Professor Dagmar Schiek, Queen’s University Belfast
On 16 August the UK government’s Department
for Exiting the EU (DEXEU) posted its long awaited position
paper on the position of Northern Ireland and Ireland after Brexit. The
government itself states that the paper needs to be considered in combination
with the “Future
Partnership Paper” on Custom’s arrangements, while no mention is made of EU
citizens’ rights, which – alongside the situation of Northern Ireland and
Ireland and the UK’s financial obligations - also are a priority under the EU’s strategy to
negotiate the withdrawal agreement. For a first appreciation of this
position paper it is worthwhile highlighting what they do not address.
Its first part addresses the
Belfast Peace Agreement, concluded on Good Friday 1998, with three very
specific negotiation proposals: EU support for the peace process should be
maintained, citizenship rights set out in the Belfast agreement should be
maintained, and EU financial aid for the Peace process should be maintained. Two
of these issues are at best loosely related to the UK’s withdrawal from the EU.
The EU is engaged in numerous peace processes beyond its borders, and there is
no reason why it should stop engaging in the Northern Irish peace process. The
question whether Ireland grants citizenship to persons born in Northern Ireland
is not even within the EU competences: the Treaty on European Union does not
determine who Member States may recognise as citizens. These proposals do not
mention the EU citizenship dimension at all, as they remain purely on the
national level. One wonders why the continuation of EU funding for the peace
process in Northern Ireland is not included in the negotiations on the UK’s
financial liabilities: if the UK does not wish to continue paying in the EU
budget, a division of responsibilities on the funding for this budget would
seem more logical –if only to avoid the impression that the bill may be
addressed to the EU alone.
What is missing here? Interestingly,
the negotiation position only mentions the Belfast Agreement. This was only the
first step in a longer process overcoming conflict in Northern Ireland, aiming
at an all-Ireland economy and society (North South Dimension) as well as
integration across the British Islands (East West Dimension). The success of
such a process requires socio-economic and civic integration, alongside
political institutional cooperation. Among the agreements complementing the
Belfast agreement the Stormont House Agreement adds some of those aspects, for
example by stressing the need to overcome discrimination on grounds of
ethno-religious allegiances in the provision of goods and services, housing and
other areas.
However, the socio-economic and
civil society dimension of integration mainly rests on the common EU membership
of Ireland and the UK, which enabled socio-economic
and civic transaction without frictions on the island of Ireland as well as
with Britain. EU law, directly applicable in both states, and enforced by
national courts and the ECJ, guarantees among others free trade in goods and
services, the freedom of business to establish and the free movement of workers
as well as EU citizenship rights for non-economically active persons. EU
legislation ensures regulatory harmonisation necessary for the smooth operation
of this. Both have been central to achieving a degree of normalisation
accompanying the peace process, one expression of which is that citizens from
other EU Member States have made the island of Ireland their home, as well as
coming here to live, work or study for limited periods. The economy relies on EU
workers from beyond the UK or Ireland, as well as on service provision from
other parts of the EU. Does the position paper address these conundrums?
Its second part (paragraphs
18-33) is focused on the Common Travel Area (CTA), correctly stating that this
is a form of cooperation for the benefit of UK and Irish citizens, allowing
them the right to enter, reside, work and study in each other’s’ state, while
also accessing some social welfare entitlements and health services. The CTA
also includes specific measures for securing its external borders, and it lacks
any one document setting out all the principles and details, including
enforcement mechanisms. The UK negotiation position focuses on the preservation
of rights to move by Irish and UK citizens. However, the UK government states
that border and immigration controls for EEA nationals can only be addressed as
part of the future relationship with the EU, while stressing that immigration
controls are not restricted to border controls, but can also be operated as
controls of access to labour market and social security at other points.
The 3rd part of the paper (paragraphs
34-57) addresses the customs border. Again, the UK government proposes to omit
implementing border posts, and to conduct all necessary controls of customs,
compliance with agricultural product codes (sanitary and phytosanitary
measures) through other controls. It assumes its
separate proposals on customs are sufficient to control the movement of
goods. These proposals have been criticised for lack of practicability
elsewhere already: they either refuse any practical control of what will be a
customs border, or shift the burden of those controls onto business, who will
need to ensure compliance with EU standards by robust mechanisms which do not
come for free.
Again, what is missing in part 2
and 3? The paper acknowledges that it does not touch the service sector, and
relegates this aspect to the deep and special future partnership (paragraph 35)
to be negotiated after the withdrawal agreement has been concluded. Further, both
sections are pre-occupied with borders, the land border between the UK and
Ireland, which meanders at a length of more than 300 miles through the island
of Ireland, as well as the sea border between Britain and the island of
Ireland. Given the traumatic experiences of border communities during the
“troubles”, this pre-occupation is understandable. However, maintaining the
degree of normality achieved in Northern Ireland and on the island of Ireland
as a whole would require a different focus, a focus on cooperation and integration
in socio-economic and civic respects. Any commitment to achieve this still has
to be formulated.
As regards persons, the UK
government has not (yet) committed to maintaining the pre-conditions for free
movement of persons (including those who are not UK or Irish citizens born in
Northern Ireland or Ireland), and thus to the preservation of an important
element of an all-island integration. It envisages post-border controls being maintained,
possibly modelled on the UK’s 2016 Immigration Act, which makes employers,
landlords, universities and schools (criminally) liable for maintaining
restrictions of immigrants on participation in socio-economic life. This
replacement of controls at borders by civic controls is meant to disrupt
socio-economic integration.
As regards the borders for
products, the UK stresses that the final shape of the customs border depends on
the future customs relationship. Thus, solutions for problems for Northern
Ireland and Ireland caused by Brexit is postponed to a later stage in the
negotiations, after the conclusion of the withdrawal agreement. An exception is
made for energy products, as maintaining the common energy market is viewed as
pivotal. Not even a membership of Northern Ireland
in the EEA (which would not address the customs border) has been
considered.
Clearly, this is a first draft
for the points in the withdrawal agreement that need to be addressed to avoid
disproportionate damage to Ireland and Northern Ireland in the withdrawal
process. If (as at least one political party supporting the Westminster
government has stated in their election programme), the free movement of goods,
services and persons should be maintained on the island of Ireland, a more
committed position seems necessary. Since the EU Commission and the EU 27 are
dedicated to achieving a solution for the rights of EU citizens as well as for
the problems of Ireland and Northern Ireland, there is hope that more
constructive solutions are yet achieved.
Barnard & Peers: chapter 27
Photo credit: Business Insider
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