It is agreed by all that this is the moment of truth. When Michel Barnier privately warned the Brexit secretary, Stephen Barclay, last Friday that he needed firm proposals imminently for a revised Brexit deal to have a chance of being agreed by leaders at an EU summit on 17 October, Barclay concurred, according to leaked minutes seen by the Guardian.
For the UK to have a hope of ratification by 31 October, the gears in Whitehall needed to not merely whir but to mesh with the cogwheels in Brussels within days. During a blizzard of media rounds on Tuesday morning, Boris Johnson agreed that he would know by this weekend whether a deal was possible.
The broad parameters of what the UK is proposing have started to become visible in recent days. The prime minister rightly points to his proposal of a single agri-food zone on the island of Ireland as a significant shift from his mantra during the Tory leadership campaign position that the Irish backstop had to be ditched in its entirety.
The British government’s version of Brexit involves the UK ultimately leaving the single market and customs union, requiring the return of a range of checks on goods crossing the border between Northern Ireland and the Republic of Ireland. The “backstop” is intended as a standstill placeholder to ensure such checks do not have to be imposed between Brexit happening with a deal, and the start of a new free trade agreement yet to be negotiated between the UK and the EU.
Theresa May’s withdrawal agreement proposed keeping the whole of the UK in a shared customs territory with the EU during this period. An alternative idea involves only Northern Ireland staying in the EU’s customs territory. That would place a customs border in the Irish Sea. May described it as a threat to the constitutional integrity of the UK, but the new prime minister, Boris Johnson, has opened the current talks by proposing an all-Ireland agri-food zone. The suggestion is that he will seek to quietly build on that with further NI-only arrangements.
Given an NI-only backstop was an EU proposal in the first place, the U-turn would be warmly welcomed in Brussels, although attempts to give the Northern Ireland assembly a veto on its continuation would not be acceptable, and the DUP would be unlikely to support the prime minister in such a move in parliament.
If there is a no-deal Brexit, then there is no backstop.
Indeed, Johnson has suggested that the single regulatory zone for agricultural goods should be permanent, citing Ian Paisley’s refrain that the people of Northern Ireland may be British but its cattle is Irish. This would avoid the need for sanitary and phytosanitary (SPS) checks on the Irish border for 30% of the value of trade between Northern Ireland and the Republic, and 70% of it by flow.
EU sources say there are also signs that if a mechanism can be found for gaining the consent of the people of Northern Ireland then a temporary single-regulatory zone on the island of Ireland could be agreed for manufactured goods.
It is understood that Barnier told Barclay on Friday that he was willing to talk about consent, or governance as the EU negotiator described it, once the UK government made its move on the scope of the single regulatory zone. They could jump together.
Could that be the route to agreeing a time limit on regulatory alignment in manufactured goods? A role could be found for Stormont in agreeing to continued alignment in say, a decade, at the point by which the rest of the UK may be diverging. The “germ of an idea” of a single SPS zone, as Johnson described it, could be flowering into something more significant.
But that leaves the big issue of customs – precisely the issue that tormented Theresa May.
The government has been creditably clear that it will not sign up to a deal that leaves Northern Ireland outside its customs territory. May told the Commons that no British prime minister could agree to such a proposal and Johnson has said the whole of the UK must leave the EU as one customs territory.
The customs non-paper submitted to the European commission by the UK has caused a kerfuffle because it spells out the logical consequence of that: customs checks and controls on the island of Ireland.
The strawman reported by Irish broadcasters is a string of custom clearance centres five to 10 miles from the border. That has been an easy suggestion to knock back. The UK is instead looking at what it describes as a light-touch customs regime.
The customs authorities would use GPS for the real-time tracking of goods and freight traffic over the border, with the paperwork carried out in advance.
Trusted traders, and small and medium-sized businesses that benefit from exemptions, would in the most part cross through without trouble, but customs authorities would electronically flag those down who cause any concern. They could be asked to report to a designated centre or, more likely, be checked at their own premises.
The UK has suggested the Republic of Ireland could mirror those arrangements, with close border control cooperation between customs authorities on both sides.
But, if that is the big idea, this moment of truth is likely to be a sobering one. The EU says you cannot decouple customs and regulatory checks because it is through customs returns that goods are followed. It argues that the exemptions for many traders would open the door to smuggling. It is claimed that the supervision required in such circumstances would be destabilising to both the Irish economy and peace.
So where to go next? The ratification of a deal will rely on a significant U-turn by Johnson, and a major concession by the EU. Johnson needs to accept that Northern Ireland will remain in the EU’s customs territory – but for a temporary period. Dublin needs to be persuaded that such a time limit is better than a no-deal Brexit now.
There is no guarantee of success in parliament, despite some hopeful signs from the DUP and Tory Brexit “Spartans”. Big decisions are necessary on both sides. The last three years suggest they may well be ducked again.
