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Explainer: Why the "cast iron" guarantee for no hard Brexit border may now be in doubt

All eyes are on the UK to divulge its solutions to solve the issue of the Irish border.

Image: John Stillwell/PA Images

IN DECEMBER, TAOISEACH Leo Varadkar said that “we have the assurances and guarantees we need from the UK on the Irish issues” when it comes to Brexit.

He said that there had been a “cast iron” guarantee for no border separating Ireland and Northern Ireland. The securing of this guarantee for the Irish government allowed the talks to move to the next stage.

December’s deal promised “full alignment” with the EU single market and customs union rules that are crucial to the Good Friday Agreement.

The UK has, however, remained steadfast in its commitment to leave both the single market and customs union after Brexit.

And, yesterday, the EU’s chief negotiator Michel Barnier said that it was “important to tell the truth” and that the UK leaving the single market and customs union “will mean border checks in Ireland”.

So, what’s happened since this “cast iron” guarantee? Is the possibility of a hard border now back on the table?

What Britain is saying

A common mantra from UK Prime Minister Theresa May has been “Brexit means Brexit”. The problem is no one actually knows definitively what that means, beyond the UK leaving the EU.

Factions within the ruling Conservative Party disagree – while being propped up by hard Brexit advocates the DUP – but officially Number 10 has said that it doesn’t want to be part of the customs union or single market post-Brexit.

These arrangements provide for the trading of goods across European countries without restrictions or tariffs. As goods travelling from outside into this union are subject to restrictions and tariffs, a border must be crossed to bring these into the EU.

This, of course, raises the prospect of a hard border needing to be established between Northern Ireland and Ireland when the UK leaves the EU.

Brexit Brexit Secretary David Davis is leading the negotiations for the UK's side. Source: Frank Vincini/PA Images

For countries outside the EU, negotiations are held between that country and the EU for what arrangements they will have.

While the UK says it wants out of this, it instead wants a “highly-streamlined customs arrangement” or a “new customs partnership with the EU”.

At the time of the December deal, the term “alignment” was used frequently by both sides. A “regulatory alignment” would allow the UK to still conduct its affairs with EU member states in a similar manner to how it does now, but that appears incompatible with the desire to leave the current customs arrangements.

That deal contained the following lines: “The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements.

The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland.

So the UK plans to leave the customs union but has committed – albeit in a non-binding manner – to find the solutions to prevent a hard border. Northern Ireland will need to, in effect, stay within the single market and customs union in some shape or form to prevent a hard border.

Talks on how this can be done are currently happening between the two negotiating teams in Brussels.

What the EU is saying

Yesterday, Michel Barnier was talking tough on the Northern Ireland border issues. He stated it was “important to tell the truth” that border checks between Northern Ireland and Ireland would be “unavoidable” if the UK left the single market and the customs union.

Translating the December deal into a proper legal agreement is proving especially difficult on the Northern Irish issue.

“The UK has committed to proposing specific solutions to the unique issue of Ireland. We are waiting for such solutions,” said Barnier at yesterday’s press conference.

Barnier added that the eventual deal would contain an emergency option which states that if Britain fails to find a special solution for Northern Ireland, the UK would remain in “full alignment” with the EU on trade issues to ease the border impact.

Start of Brexit negotiations - Brussels Barnier (right) has urged the UK to offer its solutions. Source: Monasse Thierry/AND/ABACA

He also said that time is now “very short” to find these solutions.

Britain has asked the EU if, in the transition period after it officially leaves the EU in March 2019, it could remain part of the customs union and single market for a period of almost two years.

In a position paper this week, it said: “The UK view is that the best approach would be for the parties to confirm that, for the duration of the implementation period, these agreements continue to apply to the UK and that the UK is to be treated in the same way as EU member states.”

So, even when it leaves the EU, the UK is asking to be treated the same as other member states for almost two years.

In light of this request Barnier is seeking answers, including answers on Northern Ireland.

“The time has come to make choices, and we await with great interest the choices,” he said.

What Ireland is saying

In December, Taoiseach Leo Varadkar said that his government “got the guarantees and assurances we needed… we protected what we wanted to protect”.

He said that Ireland and the EU would abide by that deal, and that he had no reason to believe that the UK will back out of it either.

In the Dáil this week, Tánaiste and Minister for Foreign Affairs Simon Coveney echoed Barnier and said that it would be very difficult if the UK leaves the single market and customs union in an “absolute way”.

He said: “I and many others have called for clarity from the British Government as soon as possible as that would make it far easier for the EU negotiating team to plan for the structured negotiations that need to take place in the future.

People talk about fudges, but we are not talking about a fudge, we are very clear about the commitment that was given before Christmas in the context of no political agreement, on a broader trade and new relationship deal that can solve the Border issue on the island of Ireland.
We are moving from a political commitment that was made before Christmas to a legal document that will be a draft withdrawal agreement. The EU is looking to draft this before the end of the month.

Coveney added that no conclusions could be drawn until the British government provides clarity in what it is seeking.

Commitments

The UK government has offered a guarantee that it would arrive at a solution to avoid a hard border in the event no deal is reached with the EU.

Now, the EU wants the details on how exactly it will do this.

With barely 13 months left until it leaves, the UK appears to be drawing the ire of the EU for this perceived lack of detail it is providing.

As a result, Barnier and the EU are adopting a tough stance in a bid to get these details as soon as possible.

This guarantee is not legally binding. And if it is announced that Northern Ireland will remain in the single market post-Brexit, Theresa May will be facing into a showdown with the anti-Europe Brexiteers in her own party and the party keeping her in government, the DUP.

Such conflict within the British government could throw further doubts on the border issue going forward.

The UK guaranteed no hard border when it leaves the EU but, with time running out, everyone is looking to them for answers on how it can be done.

Read: EU ‘still waiting’ on UK to give specific solutions to Irish border issue

Read: No-deal Brexit would cripple UK finances to tune of €91 BILLION – leaked report

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Sean Murray

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