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Dealing with the Northern Ireland/Ireland border has proved the most intractable problem in the Article 50 negotiations to date. Theresa May has presented two diametrically opposite positions.

On the one hand, she wants to uphold the twenty year old Good Friday Agreement (GFA) which committed the UK government to, among other things, the removal of security installations on the border and, in effect, ensuring an open border between the North and South of Ireland. On the other, she wants the freedom for the UK to conduct its own trade deals – which means leaving the EU’s customs union.

Here’s the rub. Leaving the customs union means a hard border between the North and South of Ireland. And any hard border, even if light touch using the latest customs technology, such as cameras and number plate recognition, is a security threat.

The Chief Constable of Northern Ireland put it graphically, stating that border infrastructure would be seen as ‘fair game’ by dissident republicans and that a “fortified frontier that would have to be policed around the clock would put his officers’ lives in greater danger from anti-peace process paramilitaries.”

The GFA is totemic. It was negotiated in 1998 between two, then Member States of the EU. And it operated successfully while both sides followed the same rules as members of the EU’s single market and customs union. The EU has proved deeply aware of the issues around the North/South border and sympathetic to the importance of the GFA to peace on the island of Ireland.

Considerable EU structural funds have been deployed to help the peace building process. So it is perhaps not surprising that the EU pushed the UK government hard on the GFA issue in negotiations over the Joint Report of 8 December 2017 (the political agreement bringing to an end the first stage of the UK’s withdrawal from the EU).

The Democratic Unionist Party (DUP), which is supporting the Conservative minority government, objected to an earlier version of the text; for a brief moment the whole Article 50 agreement appeared to be in jeopardy.

The relevant part of the Joint Report, paragraph 49, is expressed in strong terms. It opens with the statement that “The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border” (which includes any “physical infrastructure or related checks and controls” (para. 43)) and that “Any future arrangements must be compatible with these overarching requirements”. Paragraph 49 then offers three options to deliver these objectives:

• Option A: a negotiated EU-UK relationship which addresses the Northern Ireland border issue; if this is not possible then
• Option B: the UK to propose specific solutions to address the unique circumstances of the island of Ireland. This is thought to refer to technological solutions such as ‘maximum facilitation’ (‘max fac’)

currently being pushed by some of the hard Brexiters. This involves number plate recognition, trusted trader schemes, data-sharing and enforcement measures away from the border.

However, as the Northern Ireland Affairs Committee recently said “[W]e have had no visibility of any technical solutions, anywhere in the world, beyond the aspirational, that would remove the need for physical infrastructure at the border.” Since this option seems a long way off, then

• Option C: “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.” (emphasis added) Option C is thus the default position yet it is Option C which features prominently in the text of the draft Withdrawal Agreement (WA).

The WA drafted up by the EU and published on 28 February 2018, is designed to put the Joint Report into legal form. It contains a specific Protocol on Ireland/Northern Ireland.

The Preamble at the start of the Protocol says that the GFA should be protected in “all its parts”. The crucial provision is Article 3 of the Protocol which is supposed to reflect Option C. It provides:

A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. 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 in accordance with this Chapter. (emphasis added)

Article 3, as currently drafted, makes the default option the rule, and so has effectively kept Northern Ireland (not the UK as a whole) in the customs union and single market for goods. This has the effect of introducing a ‘hard’ border down the Irish Sea.

This appears to contradict paragraph 50 of the joint report, introduced to get the DUP back on board, which says that the UK will ensure that “no new regulatory barriers” develop between NI and the rest of the UK. The so-called ‘East-West’ border envisaged in Article 3 is unacceptable to the DUP which sees this as a step towards a United Ireland.

It is striking that there is no mention of Options A and B in the draft Withdrawal Agreement. This is, perhaps, unsurprising since Options B and C mainly impact on the UK’s relationship with the EU once the UK has left the EU.

The future trading relationship between the UK and the EU is not the subject of the Article 50 Withdrawal Agreement negotiations. Article 50 concerns the divorce (and transition) only.

It therefore seems that Option C is the only option that can be included in the Withdrawal Agreement. Options A or B will have to be left to the negotiations on the future relationship which will not take place until after the UK has left the EU (ie after 29 March 2019, although some indications of what that future relationship might look like will be included in the political guidelines which will accompany the WA).

So Options A and B are for the future and Option C, which is for the Article 50 Withdrawal Agreement, is unpalatable to the DUP and many hard Brexiters. Is there a way out of this dilemma?

There are indications that the Cabinet is exploring the possibility that the UK as a whole stays in the customs union and single market for goods and that’s exactly what was envisaged by paragraph 49 of the Joint Report (“the United Kingdom will maintain full alignment with those rules of the Internal Market and the customs union …”) and paragraph 50 (the UK will ensure that “no new regulatory barriers” develop between NI and the rest of the UK).

A UK wide arrangement would continue until the technology is ready to deliver on some sort of Option B max fac arrangement (which some suggest will be 2023, others suggest much longer).

Yet as Katy Hayward has pointed out, while technology might combine a hard Brexit with a soft border, “[i]n a place, on an island, where modern history, politics, identity and culture is deeply defined by the border, this is one bit of magical thinking too far.”

But it is by no means clear that the EU will accept this broad reading of Option C, not least because, as Connnolly points out, it merges the question of the terms of the divorce with the terms of the future relationship. Paragraph 46 of the joint report indicates these are distinct questions.

Some might dismiss this as a technicality. But there is a more profound point: a UK wide application of Option C means that a non-EU state will be applying EU rules but without being subject to the jurisdiction of the Court of Justice and the main enforcement body, the European Commission. This will be unacceptable to the EU.

Yet continued acceptance of the Court of Justice’s jurisdiction, combined with continued membership of the single market and customs union, even if only for goods and for a limited period, may be a bridge too far for the Brexiters. The question is who will blink first. Northern Ireland is proving more of a testing ground than many had envisaged.

By Catherine Barnard, senior fellow at The UK in a Changing Europe. This piece originally featured in our ‘Brexit and the island of Ireland‘ report.


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