Officials from the UK and EU are drawing up a plan to in effect keep Northern Ireland in the customs union and the single market after Brexit in order to avoid a hard border.
The opening of technical talks followed a warning from Brussels that keeping the region under EU laws was currently the only viable option for inclusion in its draft withdrawal agreement.
The development, first reported by the Guardian on Friday and later confirmed by the EU’s chief negotiator, Michel Barnier, triggered an immediate row.
Scotland’s first minister, Nicola Sturgeon, tweeted: “If NI stays in single market, the case for Scotland also doing so is not just an academic ‘us too’ argument – it becomes a practical necessity. Otherwise we will be at a massive relative disadvantage when it comes to attracting jobs and investment.”
Anne-Marie Trevelyan, a Tory MP and officer in the European Research Group of Brexit-supporting Conservatives, accused Barnier of “playing hardball”. “I am surprised that the media are reporting his comments as if they are the only voice and hard fact,” she said. “Perhaps Mr Barnier could remember that the UK is in negotiations, which is a two-way discussion.”
“It is important to tell the truth,” Barnier said. “The UK decision to leave the single market and to leave the customs unions would make border checks unavoidable. Second, the UK has committed to proposing specific solutions to the unique circumstances of the island of Ireland. And we are waiting for such solutions.
“The third option is to maintain full regulatory alignment with those rules of the single market and the customs union, current or future, that support north-south cooperation, the all-island economy and the Good Friday agreement.
“It is our responsibility to include the third option in the text of the withdrawal agreement to guarantee there will be no hard border whatever the circumstances.”
British officials negotiating in Brussels had been told by their counterparts on Tuesday that while full alignment would be the only option included in the withdrawal treaty, there could be a “sunset clause” included in the legally binding text, which is expected to be published in about two weeks.
Such a legal device would make the text on Northern Ireland null and void at a future date should an unexpectedly generous free trade deal or a hitherto unimagined technological solution emerge that could be as effective as the status quo in avoiding the need for border infrastructure.
As it stands, however, the UK is expected by Brussels to sign off on the text, which will see Northern Ireland remain at the end of the 21-month transition period under a large expanse of customs union and single market legislation relevant to the north-south economy and the requirements of the Good Friday agreement.
The move is widely expected to cause ructions within both the Conservative party and between the government and the Democratic Unionist party, whose 10 MPs give Theresa May her working majority in the House of Commons.
The UK will be put under even greater pressure to offer up a vision of the future relationship that will deliver for the entire UK economy, but the inability of that model to ensure frictionless trade is likely to be exposed. A meeting of the cabinet to discuss the Irish border on Wednesday failed to come to any significant conclusions.
In Northern Ireland, the UK government’s contradictory position on the customs union and frictionless trade is said to present not only a danger to trade but a risk to peace.
Earlier this week George Hamilton, chief constable of the Police Service of Northern Ireland, warned that any infrastructure at the border, however light, would become a target for armed groups and pose a danger to his officers. “The terrorists only have to be lucky once and get a result with catastrophic consequences,” he said.
The EU’s proposed text is said to be the logical consequence of the agreement reached between the European commission and the UK government in December to allow the talks to move on from the issues of citizens’ rights, the financial settlement and the Irish border.
The UK government had said that “in the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the 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 [Good Friday] agreement”.
Despite initial protests from the DUP, the unionists were bought off with paragraph 50 of the joint agreement, in which the British government promised to ensure that there would be no barriers to trade between the British mainland and Northern Ireland.
The DUP MEP Diane Dodds said any suggestion of “unavoidable” customs controls on the Irish border was out of step with the three approaches set out in the joint report published in December. “That agreement makes it clear that the integrity of the UK must be preserved as our nation leaves the single market and customs union,” she said.
“Everyone has committed to avoiding a hard border and the UK has said it will not impose physical infrastructure at the border. It seems it is only the EU that is brandishing the threat of customs controls.”
David Davis, the Brexit secretary, has suggested that the whole of the UK could remain in regulatory alignment with the EU. The DUP trumpeted the concession as evidence that Northern Ireland and Great Britain would be leaving the EU on the same terms.
Those commitments to the DUP are regarded by the EU, however, as an internal arrangement for the British government outside the scope of the legal text.