Saturday, 9 December 2017

The Joint UK-EU Report (2) - Ireland and Northern Ireland

On Friday 8th December, there was acceptance by the EU that "sufficient progress" had been made to allow talks to proceed further - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU.  This post looks at the Report in relation to Ireland and Northern Ireland.

Background:

It was obvious even before the 2016 Referendum that the island of Ireland would present particular difficulties with Brexit which will result in a land border between a European Union Member State (the Republic of Ireland) and part of the United Kingdom (Northern Ireland).  Very few people ever truly wanted a "hard border" between the two along with all the necessary customs checks.

In her Lancaster House Speech (January 2017), Theresa May stated the wish to retain the "Common Travel Area":




"We cannot forget that, as we leave, the United Kingdom will share a land border with the EU, and maintaining that Common Travel Area with the Republic of Ireland will be an important priority for the UK in the talks ahead. There has been a Common Travel Area between the UK and the Republic of Ireland for many years.

Indeed, it was formed before either of our 2 countries were members of the European Union. And the family ties and bonds of affection that unite our 2 countries mean that there will always be a special relationship between us.

So we will work to deliver a practical solution that allows the maintenance of the Common Travel Area with the Republic, while protecting the integrity of the United Kingdom’s immigration system.
Nobody wants to return to the borders of the past, so we will make it a priority to deliver a practical solution as soon as we can."

Further more, "The Troubles" in Northern Ireland (1969-99) cost in the region of 3600 lives and the Good Friday Agreement (GFA) of 1998 is an international treaty on which the Northern Ireland "Peace Process" was based.  Membership of the EU, with its freedom of movement rights across the borders of Member States, has been an important factor underlying peace in Northern Ireland - BBC News 3rd December 2017 and co-operation between Ireland and Northern Ireland is a central part of the GFA and "for achieving reconciliation and the normalisation of relationships on the island of Ireland" (Report at para 47).  In the 2016 Brexit referendum, Northern Ireland voted 56% to 44% to remain in the EU.

Northern Ireland will be part of the United Kingdom unless the people there ever vote in a referendum to join the Republic of Ireland - section 1 of the Northern Ireland Act 1998.

The Joint Report:

The position of Ireland and Northern Ireland is set out in paras. 42 to 56.

The Good Friday Agreement will be protected.  "Both Parties affirm that the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation. They agree that the Good Friday or Belfast Agreement reached on 10 April 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi- party negotiations (the '1998 Agreement') must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement."

The Report states that the UK recalls its commitment to protecting the operation of the 1998 Agreement - (report at para 43); its commitment to avoiding a hard border (para 43); the need to protect the constitutional status of Northern Ireland and the principle of consent (para 44).  Also, the UK respects Ireland's ongoing membership of the EU - in particular Ireland's place in the Internal Market and the Customs Union (para 45) and, very significantly, the UK recalled its "commitment to preserving the integrity of the internal market and Northern Ireland's place within it, as the UK leaves the EU's Internal Market and Customs Union" (para 45).

Para 46 states that the commitments and principles outlined in the Report will not pre-determine the outcome of wider discussions on the future relationship between the EU and the UK and are, as necessary, specific to the unique circumstances on the island of Ireland.  They are made and must be upheld in all circumstances irrespective of the nature of any future agreement between the EU and the UK.

Para 47 informs us that the UK and the EU have carried out a "mapping exercise" showing that North-South co-operation relies to a significant extent on a common EU legal and policy framework

Para 49 is key and gets to the heart of the matter - "The UK remains committed to protecting North-South co-operation 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."

Then para 50:

 "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."

We therefore appear to have:

1)  a preference to achieve these objectives (i.e. North-South co-operation and avoidance of hard border) through the overall EU-UK relationship ....

2)  If (1) not possible then UK to propose specific solutions - these are not set out further ....

3)  If no agreed solutions under (2) then "full alignment" for Northern Ireland with some, not necessarily all, rules of the Internal Market and the Customs Union.  The test will be whether a rule supports North-South co-operation, the all-island economy and the protection of the 1998 Agreement.

(3) seems, at least to me, to be particularly problematic.  In all likelihood, if (3) is reached, ALL the Internal Market (IM) and Customs Union (CU) rules could be needed because of the "all-island economy."  If that proves to be correct then it would appear necessary for the rules of the IM and CU to apply to the whole of the UK otherwise there would be a hard border between the island of Ireland and rest of UK (Scotland, Wales and England).  Of course, it may be that the government has in mind a more limited selection of rules in relation to which full alignment will be maintained.

A mechanism will be created to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU IM and CU - para. 51.

Under para 52 the rights of those people of Northern Ireland who are also Irish citizens will continue to enjoy their EU rights.

Under para 53 the UK commits to ensuring that there is no diminution of rights caused by Brexit including in the area of discrimination enshrined in EU law.  The UK also commits to upholding human rights and equality standards.

The Common Travel Area (CTA) is the subject of para 54 - "Both Parties recognise that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area), while fully respecting the rights of natural persons conferred by Union law. The United Kingdom confirms and accepts that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under Union law, in particular with respect to free movement for EU citizens."

Commitments to the PEACE and INTERREG funding programmes will be honoured by both EU and UK - para 55.

Finally, this section of the report states (para 56) - "Given the specific nature of issues related to Ireland and Northern Ireland, and on the basis of the principles and commitments set out above, both Parties agree that in the next phase work will continue in a distinct strand of the negotiations on the detailed arrangements required to give them effect. Such work will also address issues arising from Ireland’s unique geographic situation, including the transit of goods (to and from Ireland via the United Kingdom), in line with the approach established by the European Council Guidelines of 29 April 2017."

So, in essence we have a bundle of important commitments and principles which will have to be worked out in detail in the forthcoming negotiations.  How an unwanted hard border will be avoided whilst taking the UK out of the Internal Market and Customs will be the crucial element.




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