The EU’s chief negotiator, Michel Barnier, has conceded that border checks within the UK may be necessary in the future as Brussels published a draft withdrawal agreement under which the Northern Ireland would effectively stay in the single market and customs union after Brexit.



In a development that pushes the negotiations into a dangerous new phase, the EU said the territory of Northern Ireland may be considered part of the bloc’s customs territory after Brexit, with checks required on goods coming in from the rest of the UK, to avoid a hard border on the island of Ireland.

Under the draft withdrawal agreement, a raft of single market legislation would also apply to ensure the province stays in lockstep with laws of the Republic of Ireland that are relevant to the north-south flow of trade and in maintaining all parts of the Good Friday agreement that has kept the peace since 1998.



Quick guide Why is the Irish border a stumbling block for Brexit? Show Hide 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

“A common regulatory area comprising the union and the United Kingdom in respect of Northern Ireland is hereby established,” the draft paper says. “The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and north-south cooperation protected.”

Downing Street insisted overnight that the prime minister would not sign up to “anything that threatens the constitutional integrity of the UK” amid claims that the EU is seeking to annex Northern Ireland.

Speaking on publication of the draft agreement, Barnier told reporters in Brussels: “This backstop will not call into question the constitutional or institutional order of the UK. We will respect that.

“We are just saying that on the island there are two countries, we need to fund the capacity for certain issues relating to the internal market and customs union, that we need to ensure the Good Friday agreement can function ... We need to ensure there is regulatory consistency, alignment.”

Barnier added of the claims that the move would create a border between Northern Ireland and the rest of the UK: “In ports and airports there will be controls, but I would not refer to a border ... I am not trying to provoke anyone here. And contrary from what I read there is no arrogance here. I am not being arrogant in any way.”

Barnier also appeared to suggest that Labour leader Jeremy Corbyn’s proposal for a UK-EU customs union could be key to solving the problem of the Irish border.

“The only thing I can say is that on the customs union this might be an element of the future relationship. But we’ll see what the position of the UK Government is first.”

The EU document, which has 168 clauses, two protocols and an annex, puts into legal terms the commitments made in a joint report between the UK and the commission last December under which three options for avoiding a hard border were proposed.



The draft paper leaves open the possibility that a future free-trade deal or some bespoke technological solutions could negate the plan for full regulatory alignment, although in Brussels such a scenario is regarded as highly unlikely.

The document also makes it clear that the fallback position needs to be in place as a trade deal that might solve the issue of the Irish border would not be ready for the day after Brexit.

Play Video 0:35 'Like the congestion charge': Boris Johnson on Irish border checks post-Brexit – video

The draft agreement instead focuses on “operationalising” the final, and most controversial option in paragraph 49 of the joint report, under which Northern Ireland would stay under EU law.

Northern Ireland would stay under the jurisdiction of the European court of justice (ECJ) and the EU’s VAT regime and state aid rules would apply.

Of the furious reaction in the UK to the draft agreement, Barnier said: “My attitude is and will always be keep calm and be pragmatic ... On the basis of paragraph 49, that we have agreed with the UK government, we are trying to find solutions. I will also work with the politicians of Northern Ireland.”

There is no mention in the paper of Downing Street’s promise in the joint report to keep the whole of the UK in regulatory alignment with the EU to avoid a border emerging in the Irish Sea. Barnier said he regarded that as a domestic deal brokered by the UK government.

Q&A What is a customs union? Show Hide A customs union means that countries agree to apply no or very low tariffs to goods sold between them, and to collectively apply the same tariffs to imported goods from the rest of the world. International trade deals are then negotiated by the bloc as a whole. For the EU, this means deals are negotiated by by Brussels, although individual member state governments agree the mandate and approve the final deal. The EU has trade deals covering 69 countries, including Canada and South Korea, which the UK has been attempting to roll over into post-Brexit bilateral agreements. Proponents of an independent UK trade policy outside the EU customs union say Britain must forge its own deals if it is to take advantage of the world’s fastest-growing economies. However they have never explained why Germany manages to export more than three times the value in goods to China than Britain does, while also being in the EU customs union. Jennifer Rankin

The publication throwspushes the negotiations into a dangerous phase, although Barnier appeared to suggest that he did not need agreement on the text to open talks about a future trade deal.

Beyond the Irish border, the EU also included its positions in areas where the negotiators have yet to find a compromise.

The document states that the ECJ will be the arbiter of disputes over the withdrawal agreement, a position that has been described by Jacob Rees-Mogg, the chairman of the European Research Group (ERG) of backbenchers, as turning the UK into a vassal state.

It states that the transition period will end after 21 months and that citizens arriving in the UK during that period should be treated the same as those who are already in the country. The prime minister has insisted she wishes to treat those arriving after Brexit day differently.

Barnier said that such were the differences that agreement on a transition period “was not a given”.

Of the prime minister’s speech on Friday, in which May is expected to lay out the government’s position on a future trade deal, Barnier suggested that it was only through changing its red-lines that its targets of frictionless trade and the status quo in a series of sectors could be achieved.

An accompanying EU document to the draft withdrawal agreement also confirms that the UK will have to come to an agreement with Spain over the future of Gibraltar, if the rock is to be covered by the terms of the transition period. Among its demands, Madrid is seeking to co-manage Gibraltar’s airport and wants commitments to tackle tax evasion on the disputed territory.