No options acceptable for Irish Brexit border

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Bored of Brexit? Tired of the ‘he said’, ‘she said’, ‘this happened’, ‘that happened’, ‘they’re lying’, ‘no they’re lying’ nature of it all?

Believe me, you are not alone. But what is being decided in negotiating rooms in Brussels between dedicated and highly capable diplomats from both sides is of pivotal importance.

Acting on instructions by their political masters in London and the capitals of the remaining 27 nations of the EU, they are trying to negotiate an agreement which will have consequences – economic, social, political – for generations to come.

I’ll admit, we who find ourselves in the Brussels (and Westminster) Brexit bubble may from time to time obsess about jargon-filled twists in the negotiations that are of little interest to you.

But together, these moments will help mould the agreement that is reached and the relationship that Britain secures with its closest neighbours.

And every so often, bigger, key moments present themselves. The publication today of a document by the EU side is one of those moments.

The jargon first – try to read beyond it if you can. The Joint Report, agreed in Phase One of the negotiations has been translated into legal text, the first draft of which will be discussed by the EU’s College of Commissioners and then published.

So what does that mean? And why is it significant?

Well in short, the document will put some of the central contradictions of the type of Brexit the UK seems to be seeking into sharp focus.

In December, both sides reached another of the key moments. They managed to reach ‘sufficient progress’ on the divorce arrangements. Three central separation issues were ironed out and (almost) agreed upon.

The first was money – how much the UK was prepared to part with as part of its divorce – money that it had already committed to paying as a member of the EU.

The second was citizens rights – what happens to the 3+ million EU citizens who have made the UK their home and well over a million Brits who have chosen to live in the EU either for work or pleasure.

The third issue – the most contentious – was the Irish border. How to ensure that there is no hard border between the Republic of Ireland and Northern Ireland after Brexit – the only land border between the UK and the EU.

Two men dressed as customs officers take part in a protest outside Stormont against Brexit

In this new document, the political commitments made and agreed on all three of those issues are being translated into legally binding language.

That means that if anything was left a little woolly in December, and plenty was, it must now be formalised in order to be legalised. Cans were kicked down the road in December. Now they must be picked up again.

Speaking on the eve of the publication, the EU’s chief negotiator for Brexit Michel Barnier said: “This publication will be of use for everybody so that everyone can get a clear picture of the issues upon which an agreement is needed and I think this publication will also be useful as it will feed into the public debate which is very close to my heart and which will highlight all the issues at stake as part of Brexit.”

By putting this document into dense legal language, the EU side is forcing difficult issues back onto the negotiating table.

On the Irish border, three options were outlined in December.

Option one was that the border issue would simply go away because a rich and diverse free trade agreement would be reached between the two sides rendering a border unnecessary.

Option two was that technological solutions would ensure that goods and people were checked without the need for a border.

Option three – the fallback, if one or two don’t come to pass – was that Northern Ireland would fully align with the Republic of Ireland (and therefore with the EU).

Taking each of these in turn, there are fundamental problems which are now coming to a head.

The EU believes that option one is the ‘have your cake and eat it’ scenario – where the UK can get all the benefits of the EU without being a member.

They have continually said it’s not a runner because it undermines the integrity of the single market which is central to the whole EU project.

The EU side describes option two as the ‘Narnia’ option – they don’t see what sort of technological solutions could work.

The UK side has not produced answers and to my knowledge no technology company has come forward with comprehensive solutions either.

Technology does not exist track all goods crossing the border
Technology does not exist track all goods crossing the border

How do you check everything that’s inside every goods vehicle that crosses the Irish border without stopping it? That includes ensuring that goods made in the UK and carried over that border meet EU standards and vice-versa.

And so the only option that, for the EU side, seems feasible to prevent a hard border is option three – Northern Ireland aligns with EU regulations.

That means it effectively remains inside the Customs Union, moving the external EU border to the Irish Sea.

That is unacceptable for the Democratic Unionist Party in Northern Ireland who prop up Mrs May’s government in Westminster as well as Conservative backbench Brexiters. So does that mean that the whole of the UK remains in the customs union and Single Market?

The UK government has explicitly and repeatedly said that the UK will not be in ‘the’ customs union or ‘a’ customs union or the single market.

Back to today’s document – crucially, Sky News understands that only option three – alignment between Northern Ireland and the Republic – is part of the body of the legally binding text. It talks about a ‘common regulatory area’ on the island of Ireland.

Options one and two remain on the table and in the document but won’t be included in the…

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