Out-Law / Your Daily Need-To-Know

Brexit: Irish border 'backstop' to run until 2021, says UK

07 Jun 2018, 5:15 pm

The UK government has proposed a "time-limited" temporary customs arrangement with the EU, which it says would avoid the need for a 'hard' border between the UK and Ireland.

Under its "backstop" proposal, there would be no tariffs, quotas, rules of origin or customs declarations on all UK-EU trade, not just trade between Northern Ireland and the Republic of Ireland. The UK would also be bound by some parts of the EU's Common Commercial Policy (CCP), meaning it would be required to apply the EU's common external tariff (CET) and Union Customs Code at the UK border.

The UK would, however, technically leave the EU customs union, allowing it to negotiate, sign and ratify free trade agreements with other countries and to implement those elements that do not affect the functioning of the temporary customs arrangement, according to its published technical note.

The proposal must now be agreed with the EU, which had previously proposed that Northern Ireland remain in the EU customs union in the event that that the UK and EU cannot agree alternative arrangements. It would only come into force in "specific and narrow circumstances, such as a delay in the implementation of [a final] end state customs arrangement", according to the note.

"The UK expects the future arrangement to be in place by the end of December 2021 at the latest," it said in the note.

The UK is due to leave the EU in March 2019. The current draft withdrawal agreement envisages a transitional period, ending on 31 December 2020, during which the UK would remain a member of the EU single market and customs union but would no longer participate in EU decision-making.

Brexit and EU law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com, said that the UK would now have to "work hard to persuade the EU that its proposed arrangement is acceptable".

"There are two issues: first, the arrangement applies to the UK as a whole rather than just to Northern Ireland; secondly, it is time-limited, being envisaged to last no longer than 31 December 2021. The latter is likely to prove a particular obstacle to securing the EU's approval," he said.