The European Commission has upped the ante in the Brexit talks on the Irish Border, which will now be a key focus ahead of next month's crunch summit of EU leaders.
News that EU negotiators believe the North will have to remain subject to EU trading rules to avoid the return of a Border on the island of Ireland after Brexit is an important development in the talks.
It “calls out” a contradiction in the British position and will infuriate the DUP but will be welcome in Dublin.
The European Commission, in its latest negotiating document, is of course pointing out what has been obvious from the start - if the UK in its entirety leaves the EU trading bloc, then the Border would be back.
Ireland has called for all of the UK to remain in the customs union and single market - the agreements which underpin free trade in goods and services - to avoid this, and also to allow trade to continue unhindered between Ireland and Britain. This remains Ireland’s best option. However, London continues to rule this out as Brexit must mean Brexit, and so on.
If London insists on leaving the EU trading bloc, then the only way to avoid a trade Border on the island would be for the North to have a special status,effectively remaining in the single market and customs union. This is what the EU document is pointing to. However, this would mean a trade Border would be needed on goods moving between the North and Britain, something which London has also ruled out and which would anger the DUP, on whom the Conservatives rely to keep them in government.
UK Brexit secretary David Davis again rejecting this idea on Friday, saying that the “constitutional and economic integrity” of the UK must be maintained. So it is far from clear how this will be solved. The DUP’s Jeffrey Donaldson also weighed in , telling RTÉ that “ we’re not going to agree to a new border between Northern Ireland and the rest of the UK.”
Riding two horses
Britain has been trying to ride two horses, claiming that it could leave the EU single market and customs union and simultaneously find some way to avoid the return of a “hard” Border on the island of Ireland.
The European Commission has pointed out that achieving both of these goals simultaneously is not possible. The key part of the EU negotiating document leaked on Thursday evening pointed out that if a Border was to be avoided,“regulatory divergence” must be avoided on the island of Ireland from the rules of the internal market and customs union.
In other words the only way to square the circle of Britain leaving the customs union and single market with the goal of avoiding a hard Border is for the North to remain inside the EU regulatory tent.
There is a whole bag of complexity in these rules, but the central point is simple . If the UK is no longer subject to all the rules underlying free trade in the EU, then a border is needed to stop goods moving in and out of the EU single market. If this border is not on the island of Ireland, then it must be in the Irish Sea, with some special arrangement reached for the North.
Britain has tried to nuance this , saying that there are ways to lessen the impact of an Irish Border and that in any case this cannot be finally sorted until it becomes clear what the future trading arrangement would be between the UK and the EU. Dublin has been unhappy with any suggestion of the return of a Border and believes that promises to make it “frictionless” in various papers from London in recent months are not achievable.
Not enough
This all suggests that Ireland has wider support in seeking a clearer framework to avoid the return of a Border, before the Brexit talks progress. The EU is suggesting to London that the current Border fudge is not enough.
London had been hoping for the Border issue to be pushed to later in the Brexit talks. For Dublin, however, the risk is of being backed into a corner later in the talks and coming under pressure to accept the return of some sort of a Border, which could still happen.
Where now then?
In mid-December, EU leaders must decide if sufficient progress has been made on a range of issues to allow the Brexit talks to progress. The key ones are the extent of Britain’s financial commitments, the mutual rights of EU and UK citizens and the so-called Irish issues.
Ireland has some leverage here, particularly as the decision on whether to move to the next phase of the talks must be made by EU leaders on the basis of consensus, with no one country objecting.
An interesting few weeks lie ahead.
