Analysis of the Irish border provisions in the Brexit withdrawal agreement.
The most controversial provisions in the recently proposed draft of the Brexit withdrawal agreement were those relating to the Irish border. They are tucked away at the end in a separate protocol, but they were soon found and criticised as an EU attempt to “annex” the Northern Ireland economy as a means to ensure no border checks were applied on the land border between the UK and Ireland. Conversely, they were defended by those who argue that the Leave campaign during the referendum, and the UK government since, have promised no border controls, and that the Commission’s proposal only elaborates upon what the UK government promised in the joint report of December (discussed here).
It seems hard to reconcile the UK government’s competing simultaneous objectives of avoiding border checks on the Irish border, diverging from EU product standards, and eschewing checks on trade between Northern Ireland and the rest of the UK. At present, it seems possible that the talks on the whole withdrawal agreement will founder on this issue – damaging the intention of avoiding a hard border as well as the many other valuable objectives of that agreement.
In this post, I’ll first summarise and critique the UK’s preferred plans and then the Commission’s proposed text in the withdrawal agreement on this issue, proposing constructive solutions in annexes to this blog post – which also annotate the proposed Protocol on Irish border issues in detail. This builds on earlier proposals I made on the border issues; and note I’ve also annotated the text of the withdrawal agreement on the issue of a transition period (or implementation period).
The key issue with UK plans is the promise to avoid a hard border with Ireland – made by the Leave campaign during the referendum and upheld by the UK government since. Some have argued that the border issue has nothing to do with the Good Friday Agreement or the EU, but this is missing the wood for the trees twice over: first because those issues are all linked in the broader political context, and secondly because the UK has made commitments on them as part of the Article 50 process.
The key commitment is this, from the December joint report:
43. The United Kingdom’s withdrawal from the European Union presents a significant and unique challenge in relation to the island of Ireland. The United Kingdom recalls its commitment to protecting the operation of the 1998 Agreement, including its subsequent implementation agreements and arrangements, and to the effective operation of each of the institutions and bodies established under them. The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.
There are three options to this end, as agreed in paragraph 49 of the same report:
... 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.
The Commission’s withdrawal agreement fleshes out the “full alignment” option, but not the other two options, in the absence of any detailed proposals from the UK as to how either of the other options could work. Their method of doing this is objectionable, as I explain below; but the UK would certainly make its case easier if it made some proposals on this issue. As the Prime Minister quite rightly said last week, in her Mansion House speech on Brexit policy:
... it is not good enough to say, ‘We won’t introduce a hard border; if the EU forces Ireland to do it, that’s down to them’. We chose to leave; we have a responsibility to help find a solution.
There’s a technical problem addressing the UK’s preferred options in the withdrawal agreement, since they depend upon negotiations that would likely take place after Brexit day. But the intention is for the withdrawal agreement to refer forward to the future relationship (even if the Commission’s text doesn’t reflect that), in accordance with the wording of Article 50. So I’ve suggested some text that would be part of a protocol on the future relationship, distilled from the Prime Minister’s recent speech.
Are those options technically feasible? Supporters often refer to a study for the European Parliament on the issue. (See also the UK government paper on a customs relationship after Brexit, and the broader discussion in this CapX blogpost). But the blogpost admits that “if the EU insists the December text must be interpreted to preclude, for example, bonded warehouses anywhere near the border, or cameras on roads leading to the frontier, then a technological solution looks impossible”; and the suggested solution in the study for the European Parliament refers to technology which refers to “opening the gate automatically”. Needless to say, a gate is physical infrastructure; and you’ll have to go a looong way back from the Irish border to find an area that voted to Leave the EU.
Some point to the EU’s customs cooperation treaties with non-EU states; but they facilitate border checks, rather than remove them completely. For instance the EEA treaty protocol on border checks with Norway refers to “frontier posts” and “express lanes”. So does the EU/Swiss customs cooperation treaty. It’s argued that the US/Canada border is a model, but that also entails facilitated border checks.
In light of all this, and for reasons discussed below, I’m leaving it to others to suggest the details of the technical solutions that they envisage might be possible for the border issue.
As a starting point, let’s examine the contention that the Commission’s proposals on the Irish border do no more than spell out what the UK agreed to in the December joint report. The key points of what the UK agreed to were this:
49. 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.
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.
Comparing this text to the Commission’s proposal, the proposal does not merely reflect what the UK agreed to. The UK did not agree to “full alignment” with EU law as the main rule, with the other two options as subsidiary. It did not agree to a text which treats Northern Ireland as distinct from the rest of the UK: para 50 says exactly the opposite. It did not even agree that the “full alignment” option would appear in the withdrawal agreement. As for the content of that option, while some continued link with substantive EU law is unavoidable, the UK did not agree to apply that law as such, or to continued ECJ jurisdiction, or to continued powers for EU bodies, or to joint customs controls with EU officials in Northern Ireland.
While the UK has failed to present any text at all, the Commission has failed to explain the text it proposed. None of its approaches to enforcement of the Protocol appear in the EU’s customs union with Turkey, and so the obvious question is why they need to apply here. Some of its specific proposals (continuing to apply data protection law, or state aids law) have no obvious explanation.
Therefore, in the proposed new text (Annex 1) and my annotation of the proposed Protocol (Annex 2) I suggest amendments that would a) ensure the territorial integrity of the UK, and its internal market, on equal footing with the Good Friday Agreement and the principle of consent; b) restore the “full alignment” option to its agreed position as the third priority, with text in a “future relationship” protocol about the two other options; and c) remove the many excessive and disproportionate elements in the details of the Commission’s “full alignment” proposal.
Some supporters of the Commission’s proposals have argued that its strong defence of the EU27 position is only to be expected. In general terms, this is correct, and is equally true of countries around the world: Brexiters are surely the only people left on the planet who believe that Trump’s intentions when negotiating a trade deal with the UK will be in any way altruistic.
In the Northern Ireland context, however, it is problematic. A solution to decades of conflict there was not the result of the two communities pushing forward their positions as strongly as possible, but of the willingness of each of them to try and find accommodation with the other’s concerns. The Good Friday agreement was a solution that satisfied the broad spectrum of the nationalist community, but also the concerns and interests of the majority of the unionist community too. It would never have been feasible or legitimate without the consent of both.
From that perspective, therefore, the Commission’s proposals obviously fail, with their inversion of the agreed options, lack of recognition of concerns about territorial integrity, and unjustified power-grabs concerning the implementation of the proposal immediately aggravating the unionist side. The drafters of the Protocol seem unable to conceive of the UK as a non-Member State of the EU. Perhaps it’s worth remembering that in the new Black Panther movie, the “revenge imperialist” was the bad guy.
But while the Commission’s drafters need to exorcise their inner Killmonger, many UK pundits need to exorcise their inner Cromwell. Endless insults directed at Ireland, and cod analyses of Irish politics (there’s a special place for the instant experts in Irish politics who call the Taoiseach the “Irish Prime Minister”) have only backfired. “Let’s take back control – of Ireland!” is not a serious argument. As well as the Irish government, the nationalist community in Northern Ireland has genuine concerns too; and we’re in danger of forgetting sometimes that a majority in Northern Ireland voted Remain. If, as we’re sometimes told, the UK-wide Leave vote of 52% was “overwhelming”, what the hell do we call the 56% Remain vote in Northern Ireland?
The weird suggestions about Ireland solving the problem by leaving the EU need to stop (to avoid a border, they would anyway entail Ireland also joining a customs and economic union with the UK: please do read Fintan O’Toole’s analysis of the politics and historical context of “Irexit”). As I noted in a previous article, the notion of Ireland leaving the EU – against the views of 88% of voters – seems about as likely as the ghost of Eamon de Valera leading the next Orange order parade. Let me add that the notion of Ireland rejoining the UK is about as likely as de Valera being joined there by Michael Collins – as his same-sex partner.
So what should the UK suggest as a reasonable compromise, from its side? I haven’t suggested any more detailed text for a customs cooperation treaty, or a technical plan to ensure remote control of the border, because I can’t. I am not a specialist on customs law or customs operations. Indeed, I suspect that most of those saying that such a plan would be incredibly simple – or simply incredible – are not specialists in those fields either. The difference is that I am prepared to admit it.
So this is, quite literally, the most I can do to suggest constructive solutions to the border problem which other people have created. And what have those other people done? First they said there was no problem. Then they said it was the fault of the Commission. Or Remainers. Or the Good Friday Agreement. Or Ireland. Or the UK government.
It’s never them; for the people who actually want Brexit rarely accept that they have any responsibility for it. In the decades they fumed about the UK’s EU membership, in the nine months before the Article 50 notice was sent, and in the year since, all they’ve come up with is a study for the European Parliament, a 14-page government paper, and some blogposts. Now they need either: a) to engage with the criticism of their plans and amend them to find a workable way forward; or b) to accept the fallback solution, and to negotiate a reasonable variation on the Commission’s excessive suggestions; or c) to admit they lied through their teeth and contemplate whether they still have a mandate.
In short, it’s time they either put a text out – or shut the feck up.🔷
Barnard & Peers: chapter 27.
(This piece was first published on EU Law Analysis.)