Richard North, 08/10/2019  

I do wish the media would avoid the trap of describing Johnson's proposal as keeping Northern Ireland inside the Single Market for goods (and electricity). Regulatory alignment – or even a common regulatory area – does not constitute membership of the Single Market; nor does it guarantee so-called frictionless movement of goods across the border.

An easy cross-check is to look at the Swiss situation, where its trade deals with the EU require it to adopt the relevant elements of the Single Market acquis yet, by no measure can it be said that the borders between Switzerland and the adjoining EU Member States are frictionless.

Not only do we have the Financial Times falling into the trap, we also have the Guardian doing it, illustrating the shallow grasp the legacy media has of the technicalities of Brexit.

Nevertheless, the paper does do us a favour, featuring the EU's "point-by-point" rejection of Johnson's proposal, on the same day that the prime minister in office complained that the EU had not yet explained in detail what its objections were. Apparently, these were handed to David Frost last Friday, so Johnson has had plenty of time to look at them.

As an aside, we have the Mirror reporting on urgent questions in the House of Commons, where the parliamentary under-secretary of state for DexEu, James Duddridge, was challenged as to whether he had even seen, much less read, Johnson's proposal, whence he refused to confirm "which documents I have and have not seen".

That makes me wonder whether Johnson himself has read his own proposal. At 44 pages, it might be a little long for a man who is not famed for his attention to detail, in which case reading the Commission's critique might not have been too helpful, even if he had taken time out to read it. Perhaps if he spent a little less time touring NHS hospitals, he might have time to do his day job.

Anyhow, when it comes to the Guardian revelation of the EU's reservations, we are offered nine items compiled by the Commission after a briefing of EU diplomats.

Head of the list – which is not necessarily in order of importance – is the so-called "Stormont lock", with the Commission concerned that this provides the DUP with an opportunity to block the all-Ireland regulatory zone from ever materialising.

Next, the proposals for a customs border are said to risk a major disruption of the all-Ireland economy. EU negotiators have pointed out that it has been rejected by groups representing Northern Irish business.

Then the Commission is concerned that the UK is seeking a fallback of no controls, checks and border infrastructure, even if the DUP vetoes Northern Ireland's alignment with the Single Market. This, the Commission fears, would leave the Single Market "wide open for abuse".

Item four complains that the UK wants to leave it to a joint EU-UK committee to work out how to avoid customs checks and infrastructure near the Irish border once there are two customs territories and sets of rules on the island of Ireland, without offering a plan B if no such solution is agreed.

Five is an objection to the UK's call for reform of the common transit convention so as to avoid the need for new infrastructure in the shape of transit offices on either side of the border, for the scanning of goods that have passed through multiple territories. Brussels has refused this as it would lead other non-EU countries to seek similar exemptions, endangering the internal market.

Six identifies what is seen as an unacceptable wholesale exemption for small and medium-sized businesses from customs duties and processes, and complains that the proposal fails to provide details on how to combat smuggling.

Interestingly, the next item brings up the matter of VAT – about which we hear so little – whence British negotiators have been told that the proposal fails to offer any solutions as to how to avoid payments and checks at the border.

The penultimate item refers to the condition on state aid and level-playing-field conditions which Theresa May agreed to in order to reassure the EU that Northern Ireland businesses would not enjoy a competitive advantage. These have been deleted.

And finally, the Commission is worried that the UK would have access to an unlisted number of EU databases to allow it to police the customs border on the island of Ireland and the regulatory border between Great Britain and Northern Ireland, maintaining such access "even if the DUP vetoed alignment with the Single Market".

To my mind, the complaints are a little on the thin side, as the Commission could have made much more about the need to implement border controls, but then it might not have wanted to frighten the horse – or the Irish.

But then, again via the Guardian we have an account of a radio interview of Bruno Bonnell, a French MP for Emmanuel Macron's En Marche! party.

Of Johnson's proposal, he complained that, "It's not a final version", describing it as "almost like a joke", saying that, "We don't even understand it". In Bonnell's view, it was "not a genuine offer" and is, "clearly a political manipulation to put the responsibility of a no-deal Brexit on the EU's side".

In particular, Bonnell objected to Johnson suggesting "a very complex process, and even more complicated than what is proposed by the backstop", yet making it "a last-minute proposal", as if he wanted to force the issue and put the responsibility of a no-deal Brexit onto the EU's shoulders. Yet, Bonnell reminded us, Johnson "is the one who refused the deal that was in place, that was proposed, that was negotiated".

The key points made here are that the proposal is "not a final version" and that its readers "don't even understand it". Neither surprises me, and this may explain why the government is so reluctant to publish the full text. Bearing in mind none of us have seen it (including MPs), we can only assume the worst.

Supposing, as Bonnell seems to indicate, that this proposal is an incoherent mess, we are even further away from a resolution than we first thought – and we've never been optimistic. But with even Macron demanding that Johnson puts the proposal to bed by Friday, the chances of a deal are receding at warp speed.

Nonetheless, confusion reigns. We are told that the EU has "flatly rejected" the UK's suggestion that Northern Ireland exit the customs union. That, we are led to believe, "would necessitate customs checks on the island of Ireland", even though the UK government insists they could take place away from the border.

Actually, leaving the customs union would not necessitate border checks and it is certainly not the case that the Withdrawal Agreement requires Northern Ireland to remain in it. In the Agreement, there are only two specific references to the customs union – one in the recital to the Irish protocol, which requires:
… maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed.
The second reference is also in the recital, stating that, "the rights and obligations of Ireland under the rules of the Union's internal market and customs union must be fully respected".

Noting that it is possible to maintain full alignment with the rules of the internal market without actually being part of it, the same must apply to the customs union. If Northern Ireland applied the EU's schedule of tariffs to third country trade, and adopted the relevant provisions of the Union Custom Code (UCC), it would be covered. Outside the EU, it cannot of course be a member of the EU's customs union.

Perversely, this would have been so much easier had the UK adopted the Efta/EEA option (with additional protocols), but now it is in a mess that even seems to be taxing the comprehension skills of the "colleagues".

I guess that with the speed of developments, Johnson's proposal is being handled at a political level, without the Commission lawyers getting a chance to fillet the document. If it was really given a thorough legal evaluation, it is possible that we could see many more problems raised.

From the Guardian, though, we learn that Johnson's spokesman is saying that the government was determined "not to budge" on the customs union issue. We are thus told:
The PM set out in his letter that this provided a broad landing zone, and we were willing to engage in further discussions on our proposals. But if your question is are we prepared for Northern Ireland to be in a different customs territory to the UK, the answer is a very firm no.
Here again, there is a confusion of terms. The customs territory does not define the customs union. For sure, the customs union applies within the EU's customs territory, but there is much more to the territory than just the customs union. And then, the UCC defines the territory, as well as setting out the detailed rules for the customs union and the internal market.

We get this also from Barnier's speech in April last year, where he says that "the backstop is needed in order to respect the integrity of the Single Market and the EU's Customs Union".

"Some people", he says, "think that we could have two different sets of rules on the island of Ireland and still avoid border checks. But Ireland is a member of the EU - and a proud member, I add. It is an active player, active, very active player, in the Single Market".

Thus says Barnier, "Goods that enter Ireland also enter the Single Market. It is called the 'Single' Market for a reason. So, since we all agree that we do not want a border, and since the UK agreed to respect Ireland's place in the Single Market, then that means goods entering Northern Ireland must comply with the rules of the Single Market and the Union Customs Code".

There we have it. No talk of being in the customs union, nor even the Single Market. Complying with the rules (all of them, to "ecosystem" level) is what counts.

Thus, when Bonnell talks about not understanding Johnson's proposal, I'm not sure I do either, especially with the handicap of not seeing the full document. The Withdrawal Agreement was legally coherent. The indications are that the Johnson proposal isn't. We really do need to see it, if we're to have any chance of finding out where we stand.

Without that, there is just confusion.

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