Brinkmanship on the border: May squares off before EU leaders as Barnier revises his plan

To herald her appearance at today’s EU summit at Salzburg, Theresa May has presented  a bullish case for her Chequers plan where it matters most – to the Germans. In an article under her name in the heavyweight paper Die Welt, she insists that Chequers contains the border solution without resorting to the EU’s legal draft of the backstop. Say it quietly but she may be pushing at a door, if not wide open, just left ajar. Pardon the cliché,  but the devil is now in the detail. See Tony Connelly’s report below.

Extracts from the prime minister’s article

So the question before both the UK and the EU is how to achieve the UK’s departure from the EU while respecting both sides’ core interests and avoiding unnecessary damaging disruption.

That question is sharpest in Northern Ireland and the needs of Northern Ireland have been an important factor in our solution. Any settlement must respect the Good Friday Agreement that is the basis for Northern Ireland’s constitutional order and peace and stability there, and must be able to command cross-community support. A hard border, either between Northern Ireland and the Republic of Ireland or between Northern Ireland and the rest of the United Kingdom, would not do so.

To avoid a hard border we need the frictionless movement of goods. This is not the same thing as partial participation in the Single Market: British companies would not enjoy the same legal rights, for example.

So that frictionless movement is at the heart of the new proposals we put forward this summer. A UK-EU free trade area for goods and agricultural products, together with a business-friendly facilitated customs arrangement, would avoid the need for customs and regulatory checks at our shared borders and protect the uniquely integrated supply chains and just-in-time processes on which jobs and livelihoods across our countries depend. It is profoundly in both sides’ economic interest, it respects the integrity of the Single Market and, crucially, no one else has come up with a proposal that could command cross-community support in Northern Ireland that is the only true foundation for stability there.

Compromises on Brexit

There have been arguments made against our proposals that have been at odds with the reality of trade negotiations elsewhere and indeed the current trading relationship between EU member states.

For instance it is said that goods and services cannot be separated. But no free trade agreement the EU has ever concluded treats goods and services on the same basis. And most of the relevant services for goods are not covered by EU regulation in any case.

Our commitments recognise that in future, when UK firms provide services into the EU, they will follow the same rules as firms in that EU Member State – meaning they simply cannot undercut EU service providers.

What we are proposing is a fair arrangement that will work for the EU’s economy as well as the UK’s, without undermining the Single Market.

We must stay good friends

We will also honour our commitment to ensure that there is a legally operative Protocol on Northern Ireland, but that Protocol must protect the Belfast/Good Friday Agreement in all its parts and respects the constitutional and economic integrity of the UK, which the Commission’s proposal does not.

To come to a successful conclusion, just as the UK has evolved its position, the EU will need to do the same. Neither side can demand the unacceptable of the other, such as an external customs border between different parts of the United Kingdom – which no other country would accept if they were in the same situation, or the UK seeking the rights of EU membership without the obligations.

Mrs May’s article written in advance doesn’t seem to take it into account Barnier’s new thinking. In any case it’s s primarily addressed to her fellow heads of government – “over Barnier’s head” according to the FT.

Theresa May will go over the head of EU chief negotiator Michel Barnier on Wednesday and appeal directly to fellow European leaders to cut her a Brexit deal that does not involve detaching Northern Ireland from the rest of the UK. The prime minister will make her pitch for a compromise deal over dinner at a two-day informal European Council in the Austrian city of Salzburg — a meeting that should pave the way for the endgame in the Brexit negotiations. She has become frustrated at Mr Barnier’s insistence that a so called “backstop” plan for Northern Ireland — intended to avoid a hard border with the Republic of Ireland after Brexit — must leave the region operating under EU customs and single market rules.

“She will ask [EU leaders] to imagine if it was their country and there was a proposal to carve off a section of their own country,” said one ally of Mrs May. “They may understand that problem more than a technocrat in Brussels.” But EU leaders have been unwavering in their support for Mr Barnier. “I do not anticipate there being any change to the EU’s position or any change to our negotiating guidelines,” said Leo Varadkar, Ireland’s prime minister, on Tuesday.

One EU diplomat said it would be “reckless” for Mrs May to seek to undermine Mr Barnier.

Later..

This  afternoon,  a few hours before gathering at Salzburg, Donald Tusk the EU Council president, deliver what sounds like a rebuff to Mrs May. This is an EU unwilling to surrender the initiative to the UK.

Would this meet the UK objections to a border down the Irish Sea? It’s obviously so designed.

The EU will suggest that checks would need to be carried at British and Northern Irish ports on only one category of goods moving from Great Britain to Northern Ireland in the event of the Irish backstop taking effect, RTE News understands.

The EU’s chief Brexit negotiator Michel Barnier has told member states that checks could be simplified across the board.

In all, four categories of goods would be affected if the backstop took effect, and Northern Ireland was to remain in the EU customs union and single market.

Mr Barnier said that only live animals, animal-derived goods and food products would need to undergo physical checks at the actual ports in Great Britain and then in Northern Ireland.

Briefing EU European and Foreign Affairs ministers in Brussels last night, Mr Barnier said that these checks already take place on such products or goods that move between the rest of the UK and Northern Ireland.

This more detailed breakdown of what the EU regards as necessary checks will form the bulk of what Mr Barnier last night termed an “improved” text on the Irish Protocol, RTE News understands.

Mr Barnier told ministers that the Protocol would have to respect the constitutional integrity of the United Kingdom, and that those were the “constraints.”

British officials have already described such changes as unacceptable.  London’s position remains that the backstop must be UK-wide for customs, in order to avoid customs checks along the Irish Sea.
According to a briefing note seen by RTE News, and confirmed by a second source, Mr Barnier broke down the checks that would be required under the backstop into four categories, only one of which – animal and food products – would require checks at ports.

The first category was customs, which is seen as the most sensitive.

According to the note, customs declarations could be filled in in advance. The only physical check would be the scanning of a barcode on a container.

Once the scans had been done there would be a risk analysis of the physical need for actual checks of the goods within the container.

Mr Barnier told ministers that such checks were already common in the EU’s Union Customs Code and he cited the fact that customs authorities deployed such technology on goods moving between Spain and the Canary Islands, and vice versa.

The second type of control would be for VAT and excise duty.

Mr Barnier said that the information contained within the customs declaration “would suffice” to calculate the final payment.

The third kind of checks would relate to conformity with EU standards and regulations for industrial goods.

These, he said, could be done by what he termed “market supervisory authorities” at the point of sale, and on the basis of the customs declaration already filled in.

The fourth category of checks, under EU sanitary and phytosanitary (SPS) rules, would, however, be required at British and Northern Irish ports.

According to a senior EU official, Mr Barnier explained that such checks already exist on live animals moving across the Irish Sea, but that at present only 10% of consignments are checked.

“This would have to increase substantially,” the official told RTE News.

Mr Barnier also told EU ministers that the new set of checks and controls would only be required on between 40p% and 45% of the trade moving between Great Britain and Northern Ireland.

That is because, according to the chief negotiator, the remaining percentage moves through Dublin.

In a post Brexit scenario these goods would be subject to checks anyway.

Mr Barnier also told ministers that the backstop was a “safeguard solution” that could be replaced by “new elements” as part of the future relationship.

He said that if the UK wished to remain in the customs union then the EU could “go even further”.

The EU’s chief negotiator said there was a need to “protect the UK’s territorial integrity” and that those were the constraints governing the backstop.

According to a separate source who was present at the meeting: “He went through what the backstop means. The [animal health and food safety] SPS checks. They’re not in principle different from what already goes on.  They would just be increased, but then could be reduced if we do other agreements on them.

“The main issue is customs, which is mostly paperwork, but it doesn’t need to be done on the [sea] border.  It can be done when you load or offload.”

It’s understood Mr Barnier said there were key points of “convergence” between Theresa May’s Chequers White Paper.

According to one official present: “He said Chequers was valuable, and there were many points of convergence between the Chequers White Paper and our position.

“We never understood the White Paper as, here are 99 pages, please sign on the dotted line and we have an agreement. We always took it, and it was explained to us publicly, as a sign of movement and a sign of ambition and it was a position paper that was supposed to be discussed.”

Later…

But this is not good enough for Nigel.

“So Michel Barnier says he can do different kinds of checks between Northern Ireland and the rest of the UK as if that makes it more palatable,”said Mr Dodds.

“The fundamental point is that internal UK checks are only needed if it is intended to separate Northern Ireland from Great Britain.

“Despite the talk of “improvements” the backstop being insisted upon by the EU would mean a different regime for Northern Ireland compared to the rest of the U.K,” he said.

“It still means a border down the Irish Sea although with different kinds of checks. The fact is that both Theresa May and the Labour Party have said no British Prime Minister could accept such a concept. It is not just unionists who object.

“And anyone with the desire to see our economy prosper will not want to see barriers put in the way of sales to and from our biggest market in the rest of the UK.

“There is however one upside in all of this. Having dismissed technology as magical thinking for the border between the Irish Republic and Northern Ireland it is suddenly okay for the border between Northern Ireland and the rest of the UK. Progress of sorts!”

 

On Tuesday evening, Barnier said the EU was preparing to publish a new proposed solution to the Irish border issue, but he made clear that the fundamental principle of the region staying in the EU’s customs area was not being rethought.

The Telegraph version

The European Union is “ready to improve” its offer on the Irish border, Michel Barnier said ahead of a key Brexit summit.

Speaking in Brussels on Tuesday evening, the EU’s chief negotiator, showed he was willing to rethink his position on the “backstop” proposal for Northern Ireland.

Mr Barnier said he was keen to “de-dramatise” the goods checks which would be needed and make most of them away from the border.

“We are clarifying which goods arriving into Northern Ireland from the rest of the UK would need to be checked, and where, when and by whom.

“We can also clarify that most checks can take place away from the border, at the company premises or in the market.”

It comes as David Davis, the former Brexit Secretary, said the EU is “softening” on its stance on Northern Ireland, and are starting to accept methods of checks away from the border which it “refused to accept six months ago”.

Speaking to the BBC’s Today programme, Mr Davis said he repeatedly told Theresa May that negotiations “would come to a pressure point late, in October or November, this year. That’s when people will start to move. After they have tested your metal, taken you to the cliff edge.”

 

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London