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Where the UK’s Brexit plan (and Customs Bill) leave Northern Ireland

The Irish border: invisible for now. Paul McErlane/EPA

The status of the Irish border after Brexit is the most complicated and contested part of the UK’s withdrawal from the EU. The UK government insists the issue can only be addressed in the formulation of a new UK-EU relationship. To this end, its most recent white paper, published on July 12, envisages a future deal in which there are no checks and controls at any UK-EU border.

Meanwhile, in Brussels, the text of primary concern remains the draft Withdrawal Agreement. It contains a separate protocol on Northern Ireland and Ireland which includes the EU’s own proposal for avoiding checks at the Irish border. Under this so-called “backstop”, Northern Ireland would effectively remain part of the EU’s customs union and single market for goods – implying potential checks and controls at sea and air ports on the movement of goods between Northern Ireland and the rest of the UK.

This backstop is the EU’s (and, with it, Ireland’s) “insurance policy” – only to kick-in if the future trade deal is insufficient to avoid border checks and controls between the UK and EU.

The Customs Bill amendments

The amendments made to the Taxation (Cross-Border Trade) Bill (more commonly known as the Customs Bill) in the House of Commons on July 16 have direct bearing on this backstop. One, in particular, came by way of a pro-Brexit alliance between rebel MPs from across the house, including the Democratic Unionist Party from Northern Ireland.

Clause 37 makes it unlawful for Northern Ireland to be part of any customs territory outside that of the UK. It is obviously intended to cut dead any prospect of a customs border “in the Irish Sea”, and thus to slay the EU’s backstop proposal.

The nodding-through of this clause in Westminster belies the colossal political and economic repercussions of Brexit for the place it most affects. News of the amendment was met with vocal expressions of despair and frustration from several quarters in Northern Ireland. The Brexit rollercoaster has been made even more nerve-racking in Northern Ireland by a sense of democratic deficit, given the absence of a functioning Assembly and Executive and the policy of abstention observed by Sinn Féin MPs.

Nervousness centres on concerns that the amended Customs Bill could scupper any prospect of a backstop in the protocol, and with it, the likelihood of finalising the Withdrawal Agreement itself.

And where does this leave the UK’s Brexit plan? Well, the white paper was always intended to make the EU’s backstop unnecessary. As it states: “The operational legal text the UK will agree with the EU on the ‘backstop’ solution as part of the Withdrawal Agreement will not have to be used.” How does it propose to achieve this?

The Irish dimension

First, the white paper proffers a UK-wide version of the EU’s backstop for Northern Ireland, effective membership of the single market for goods. To the irritation of Brexiteers, it would see the UK subscribe to a “common rulebook” with the EU. The idea is that common rules would mean no UK-EU regulatory divergence, and so no checks or restrictions between the UK and EU on their agricultural and manufactured products.

For goods coming from outside the EU and UK it advocates the creation of a “facilitated customs arrangement”. This is unique and untested. It would require tremendous flexibility, not to mention trust, on the part of the EU – the prospects for which are ever-diminishing.

And on the detail, the EU may straightforwardly query the viability and realism of this proposal – as it did in response to the UK’s proposal for a temporary customs arrangement, commonly known as the UK’s “alternative backstop”.

Read more: 'Backstop' option for Irish border after Brexit – the difference between EU and UK proposals explained

But the Irish border is about much more than trade. The fact that the border region is so integrated now is due not only to EU membership but to the layers of contact and cooperation that exist across it. Much of these have been established since the 1998 Belfast (Good Friday) Agreement, which remains a cornerstone of peace in Northern Ireland.

Lough Melvin: the lake with the Irish border running through it. Paul McErlane/EPA

This complexity and sensitivity was acknowledged in the priority given to the Irish dimension from the start of the withdrawal negotiations. This resulted in a set of commitments from the EU and UK to Northern Ireland/Ireland in the Joint Report of December 2017.

Elements of the Joint Report are acknowledged at several points in the white paper but there are also serious omissions. Recognising the importance of a holistic approach to the Irish border issue, negotiators in Brussels will want to assess the significance of such omissions. Are they simply due to a lack of space or is there an attempt by London to row back on previous promises? Whether their assessment is characterised by trust or suspicion will have implications for the wider withdrawal process.

Back to the backstop

One thing remains unalterable: the Withdrawal Agreement cannot be finalised without an insurance policy to avoid a “hard” Irish border. Whether this backstop is specific to Northern Ireland – as the European Commission has insisted – or UK-wide will only be decided by ongoing UK-EU negotiations.

While the language of the protocol on Northern Ireland can be de-dramatised, the consequences of failing to agree a backstop cannot. Without a backstop for the Irish border, there will be no Withdrawal Agreement. Without this, the UK will simply leave the EU on March 29, 2019 with no transition period, no insurance policy, and no agreed framework for the future relationship.

There is no doubt that such an outcome would cut sharpest at the most vulnerable point in the separation of the UK from the EU: the Irish border.

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