A Modest Proposal: Avoiding a Deadlock on the Irish border in the Brexit talks

Professor Steve Peers, University of Essex

There is an apparent risk that the negotiations on the Brexit withdrawal agreement could break down over forthcoming proposals to address the Irish border controls issue. It is unfortunate that the UK government has not tabled its own treaty text or more advanced proposals for customs facilitation away from the borders. And it is tragic that the British public is burdened, in the form of their current Foreign Secretary, with one of the most incompetent politicians in British history – unable to grasp the obvious differences between levying a congestion charge at the border of London boroughs and the vastly more complex task of avoiding border checks between the UK and Ireland.

Be that as it may, in advance of the Commission’s proposals due tomorrow, I have suggested (in Annex 1) a text on the Irish border issues for the withdrawal agreement, which reflects the joint report agreed in December (discussed here) as much as possible. For ease of reference, Annex 2 includes the relevant excerpt from the Joint Report.

I have reflected the text of the joint report as faithfully as possible, with the exception of one contradiction which I could not reconcile. Some parts of the joint report appeared to me to be political commitments, so I suggest that they appear as Joint Declarations or UK-only declarations which would be part of the Final Act of the withdrawal agreement (this is a common approach to treaty drafting).

On the key issue of “regulatory alignment”, my suggested text reflects that this is the third of three options, and so suggests deferring negotiation on the details until after Brexit day. This would also reflect the difficulty of negotiating the first or second option before Brexit day, and would reduce the risk of a collapse of the talks, which would jeopardise the two sides’ objectives on the border issue and the other issues at stake in the talks (the protection of EU27 and UK citizens’ rights, if they moved before Brexit day, and avoiding the economic impact of a WTO-only “no deal” outcome on both sides).

However, this suggestion to support the UK government’s argument to defer the “regulatory alignment” issues presupposes that in the meantime the UK government puts full effort into the first option, proposing a customs facilitation treaty that would avoid border checks and a plan to give it effect. This should include any additional provisions which may be necessary to keep the UK’s commitments to ensure North-South cooperation functions on the island of Ireland after Brexit.

If the UK government cannot do so then it should have the integrity to acknowledge that the promises on this issue made during the referendum campaign were false, rather than blame the EU or Ireland, or particularly Remain voters (whose concern about the possible complications was dismissed as “scaremongering”) for the consequences.

Note that the “1973 reset” canard that “the UK and Ireland never had controls before” ignores the fact that the two countries never previously diverged as to whether they were EEC/EU members or not. And 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.

I have proposed alternative wording, where relevant, to take account of the position of the current UK government, on the one hand, and of a potential Labour government (see my comments on Jeremy Corbyn’s speech yesterday) on the other.

Barnard & Peers: chapter 27

Photo credit: Forbes

Annex 1 – proposed text of withdrawal agreement and declarations

Article 1

The withdrawal of the United Kingdom from the European Union shall not prejudice the operation of the 1998 Good Friday or Belfast Agreement, including its subsequent implementation agreements and arrangements, and to the effective operation of each of the institutions and bodies established under them.

This gives effect to part of paragraph 43 of the Joint Report. Unlike the Joint Report, it does not refer only to the UK’s obligations.

Article 2

The United Kingdom and the European Union shall refrain from installing any physical infrastructure or related checks and controls at the border between Northern Ireland and the Republic of Ireland.

This gives effect to the “no hard borders” part of paragraph 43 of the Joint Report. Unlike the Joint Report, it does not refer only to the UK’s obligations.

Article 3

1. This Part is without prejudice to agreement on the future relationship between the European Union and the United Kingdom.

2. This Part is specific to the unique circumstances on the island of Ireland. 

This partly reflects paragraph 46 of the Joint Report. The paragraph goes on to say that the commitments “are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom”. However, this is inconsistent with the same paragraph saying that the commitments “will not pre-determine the outcome” of future talks; and it is questionable whether parties to a treaty can bind themselves as to what replacement arrangement they might agree in future. The provision on “unique” circumstances arguably points to a relaxation of the EU27’s “no cherry picking” rule.

Article 4

1. Following the expiry of the [transitional] [implementation] period, the obligation in Article 2 shall be ensured by a [customs cooperation] [customs union] agreement to be negotiated before that date between the United Kingdom and the European Union, which shall include any additional provisions necessary to ensure the absence of physical infrastructure or related checks and controls at the border and the protection of North-South cooperation on the island of Ireland.

This gives effect to the first option in paragraph 49: “The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship”. The first set of square brackets reflect the UK government and EU27’s different description of the period after Brexit Day. The second set of square brackets offers an alternative wording reflecting the current UK’s government’s position and a potential future Labour government position respectively. See also the proposed joint declaration 3.

2. In the event that the agreement referred to in paragraph 1 is not concluded, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland, and the parties will negotiate in good faith on that basis to ensure the absence of physical infrastructure or related checks and controls at the border and the protection of North-South cooperation on the island of Ireland.

Reflects the second option in paragraph 49.

3. In the absence of on agreement pursuant to paragraphs 1 or 2, 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 list of those rules shall be established by the Joint Committee within one year of the exit date.

The words in square brackets would be removed in the event of a Labour government. This reflects the third option in paragraph 49. It adds an obligation to agree on the list of relevant rules within one year of Brexit Day, by which point it should be clearer whether discussions on the first or second options lead to a possibility of agreement. The case for deferring this discussion until after Brexit Day is that: a) it is premature in the absence of discussions of the other options; and b) it increases the risk that no withdrawal agreement can be concluded, putting at risk the intention to avoid a hard border as well as all the other objectives of the agreement.  

4. Each party will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market [and the Customs Union].

Based on paragraph 51 of the Joint Report. The precise intention of that paragraph is not clear. The words in square brackets would be removed in the event of a Labour government.

Declarations

Joint Declarations

1. Both Parties respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent. This withdrawal agreement is fully consistent with these provisions. The United Kingdom continues to respect and support fully Northern Ireland's position as an integral part of the United Kingdom, consistent with the principle of consent. 

Based on paragraph 44 of the Joint Report.

2. Cooperation between Ireland and Northern Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland. In this regard, both Parties recall the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including its cross-community provisions) as set out in the 1998 Agreement.

Based on paragraph 47 of the Joint Report.

3. In order to give effect to Article 4(1), the parties agree to enter into formal negotiations as soon as possible after the exit date on the basis of the draft [customs cooperation] [customs union] agreement proposed by the United Kingdom.

This would give concrete effect to the first option in paragraph 49 of the Joint Report. It presupposes that the UK tables a draft treaty as soon as possible in 2018. The options in square brackets offer alternative wording reflecting the current UK’s government’s position and a potential future Labour government position respectively.

4. Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such.  The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. This Agreement respects, and is without prejudice, to the rights, opportunities and identity that come with European Union citizenship for such people.

Based on paragraph 52 of the Joint Report. That paragraph goes on to sate that “in the next phase of negotiations”, the parties “will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits”, but it is not clear what this refers to.

5. 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, in accordance with the relevant Protocols attached to the EU Treaties. 

Based on the first part of paragraph 54 of the Joint Report, with an additional reference to primary EU law.

6. In accordance with Part X [financial settlement], both Parties will honour their commitments to the PEACE and INTERREG funding programmes under the current multi-annual financial framework. Possibilities for future support will be examined favourably, in accordance with Part Y [[transitional] [implementation] period]. 

Based on the first part of paragraph 55 of the Joint Report, with cross-references to the other parts of the agreement added. It would be odd if the UK were not consulted on the proposal for a future peace programme during the transition or implementation period, given that it is likely to be tabled in spring 2018 but perhaps not formally adopted until after Brexit day.

UK Declarations

1. The United Kingdom respects Ireland's ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland's place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland's place within it, as the United Kingdom leaves the European Union's Internal Market and [Customs Union][enters into a Customs Union with the European Union].

Based on paragraph 45 of the Joint Report. The two alternatives in square brackets reflect the positions of the current UK government and a potential Labour government respectively.

2. The United Kingdom remains committed to protecting and supporting continued North-South and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South implementation bodies.

Based on paragraph 48 of the Joint Report.

3. In the event that Article 4(3) of this agreement becomes applicable, 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.

Based on paragraph 50 of the Joint Report.

4. The United Kingdom commits to ensuring that no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law. The United Kingdom commits to facilitating the related work of the institutions and bodies, established by the 1998 Agreement, in upholding human rights and equality standards.

Based on paragraph 53 of the Joint Report. There is an interesting question as to whether this was intended to become a binding obligation, in which case it should be reciprocated.

5 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.

Based on the second part of paragraph 54 of the Joint Report.

Annex II – joint report text

42. 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.

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.

44. Both Parties recognise the need to respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent. The commitments set out in this joint report are and must remain fully consistent with these provisions. The United Kingdom continues to respect and support fully Northern Ireland's position as an integral part of the United Kingdom, consistent with the principle of consent.  

45. The United Kingdom respects Ireland's ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland's place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland's place within it, as the United Kingdom leaves the European Union's Internal Market and Customs Union.

46. The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom 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 European Union and United Kingdom.

47. Cooperation between Ireland and Northern Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland. In this regard, both Parties recall the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including its cross-community provisions) as set out in the 1998 Agreement. The two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework. Therefore, the United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation.  

48. The United Kingdom remains committed to protecting and supporting continued North-South and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South implementation bodies.

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 allisland 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. 

51. Both Parties will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market and the Customs Union. 

52. Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such.  The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits.

53. The 1998 Agreement also includes important provisions on Rights, Safeguards and Equality of Opportunity for which EU law and practice has provided a supporting framework in Northern Ireland and across the island of Ireland. The United Kingdom commits to ensuring that no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law. The United Kingdom commits to facilitating the related work of the institutions and bodies, established by the 1998 Agreement, in upholding human rights and equality standards.

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.  

55. Both Parties will honour their commitments to the PEACE and INTERREG funding programmes under the current multi-annual financial framework. Possibilities for future support will be examined favourably. 

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.