ensure they are safe and manufactured in accordance with EU harmonisation requirements.

British negotiators accept the need for sanitary and phytosanitary (SPS) checks on agricultural products, which Barnier says would be conducted at ports and vessels as they are now. Currently, just 10 per cent of such products are checked and Britain wants the EU to drop its demand that 100 per cent should be checked after Brexit.

The EU wants a permanent “all-weather” backstop to be included in the legally-binding text of the withdrawal agreement. But British negotiators want the withdrawal agreement to include only a temporary version of the backstop, which could be superseded by another version negotiated as part of the framework for the future EU-UK relationship.

Stormont role

Britain also envisages a role for Stormont in authorising continued regulatory alignment with the EU, citing a paragraph in last December’s joint report approved by Britain and the EU.

"The United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland," it says.

EU and Irish negotiators interpret the paragraph as a unilateral British commitment and argue that it would give the DUP a veto through the use of a “petition of concern”. They also point out that the British government is negotiating the withdrawal agreement on behalf of the British state and that the Northern institutions have no standing to negotiate that binding agreement.

The most difficult issues between London and Brussels are likely to focus on what elements of the backstop are included in the withdrawal agreement and what should be in the political declaration about the future relationship between Britain and the EU. British negotiators complain that the EU wants to put all the European demands into the legally binding withdrawal agreement and all the British ones into the more aspirational, political declaration.

But the EU and Ireland will insist that for the backstop to have any force, its hardest elements must be locked down in the withdrawal agreement.

During the Conservative party conference in Birmingham this week, the DUP strutted around the convention centre warning that they would vote down any backstop deal that violated their demand that there should be no new customs or regulatory barriers in the Irish Sea.

Deputy leader Nigel Dodds added new conditions on Wednesday night, insisting that the backstop must be temporary and that it could not lead over time to greater divergence between Northern Ireland and the rest of the UK.

The DUP has no objection to SPS checks being conducted at ports as they are now. So the future of the British backstop proposal will partly depend on whether checks on goods in the market can reasonably be construed as a new barrier in the Irish Sea.