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EU/UK Withdrawal Agreement includes plan to keep Northern Ireland in the customs union

The draft treaty sets out the arrangements for Brexit.

DUP leader Arlene Foster and deputy leader Nigel Dodds.
DUP leader Arlene Foster and deputy leader Nigel Dodds.
Image: Charles McQuillan/Getty Images

Updated 11.52am

THE EU HAS published the draft text of the EU/UK Withdrawal Agreement which will see the UK leave the European Union.

The 118-page agreement sets out the arrangements for Brexit. The European Commission and European Council say they will discuss the document in the coming weeks before entering negotiations on it with the UK.

Aspects of the divorce deal relating to Northern Ireland leaked last night, igniting the fury of the Democratic Unionist Party (DUP).

The text was confirmed today with a certain urgency displayed by negotiator Michel Barnier who mentioned a number of times that it is just 13 months until Britain’s leave date.

It outlines a plan for keeping Northern Ireland in the customs union if no other solutions to avoid a hard border in Ireland are found.

Under Chapter III, Article 3, 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 protected in accordance with this Chapter.

CRA Source: sinead

This is the “default” or “backstop” option where there will be no change to the current border between north and south. Northern Ireland would remain in “full alignment” with the EU’s customs union in order to uphold the Good Friday agreement.

It would mean alignment between the north and south for customs, VAT, energy, regulations for the protection of the environment and laws governing agriculture and fisheries. Northern Ireland would also have to adhere to EU rules on State Aid and would be under the jurisdiction of the European Court of Justice.

This “default” option, however, is unpalatable to the hardline Brexiteers, in particular the DUP.

Speaking this morning, the EU’s top negotiator Michel Barnier said that what is contained in this document has already been agreed by the UK and the EU.

Denying he was trying to provoke the UK, he said there must be a solution that avoids a hard border and protects the Good Friday Agreement.

There are three options available to negotiators in relation to Northern Ireland:

  • A: To deal with the Northern Ireland question through the negotiations about the future relationship between the EU and the UK but this will not be place at the moment of withdrawal, Barnier noted.
  • B: For the UK to bring forward unique proposals to deal with the unique situation. Barnier said he looks forward to seeing these.
  • C: Finally, for this ‘backstop’ to be deployed. Having this in place in this text is the only way the joint agreements from the UK and the EU on Northern Ireland could be upheld, according to Barnier.

Barnier says he is also due to meet the political leaders in Northern Ireland, the DUP’s Arlene Foster and Sinn Féin’s Michelle O’Neill next week.

Answering questions from the British press, he denied that the plan amounted to meddling in UK constitutional affairs.

He also said that the backstop plan would not amount to a defacto border in the Irish Sea, saying there may be controls in ports and airports, but he wouldn’t refer to it as a border.

If options A or B work out, the text allows for this “subsequent agreement”, stating:

Should a subsequent agreement between the Union and the United Kingdom which allows addressing the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Agreement in all its dimensions, become applicable after the entry into force of the Withdrawal Agreement, this Protocol shall not apply or shall cease to apply, as the case may be, in whole or in part, from the date of entry into force of such subsequent agreement and in accordance with that agreement.

Other areas 

The draft text also deals with EU citizens living in the UK and the financial settlement.

EU citizens, regardless of country of origin, who have lived in the UK (up to the end of the transition period on 31 December 2020) will continue to have the right to reside there, under the deal.

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Problems with the backstop

Speaking about the leaks last night, Jeffrey Donaldson MP says this would “fundamentally breach the understanding reached in December and would undermine the constitutional status of Northern Ireland”, and added “if the EU or Dublin believes the UK government will be signing up to a border in the Irish Sea, they are deluded”.

jeffrey donaldson Source: Jeffrey Donaldson/Twitter

Speaking on Sky News, Sammy Wilson MP said that there is already a border in Northern Ireland, and that the EU and Irish government are trying to eliminate it.

He said: “Even at present, there are checks which go on goods which cross the Irish border, whether they be veterinary checks or spot checks by revenue controls, and when it comes to transport goods.”

And, in a statement, MEP Diane Dodds said that it is “simply unimaginable that there would be any barriers to trade across the Irish Sea”.

He added that the rest of the UK is Northern Ireland’s biggest trading partner, and that Ireland is only a part of its trade.

This proposed alignment would apply in lieu of the UK offering up solutions on how to create a frictionless border. Despite saying it wants to leave the customs union and single market, the UK government offered a guarantee in December that it would provide these solutions on how to reconcile this.

To date, however, these solutions haven’t been expanded upon and, yesterday, Foreign Secretary Boris Johnson was criticised as “ignorant” for comparing the Irish border to travelling through different boroughs of London.

Speaking on Newstalk Breakfast, Taoiseach Leo Varadkar said that the UK shouldn’t be able to cherry pick what kind of alignment it wants with the EU after Brexit.

“That’s not a serious position,” he said. “All we want is a good deal. Ireland, and our economy, could be impacted worse than the UK’s economy [in a hard Brexit], but it has to be based on realistic principles.”

He added that it was important to remember that the DUP does not speak for everyone in Northern Ireland.

“Most people voted remain,” he said. “And let’s bear in mind that the majority of people didn’t want to leave the EU.”

The Tánaiste and Foreign Affairs Minister formally welcomed the text after its publication today, calling it an important step in the Brexit process.

“The draft includes a protocol on Ireland and Northern Ireland, which is an integral part of the draft agreement, and gives legal effect to the firm commitments made in December,” Simon Coveney said in a written statement.

“We have always been clear that our preference is to avoid a hard border through a wider future relationship agreement between the EU and the UK [Option A], a view we share with the British government. We are also committed to exploring specific solutions to be proposed by the UK. At the same time, there is now the necessary legal provision to implement the backstop of maintaining full alignment in Northern Ireland with the rules of the Single Market and Customs Union necessary to protect North South cooperation and avoid a hard border. This is very much a default and would only apply should it prove necessary. This is about delivering on our shared objectives of protecting the Good Friday Agreement and the gains of the peace process, no less, no more.”

It is hoped that a version of this draft will become legal text by October.

With reporting by Sinéad O’Carroll 

Read: All eyes on Irish border as Brexit draft text to be finalised today

Read: Leaked Boris letter to Downing St: It is wrong to see the task as maintaining ‘no border’

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Sean Murray

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