“Magical thinking” was on full display in Brussels yesterday as the EU published the draft legal text for the UK’s Withdrawal Treaty, remarkably including an entire protocol which would require Northern Ireland to remain permanently in the EU Customs Union if triggered. To say this has proved controversial in the UK is somewhat of an understatement, Theresa May gave the proposals short shrift, saying at Prime Minister’s Questions in no uncertain terms that they would “undermine the UK common market” and “threaten the constitutional integrity of the UK” – something she said “no UK Prime Minister could ever agree to.” Even the usual Remainer suspects have not come to the EU’s defence on this occasion, perhaps recognising for once just how extraordinary the proposals were. Meanwhile the DUP’s Westminster Leader, Nigel Dodds, expressed his “amazement” that the EU had even proposed such a solution, as well taking aim at the EU’s demand for the ongoing jurisdiction of the European Court of Justice in the whole of the UK – something which also has reared its ugly head once more in this document – describing the EU’s propositions as “in some ways quite offensive.” DUP leader, Arlene Foster, labelled the plan “constitutionally unacceptable” and “economically catastrophic” for Northern Ireland. Northern Ireland trades more with the rest of the UK than it does with the Republic of Ireland, the rest of the EU and the rest of the world put together. 60% of Northern Ireland’s total sales are with Great Britain, compared to only 14.7% with the Republic of Ireland. The “fallback” option set out in the draft text not only calls for Northern Ireland to “be considered to be part of the customs territory of the Union” but also calls for a “common regulatory area” with Northern Ireland to continue to apply EU laws in the areas of “environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport” and state aid. The EU’s inflammatory demands are a stark demonstration that they have little interest in conducting the negotiations in good faith. The EU is well aware of the political sensitivities in Northern Ireland – hence why it took the decision to make it one of three priority areas in the negotiations. Its latest needlessly aggressive proposals have less upset those political sensibilities than driven a steamroller over them. Far from trying to negotiate constructively towards a sensible compromise, the EU has acted with pure cynicism, putting a hugely contentious proposition on the table which it knows the UK could never possibly accept. Any claims the EU could have had to be acting in the best interests of preserving the delicate political balance in Northern Ireland have been revealed as completely hollow; this episode has shown the EU to be interested only in ruthlessly trying to exploit the Northern Ireland issue to push its own political objectives for Brexit. The EU has been sticking to two main lines about the proposals. The first is Michel Barnier’s claim that nothing in the text should “be a surprise” but it simply translates the joint commitments of the EU and the UK made in the December agreement, subsequently parroted by Irish Foreign Minister Simon Coveney and others. This is demonstrably untrue. The EU’s “fallback” option derives from the final sentence of paragraph 49 of the UK-EU December agreement, which states: The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. 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 Agreement. What the EU has omitted entirely from its proposal is any consideration of the following paragraph 50, which states: In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market. The EU’s proposal would directly violate this in multiple parts. Forgetting such a crucial paragraph as this is a curious error indeed for an organisation which prides itself on its opposition to “cherry-picking”, hence leading to the second EU line attempting to justify why paragraph 50 has been ignored: because it is an “internal matter for the UK”. This claim is also demonstrably false. The EU has committed to protecting the Good Friday Agreement – it made it one of its key priorities for phase one of the negotiations and it is restated multiple times in this document as well. This proposal as presented by the EU would drastically alter the constitutional order of the UK, undermining one of the central features of the Good Friday Agreement. Lord Trimble, one of the architects of the Good Friday Agreement, suggested that changes of this magnitude would need to be approved by a separate referendum in Northern Ireland. Brussels knows exactly what it is doing. It knows that the UK could not allow this to happen, and hence the only way of the UK avoiding new barriers between Northern Ireland and Great Britain would be for the whole of the UK to accept remaining in the Customs Union and aligned with vast swathes of single market regulations. The fact that it is using the Irish border issue as leverage to try to force this outcome by stealth, while wrapping it up in emotive rhetoric around preserving peace and respecting the constitutional settlement in Northern Ireland, reveals the EU to be a deeply devious and underhand organisation which has few inhibitions over how ruthless and unscrupulous it is prepared to be to secure its own way in the negotiations. Suggestions that Barnier and Labour’s Keir Starmer have been working “in tandem” only add to the growing indications that the EU is being Machiavellian, rather than candid, over the issue. By the same token, the UK negotiators should consider throwing back the EU’s logic on them. If the UK’s constitutional order and preservation of the Good Friday Agreement are to be dismissed by the EU as “internal UK issues”, then the UK should similarly dismiss the EU’s concerns over the “integrity of the internal [single] market and Customs Union” as “internal EU issues”. If the EU’s idea of a constructive approach to the negotiations is to offer the UK a completely unworkable offer and then say “stuff you, go deal with the consequences yourself”, then the UK should simply make a unilateral guarantee that it will not erect border controls on the Irish border and then leave the EU to decide for itself whether it is going to force the Republic of Ireland to erect any. EU minds might then be given the incentive to actually start focusing on a solution to the problem rather than thinking of new legal mechanisms to ambush the UK with rogue demands. It is worth stepping back for a minute to consider why an Irish border solution is even necessary at all. The UK and the Republic of Ireland could simply make unilateral decisions to maintain an open border even in the absence of any agreed solution for the border. The practical consequences of this would principally be a small loss of customs revenue and a minor increase in the risk of goods circulating which had been deemed legal in one jurisdiction but not in the other, for whatever reason. That is ultimately all that the “integrity of the single market and customs union” amounts to. Northern Ireland exports to the Republic are worth £3.4 billion a year, which is equivalent to less than 0.1% of the EU’s annual external trade of £3.5 trillion. The EU’s idea of a proportionate response to these largely negligible problems has been to propose to undermine the constitutional order of the UK as set out by the Good Friday Agreement. Moreover, the EU’s entire logic for including this solution was that it was meant to be a “fallback” in case nothing else was agreed. But when Barnier was challenged in the press conference as to what the point of a “backstop” protocol was that the UK would never accept, he failed to answer the question, instead pretending not to understand. Barnier is no fool, but neither are those watching him. If he is indeed trying to play the game of ‘bouncing’ the UK back into the Customs Union by proxy, this latest proposal will ultimately go down as a major mis-step in his plan. It increasingly looks like the European Commission has attempted to weaponise the Irish border issue while failing to understand the sensitivities and depth of feeling around it themselves. It has backfired in their faces and exposed their cynical game playing for what it is.