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07 Feb 2018


“During the second phase of the negotiations, in view of the unique circumstances and specific nature of issues related to the island of Ireland, the work on detailed arrangements required to give effect to the principles and commitments set out in the Joint Report should continue in a distinct Strand” (Council of the European Union, supplementary directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union, 29 January 2018)

“The implications of the UK’s departure from the European Union for Northern Ireland, given their complexity and sensitivity, require special and urgent consideration by the Government” (House of Lords, Select Committee on the Constitution, European Union Withdrawal Bill, 29 January 2018)

On 15 December 2017, the Council of the European Union emitted a collective sigh: the UK withdrawal process could proceed, and even the “Irish question” seemed close to a solution.

The Commission and the British negotiators had committed to avoid a hard border on the island of Ireland, to maintain rights of Northern Irish citizens to identify as Irish, British or both, and to enable continuity of cooperation across the island of Ireland while ensuring access of Northern Irish businesses to the UK internal market.

The joint negotiation report defined “physical infrastructures” and “related checks and controls” as main elements of a “hard border” to be avoided (paragraph 43), confirmed that all commitments must “remain fully consistent” with the “1998 Agreement” (otherwise known as the Good Friday Agreement or the Belfast Agreement) and “the principle of consent” (paragraph 44), reiterating several times that the UK “remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border” (paragraph 49, see also 47 and 48).

Citizens’ rights in Northern Ireland are addressed as well: the negotiation parties confirm that the 1988 Agreement ensures that citizens of Northern Ireland can choose to assert British or Irish citizenship, or both – and that this means that rights of Irish citizens in Northern Ireland must be protected beyond ‘Brexit’ (paragraph 52).

They also state that the UK commits to ensure that “no diminution of rights is caused by its departure from the European Union” (paragraph 53), stressing that this includes (but is not limited to) protection against discrimination.

On closer inspection, the negotiators did not hatch a way forward to achieve all these aims. Paragraph 52 of their report states that the rights of Irish citizens in Northern Ireland will be addressed in the second phase of negotiations, during which the text of the withdrawal agreement is detailed.

Paragraphs 49 and 50, which were changed at the last minute and are particularly convoluted, have been read as outlining three different versions of the border between Ireland and Northern Ireland.

Indeed, these paragraphs state three alternative ways to avoid a hard border: (a) through the future trading relationship between the UK and the EU; (b) through specific solutions recognising the unique position of the island of Ireland; and (c) through a combination of regulatory alignment between Northern Ireland and Ireland and the avoidance of new regulatory divergence between Northern Ireland and Britain.

In the sobering light of January, the pre-Christmas ‘deal’ on Northern Ireland looks much more threadbare than before the festivities – probably because the legal perspectives are now becoming clearer. Avoiding border posts and controls at the border between Ireland and Northern Ireland requires at least four things.

First, there should be no customs border: the North and Ireland need to remain in a customs union, which as long as Ireland remains a member of the EU, is the EU customs union.

Second, Northern Ireland and Ireland may continue to apply different VAT rates, but the VAT must be syphoned off to the EU budget, if re-evaluating imports to either part of the island of Ireland are to be avoided (which again requires spot checks on the accuracy of these re-evaluations).

Third, there should be no doubt that all goods (including agricultural products) crossing the border comply with all valid EU legislation, which requires that the EU legislation is duly implemented in both parts of the island, and also that implementation is secured by supervision with the same degree of legal certainty as in the EU.

Finally, movement of persons across the border is free, so that no controls are required in this respect.

As the Commission already recognised in December, all this can hardly be achieved if Northern Ireland leaves the Internal Market, and the Customs Union. There are ways to avoid that, such as by granting Northern Ireland the autonomy to become an EFTA member and affiliate to the EEA, and at the same time to become its own customs area from WTO perspectives and affiliate to the EU customs union.

However, if this is not paralleled by the UK at large, there will be political challenge. Interestingly, the December negotiation statement does not exclude such a development, because it only excludes regulatory divergence between Northern Ireland and Britain.

Regulatory alignment (the opposite of regulatory divergence) does not require membership in the Internal Market and the Customs Union though. The term was coined by political scientists discussing the eastern enlargement and the EU neighbourhood policy.

It is not a legal category; the pre-accession agreements between 1999 and 2007, and the later Deep and Comprehensive Free Trade Agreement with Neighbourhood Countries (such as the EU – Ukraine Association Agreement), use the term “regulatory approximation”.

This is a commitment on the part of the neighbouring (or acceding) country to emulate EU legislation in certain fields, upon which market access is eased. Importantly, regulatory approximation is not sufficient to waive border controls, and thus regulatory alignment will not avoid the “hard border” as defined in the joint negotiation report.

It is no wonder that further negotiations on the position of Northern Ireland and Ireland after the UK’s withdrawal from the EU are foreseen in the Council negotiation mandate: the negotiators have simply not developed any solution which is legally watertight.

Thus, there remains the danger that ‘Brexit’ will result in border posts and/or controls at the border between Ireland and Northern Ireland – if no specific solution for Northern Ireland is achieved or the UK at large remains in the internal market and the customs union. Will the Irish Question be solved or postponed, one wonders?

By Dagmar Schiek, professor of law at Queen’s University Belfast (QUB)


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