Throughout the withdrawal negotiations it has been clear that the Irish border simply cannot be ignored in the UK’s plans for its post-Brexit relationship with the EU.
Indeed, a ‘backstop’ solution to avoid a hard border needs to be agreed before the EU will sign off on the withdrawal agreement. Securing a Brexit deal is therefore contingent on not merely a resolution of the Irish border question but also a number other issues related to the island of Ireland.
The centrality of the Irish border stems from the commitments that the EU and the UK have made to not merely avoiding a hard border but also upholding the 1998 Belfast ‘Good Friday’ Agreement in all its parts and supporting North-South co-operation on the island of Ireland.
To deliver on these commitments, the UK requires an extremely close economic and political relationship with the EU.
As the backstop debate has made clear, the only available solution to avoiding a hard border on the island of Ireland—and delivering on the further commitment to “no physical infrastructure at the border or associated checks and controls”—is for Northern Ireland, with or without the rest of the UK, to remain in a customs union with the EU and maintain regulatory alignment with the internal market acquis, at least as far as goods are concerned.
However, delivering on commitments also requires, as the proposed backstop envisages, regulatory alignment in other areas if, for example, current and future cross-border co-operation is to be supported.
The list of areas is extensive: environment, health, agriculture, transport, education, tourism, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.
In the absence of other solutions, what has been proposed for the backstop will form part of the future UK-EU relationship and the white paper needs to make this clear.
The backstop, moreover, represents merely the minimum needed to deliver on commitments regarding the border and Northern Ireland. For example, it does not provide for the free movement of services, crucial to delivering areas such as cross-border health services. As for free movement of people, this is limited to UK and Irish nationals under the Common Travel Area.
To deliver on the commitments the UK has made, continued participation in key programmes and co-operation mechanisms is necessary. Continued involvement in the INTERREG – an EU funded programme – has been agreed in principle, at least for the immediate future, but should be formalised.
In terms of supporting the softening of the border and the promotion of North-South cooperation, shared UK and Irish participation in different EU initiatives in the areas of policy and judicial cooperation, for example the European Arrest Warrant, has proven extremely valuable, and arguably essential.
There is much concern over Brexit’s potential impact should involvement in such mechanisms cease. There are also concerns about how Brexit will affect the rights of individuals and whether and how the UK government can uphold its commitment to ‘no diminution of rights’ under the 1998 Agreement.
The white paper must recognize the numerous ways in which EU membership has facilitated the softening of the Irish border and the promotion of co-operation on the island of Ireland. In doing so, it needs to avoid a narrow focus on trade and customs and set out clearly the areas in which wider co-operation will be pursued and how.
That being said, trade and customs are vitally important and the white paper also needs to spell out how frictionless movement of goods across the border can actually be delivered.
If the government is serious about its commitments to avoiding a hardening of the Irish border, upholding the 1998 Agreement and supporting North-South co-operation, it must make clear how, if at all, this can be reconciled with its red lines.
The white paper, therefore, should also engage with the EU’s language of “flexible and imaginative solutions’ for addressing the ‘unique circumstances on the island of Ireland”. That will require an openness to differentiated arrangements.
The white paper should demonstrate how an ambitious UK-EU relationship would negate the need for the backstop’s implementation except as a temporary or partial measure. Perhaps then the UK will be in a position to persuade the EU to extend its ‘lean’ free-movement-of-goods-only version of the internal market to the overall UK-EU relationship.