The Irish border issue threatens to test the UK government’s newfound unity over Brexit when the European Union unveils the first complete draft of Britain’s EU divorce treaty later this week.

In the document to be finalised on Wednesday, the European commission will spell out that, as a last resort to avoid a hard border, Northern Ireland would remain in the EU customs union and aligned to European single market rules.

One senior EU diplomat said the text would reflect that unless there are mutually-agreed alternatives: “Northern Ireland is to stay in a de-facto customs union with the EU combined with alignment on trade in goods.”



British and European negotiators papered over their divisions on Ireland with an agreement on phase one of Brexit talks in December that allowed both sides to claim victory. That agreement – contained in a 15-page joint report – is now being turned into formal legal treaty by EU lawyers, leaving no room for ambiguity about the status of the Irish border.

Quick Guide Why is the Irish border a stumbling block for Brexit? Show Counties and customs Inside the EU, both Ireland and Northern Ireland are part of the single market and customs union so share the same regulations and standards, allowing a soft or invisible border between the two.

Britain’s exit from the EU – taking Northern Ireland with it – risks a return to a hard or policed border. The only way to avoid this post-Brexit is for regulations on both sides to remain more or less the same in key areas including food, animal welfare, medicines and product safety. The 'backstop' in Theresa May's Withdrawal Agreement was intended to address this - stating that if no future trade agreement could be reached between the EU and the UK, then rules and regulations would stay as they are. This has been rejected by Brexit supporters as a 'trap' to keep the UK in the EU's customs union, which would prevent the UK striking its own independent trade deals. There are an estimated 72m road vehicle crossings a year between Northern Ireland and the Republic of Ireland, and about 14% of those crossings are consignments of goods, some of which may cross the border several times before they reach a consumer. Brexit supporters say this can be managed by doing checks on goods away from the border, but critics say it will be difficult to police this without any physical infrastructure like border posts or cameras, which could raise tensions in the divided communities of Ireland.

Interactive: A typical hour in the life of the Irish border Photograph: Design Pics Inc/Design Pics RF

The British government will be presented with a 200-page Brexit treaty that consists of more than 160 legal articles. Access to the document is tightly controlled. Diplomats are only allowed to view the draft in a reading room and must leave their phones at the door.



The European commission’s leadership is expected to sign off the draft on Wednesday, before handing it to national diplomats of the EU’s remaining 27 member states who aim to revise the draft by the end of March. Michel Barnier, the EU’s chief negotiator, wants to agree a final version with the UK by October 2018.

The Brexit treaty will cover all aspects of the UK’s divorce and transition out of the EU – but is not a trade deal. Negotiators expect to agree a non-binding outline of key points on trade, allowing formal talks to begin once the UK leaves the EU in March 2019.

The EU and UK have agreed three options to avoid a hard border on the island of Ireland.



The first option states that a hard border could be avoided “through the overall EU-UK relationship”, meaning that the UK would remain embedded in EU structures.

EU officials think this is impossible as Theresa May has ruled out keeping the UK in the customs union and single market. In a move to outflank the government, the Labour leader, Jeremy Corbyn, said on Monday he wanted “a new comprehensive UK-EU customs union”. But a customs union is not enough to solve the Irish question. EU officials think Northern Ireland needs to be aligned in other areas, such as animal, medicine and food standards, to prevent the Irish border becoming a back door for smugglers.

The second option calls on the UK to “propose specific solutions to address the unique circumstances of the island of Ireland”. This remains the British government’s preferred option and the government suggested solving the issue through technology or a unique customs arrangement that would make the UK responsible for customs checks on the EU border.

But the EU has dismissed these ideas as “magical thinking” and officials are deeply sceptical that the UK has any “specific solutions” that will be acceptable to the EU. “The issue has been up in the air since 15 December and we have not heard anything,” said the senior official.



The final option, known in Brussels as the backstop, states that “in the absence of agreed solutions”, the UK “will maintain full alignment” with the single market and customs union rules that support the Good Friday agreement and all-island economy.

Turning this promise into legal text is likely to re-open divisions between May and the Democratic Unionist party propping up her government. In December, the DUP insisted on inserting text in the EU agreement stating that there would be no new regulatory barriers between Northern Ireland and the rest of the UK. Brussels sees this as a promise by London to the DUP that does not bind the EU.

The Irish government has been pressing the EU to move quickly and not leave the border question to be settled at the final hour. So far, the rest of the EU has supported this approach. “There is no appetite among the EU27 to see the ball kicked into the long grass,” one senior diplomat said. “Things have to move; that is clear. Nobody wants a groundhog day moment.”

The Irish text may be contained in a protocol attached to the Brexit treaty, a device that makes it no less legally watertight, but perhaps easier to revise, if the British come up with a different way of avoiding a hard border.

The Brexit treaty will also see the return of the “punishment clause” that angered the Brexit secretary, David Davis. This provision – the idea that the UK could lose single market benefits if it breaks EU rules during the transition – surfaced in a footnote on the transition text.



The loose wording irritated some EU member states, who complained to Barnier that it was presented in a provocative way. The basic idea will remain in the text, but the treaty will spell out that the UK will be subject to usual EU infringement procedures – rather than an ad-hoc arrangement that means the commission is judge and jury.

For the EU, this means the European court of justice, another aspect of the Brexit treaty that is expected to cause conflict with the UK.

