In our post entitled Brexit and the Irish border issue dated 9 February 2018, we wrote:
The Issue of Brexit and the Irish border – how to avoid creating some form of border within the island of Ireland – has emerged as one of the most difficult in the entire Brexit negotiation.
Three and a half years further on, Brexit has been “done” to the extent that the United Kingdom agreed a bilateral Trade and Cooperation Agreement (TCA) with the European Union at the last moment at the end of 2020. But the Irish border question still dwarfs and exacerbates all other issues between the parties. Now however dispute arises from practical issues of interpretation and implementation rather than from the grand debates of constitutional principle that first generated the Brexit process.
UK and Irish politicians, with the Irish backed up by the 26 other EU member states, are acutely responsive to the many difficulties and challenges posed by Anglo-Irish history, and to the great political and social sensitivities which obtain throughout the island of Ireland. At the same time, the frontier between Northern Ireland and the Irish Republic is the UK’s only land border with an EU member, and that causes special problems.
In five years since the UK’s referendum vote to leave the EU the fundamentals have not changed. On the British side, the successive Conservative governments of Theresa May and Boris Johnson have bowed to the strident demands of Brexit supporters that Brexit be seen as an issue of basic national sovereignty, with the UK reclaiming absolute independence and freedom of action in both domestic policy and international relations. Politicians still insist that under no circumstances would London accept jurisdiction of “Brussels”, meaning in practice the Court of Justice of the European Union (ECJ). This has meant that successive governments ruled out continued membership of any form of customs union with the EU, and also (after Theresa May had failed to get this through Parliament) any continuing participation in the EU Internal Market.
In fact, absolute sovereignty is a mirage. British politicians have conveniently overlooked the extent to which UK national sovereignty is limited by the provisions of dozens of international agreements which the country has signed, from the United Nations downwards. The TCA itself provides extensively for shared jurisdiction, with establishment of a Joint Committee to oversee implementation of the Agreement, and numerous technical subcommittees.
The EU and the Republic of Ireland for their part insisted that the Republic must remain a full member of the EU in all respects. In the tortuous negotiations that culminated in the Withdrawal Agreement which was agreed on 17 October 2019 and implemented on 1 February 2020, the UK and the EU each agreed to respect fully the position of the other, including the constitutional and legal requirements by which the partners respectively would be bound.
No land border
Most importantly, in a report by negotiators issued in December 2017 all parties reiterated their total commitment to protecting the “Good Friday” peace agreement of 10 April 1998 “in all its parts”. Any return to a land border across the island of Ireland was (and continues to be) absolutely ruled out as potentially reviving, in the worst case scenario, the paraphernalia of past hostilities including frontier posts, road blocks, watchtowers and searchlights. The “common travel area” between the UK and the Republic of Ireland is maintained in force, in principle meaning continued freedom of movement for British and Irish citizens between the UK and the Republic.
These respective positions of principle, even where the UK and the EU share the same basic aims, raise serious practical issues. Northern Ireland is recognised simultaneously as an integral part of the United Kingdom, and as part of the EU Internal Market. The UK’s stated intention of maintaining the freedom to go its own way on product, health and other standards immediately gives rise to problems. EU governments and institutions suspect that if the UK were to deviate from EU standards in the interests of devising and implementing its own, Northern Ireland could become a channel for non-EU-compliant goods to leak from Britain into the Union. UK politicians for their part suspect that the EU could use the dual status of Northern Ireland as a means to subvert the economic integrity and independence of the United Kingdom.
Brexit means that there has to be a border somewhere
Borders mean checks, in this case on trade in both directions between Northern Ireland and the Republic. The British Government rules out as incompatible with the integrity of the United Kingdom practical measures which could avert the need for such a border, like a bilaterally agreed separate regime for Northern Ireland based on specific measures of regulatory convergence with the Republic (and hence, inevitably, with the remainder of the EU). Unionists in Northern Ireland vehemently reject any such idea.
Since all sides rule out a land border, the only practicable course is a system of checks on consignments and documentation of goods passing between mainland Britain, the Province and potentially the Republic. This has formally been put in place and in principle would meet the EU’s requirement that goods entering the island of Ireland from Britain and which may be shipped on into the EU must comply with EU standards. But in the eyes of Unionists it would constitute discrimination within the UK against the Province, and figuratively speaking, amount to a border down the Irish Sea. Unionist politicians in Northern Ireland reject any idea of treating Northern Ireland differently from the rest of the UK because that would be a breach of UK unity and sovereignty. Their underlying fear is that such an arrangement could be the first step towards an eventual reunification of Ireland, which they vehemently oppose.
Whether politicians in Belfast and London like it or not, the Irish Sea border already exists. Under the terms of the TCA, goods passing from the UK into Northern Ireland have to be subjected to checks on whether they are intended for eventual sale into the Republic, in which case the appropriate tariff or other trade controls would have to be applied. This system is in place but not yet working smoothly. For example, it has given rise to an acrimonious dispute over checking the health status of sausages exported from the UK to Northern Ireland but which may not comply with EU standards and might not be acceptable if traded onwards into the EU. The trade concerned has been paralysed. The resulting stand-off has been wittily dubbed “sausage wars”, but it is a serious matter. Application of the same procedures to trade in other classes of goods has already led to reported shortages of some products in Northern Irish shops as wholesalers and transport firms fight shy of risking new obstacles and delays to their trade.
Border problems were foreseeable
So how did the UK negotiators with the EU come to land the whole of Ireland in this mess? The implications of Brexit for intra-Irish trade were recognised even before launch of the UK’s withdrawal negotiations, not least in a powerful speech given in London by the former Irish President, Mary McAleese, the week before the UK referendum in 2016. At subsequent stages of formal negotiation these issues were solemnly recognised, only to be kicked further down the road each time.
Good try, but…….
In a brave but complicated attempt to solve the border problems, Theresa May made a proposal for a “backstop” arrangement (discussed in detail in our post A “backstop” solution for the Irish border problem? of 13 June 2018). This would have been implemented if no agreement on Ireland had been reached by the expiry of the UK/EU Brexit “implementation period” at end-2020. As originally proposed, the backstop would have taken the form of a temporary arrangement keeping Northern Ireland subject to EU Internal Market rules for a further agreed time after the formal end of the implementation period, until Ireland was sorted out.
In recognition of the Democratic Unionist Party’s (DUP) refusal to contemplate any apparently discriminatory treatment of Northern Ireland, the Government’s proposal was extended to cover the UK as a whole. The UK would continue for whatever further period was agreed to trade with the remaining 27 EU member states (the EU27) free of tariffs and other trade procedures. It would however be outside the EU’s Common Commercial Policy and therefore able to negotiate with third countries for free trade agreements that did not conflict with the temporary customs arrangement.
Given sufficient negotiating goodwill the backstop solution might have worked, but Mrs. May could not get it through Parliament and it was abandoned.
A literally insoluble problem
In the event, the Withdrawal Agreement between the UK and EU signed in late 2019 included a protocol that largely repackaged the main elements of the backstop solution, but without committing the UK to potentially remaining within the EU customs union indefinitely. Specifically, the protocol dealing with Northern Ireland stated that Northern Ireland remained in the UK’s customs territory while continuing to apply the EU’s customs legislation and some of the Single Market rules for goods.
In practice, this left open the way in which these principles would be applied. The publication by the UK Government in 2020 of its “Command Paper on Northern Ireland” highlighted the extent of differences between the UK and EU in their respective understandings of how to give effect to the protocol.
The stand-off between the various parties continued right to the end of 2020, with the British Government and the DUP refusing to contemplate any infringement of UK sovereignty as they saw it. The EU and the Irish Republic insisted on Ireland’s integration into the EU. Both sides refuse to contemplate any form of land border on the island of Ireland, and the EU side continues to express concern at Northern Ireland’s possibly being used to subvert the integrity of Internal Market regulation.
Cutting the knot
This was a problem with no viable solution, largely because at the outset UK Ministers had laid down a number of basic and conflicting “red lines” which could not all be met at the same time. On Christmas Eve 2020, up against the absolute deadline for negotiation of the TCA and with “No deal” looming as a very real danger, Prime Minister Boris Johnson cut the Gordian knot. He overruled both the objections of the DUP to an Irish Sea border and the strident demands of the UK fisheries sector for enhanced protection, and settled for the extensive but still partial TCA which remained on the table at that stage.
The shoe pinches
It has taken only a very few months into 2021 for the practical consequences of Brexit for both Northern Ireland and the Republic to begin to sink in, with reports of consignments of goods traded from Great Britain into Northern Ireland and potentially onwards to the Republic hampered by new and complex documentation requirements, and with gaps on supermarket shelves in the Province as transport firms shy away from the procedural complexities of Anglo-Irish trade.
What price international agreements?
In the face of this confusion the UK Government now demands that the Irish border elements of the TCA – an international treaty – be renegotiated. Specific proposals are yet to be developed, but the main issues turn around processes for verifying compliance with standards and rules or origin in trade between the UK and Ireland Specifically, the UK would like the EU and Ireland to take a more relaxed attitude to these matters. The EU is unlikely to agree to that. First because of its long standing principle of insisting on the integrity of the single market in negotiations with non-EU members; and more specifically, because it considers that the UK should abide by a treaty which was so laboriously negotiated less than a year ago. Such negotiations from an EU perspective represented a considerable commitment of administrative and political resources for a matter not of its doing. And British negotiators regularly make matters worse by the stridency of their demands for concessions which ignore the legal and policy fundamentals of the EU
Dialogue of the deaf
British politicians on the whole have never understood the true nature of the European Union, even despite half a century of membership. The EU is not a sovereign entity with the ability on the basis of quick footwork to cut deals and strike pragmatic compromises, which is what the UK Government now demands that it should do. It is a contract-based structure which rests firstly on international law expressed in a complex of international treaties, and secondly on an increasing body of its own internal law generated under powers conferred by the various treaties. The member states retain their own national sovereignty, although during the course of more than 60 years such sovereignty has been extensively pooled under the provisions of the treaties and by internal regulations made under treaty-derived powers. The Irish question is particularly complex as it represents the confluence of dealings with a non-member state, the interests of a member state, and the uniform application of EU law.
Viewed in this light, the TCA not only represents a careful balance struck between the UK and the EU. It also represents a careful balance between the interests and demands of all the member states in the face of Brexit. The EU could not renegotiate selected parts of the TCA without effectively reopening the whole Agreement through its own policymaking and negotiation procedures. Nobody in the EU27 has the stomach for that at this stage, and until the British Government understands this the current tensions will continue with the possibility that this could escalate into the punitive measures contemplated in the agreement. The EU however has expressed willingness, within strict adherence to the relevant terms of the TCA, to contemplate practical and flexible solutions to the problem of checks on goods traded between Great Britain, Northern Ireland and the Republic. It awaits proposals from the UK side.
The eyes of the world
The essential case for Brexit rested on British determination to recover full national sovereignty and to make new international agreements, initially on trade but no doubt extending later to other areas of policy and administration. Potential partners, especially those currently engaged in negotiations with the UK, will doubtless be watching closely the current stand-off with the EU and Britain’s willingness to repudiate an agreement so recently struck. The main value of trade agreements, especially in services (which represent 80% of UK GDP) is that they are supposed to provide stability and predictability to trade regimes, and act as an assurance that there will be no dramatic policy reversals, Partner countries will seek firm assurances in any new agreements they may make that the UK side will be a reliable partner and abide in the long term by commitments which it assumes in international treaties. At the moment that confidence appears to be sadly lacking.