Background

Common membership of the European Union facilitates easy and frictionless trade between Ireland and Northern Ireland and Ireland and Great Britain. For most practical purposes, goods and services can be bought and sold between EU states, as if the buyer and seller were in a single country.

The European Union effectively acts as a virtual federal government, with common rules in almost all areas relevant to trade in goods and services. These common rules are policed by the EU Commission and are enforceable in any court in Europe. All courts are obliged to set aside inconsistent national rules.

The Common Travel Area arrangement evolved after Irish separation from the United Kingdom. Effectively, the UK and Irish citizens enjoy important rights in the other’s jurisdiction, including free movement, the right work and do business as well as immediate settled status on arrival.

Ireland and the UK joined the European Economic Community together in 1973. The development of the single market project from 1986 to 1992, led finally to the removal of the remaining customs processes and the advent of the single market in 1993. With the paramilitary ceasefires the following year and the eventual ending of the “troubles”, the immigration, trade and security borders opened. The facilitated the blossoming of an all-island economy during the period of unprecedented growth from 1995 onwards.

The Good Friday Agreement and the EU

The potential for the European Union membership to resolve the Northern Ireland conflict was well understood. The Sunningdale Agreement was entered in December 1973 between the British and Irish government and parties in the designate Northern Ireland executive. It provided that a Council of Ireland would be set up with representatives of the two parts of Ireland. It would be for the Oireachtas and the Northern Ireland Assembly to legislate from time to time as to the extent of functions to be devolved to the Council of Ireland.

The Belfast (Good Friday) Agreement 1998 created a new settlement for Northern Ireland based on equality of esteem, free choice of identity with power-sharing institutions including a Northern Ireland Assembly, a North-South Ministerial Council, North-South bodies and a British Irish Council.Following the model of EU institutions, there is provision for cooperation between the Irish government and the Northern Ireland Executive in a number of areas within the competence of the Northern Ireland Assembly including agriculture, education, transport, environment, tourism, inland fisheries, health urban, rural development and administration of certain EU programmes promoting regional and border area development.

These modest areas of cross-border cooperation were symbolic from a nationalist perspective in comprising all Ireland institutions while being sufficiently low-level from the Unionist perspective, so as not to represent a significant dilution of sovereignty. Most decisions on the Northern Ireland side require cross-community support and decisions of the North-South Council require the agreement of both Northern Ireland Executive and the Irish government.

The common European union structure has facilitated a blossoming of North-South trade since the removal of the remaining customs processes and the advent of the single market in 1993.

The Belfast (Good Friday) Agreement assumed the continued common membership of the European Union by Ireland and the United Kingdom. The rules on trade are determined through and by the European Union institutions and apply equally to Northern Ireland and Ireland. The Agreement may not have been possible and would probably have been in different terms, but for common membership of the European Union.

Versions of a Soft Brexit

The EU has consistently, in the interests of its own survival, ruled out the possibility of “cherry- picking” the benefits of EU membership, while rejecting the more onerous elements. Any other course would risk the disintegration of the European Union, as other states eventually sought to remake their relationship with the EU on their own terms. It has offered the UK a menu of relationships which conform to existing models.

In the aftermath of the EU Referendum, a so-called soft Brexit with the UK continuing in, or in close alignment with the EU customs union and single market, looked likely in view of the closeness of the vote and the questionable benefits in sacrificing free access to EU markets for the dubious advantages of an independent trade policy outside the European Union. This might have been criticised as a Brexit “in name only” but might have achieved sufficient broad consensus.

The European Economic Area has been called European Union membership for countries who can’t get it past their electorates. Norway has single market membership, without membership of the customs union and common agricultural policy, which was unacceptable to the Norwegian electorate. Equally, a bespoke arrangement exists for Switzerland.

Ukraine and neighbouring states have entered a Deep and Comprehensive Trade Agreements with the EU. For geopolitical reasons involving Russia, the prospect of EU membership is unrealistic, and the prospect of membership set in motion a series of events leading to the annexation of Crimea and the insurgency in parts of eastern Ukraine.

Mrs May’s so-called “red lines”, ruled out a customs union and single market membership and the jurisdiction of the EU Court of Justice. This limited the possibilities for the UK relationship severely. The logic of the EU’s position was that in such circumstances, the UK would have the same relationship as a country with which the EU had a deep and comprehensive trade agreement, offering the recent templates of those with Canada, Korea and Japan.

Just Inside and Just Outside the EU

As has been pointed out by Sir Ivan Rogers, the UK’s former ambassador to the UK, a relationship with the EU under a free-trade agreement is in no way equivalent to EU membership or the customs union and single market membership. Although a deep and comprehensive free-trade agreement sounds like a close relationship, it is fundamentally different from membership or even associate membership of the EU. Being just outside the EU is not close to being just inside it.

A Deep and Comprehensive Free Trade Agreement would be likely to have zero customs duties on almost all non-agricultural products. However, this would not avoid the requirement for import and export declarations on every movement of goods in and out of Ireland to the UK and vice versa. It would be likely to involve different treatment of agriculture and food, with the most profound consequences for Irish agriculture even in an eventual soft Brexit.

The UK would like the EU to recognise its regulations as equivalent, but this is most unlikely. There may be recognition of standard-setting bodies, which may mitigate the position to some extent, but in the absence of membership of the customs union, the single market enforced by  overarching EU institutions with EU law having the force of law in the United Kingdom, there is unlikely to be any automatic recognition of EU product standards

The result of the above position is that any form of Brexit short of something so close that it is Brexit name only will create significant new trade barriers between Ireland and Northern Ireland and Ireland and Great Britain. The mechanism by which Brexit is likely to reduce and eliminate much cross-border trade is dealt with in another article. The full extent of the barriers that would soon arise and the profound change in the terms of much trade is not widely understood.

The so-called Common Market 2.0 proposal implies reversion to the mid-1990s position with customs union and single market membership. It might facilitate trade to a significant extent. However, it would leave the UK subject to free movement jurisdiction of the European Court of Justice with no formal input into rulemaking.

The Border and The Future Relationship

At the heart of the hard border question are differences in understanding of what is meant by a hard border. This ambiguity is embodied in the somewhat different definitions of what is required to meet the test under the UK Withdrawal legislation and in the unapproved EU UK Withdrawal Agreement.

The UK European Union (Withdrawal) Act 2018 provides that in exercising powers under the Act, the UK is not to act in a way that is incompatible with the terms of the Northern Ireland Act 1998, to diminish any form of North-South cooperation or to create or facilitate arrangements between Northern Ireland and the Republic of Ireland after exit day, which feature physical infrastructure including border posts or checks and controls that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.

The Joint Declaration of the EU and UK in December 2017 declared that the UK remained committed to avoiding a hard border on the island of Ireland, including any physical infrastructure or related checks and controls. This objective is to be achieved through the future EU-UK relationship. However, should this prove impossible, the UK would propose specific solutions for Northern Ireland, and, failing agreement on this, committed to ‘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 Withdrawal Agreement agreed between the EU institutions and UK government but not ratified by the UK Parliament provides for the so-called “backstop” by which in effect Northern Ireland remains in the EU customs union and in the single market for goods, and Great Britain remains in a customs union with European Union and pledges to maintain regulatory alignment with it.

The Joint Report outlined three different scenarios for protecting North-South cooperation and avoiding a hard border. The Protocol is based on the third scenario of maintaining full alignment with those rules of the Union’s 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, which are to apply unless and until an alternative arrangement implementing another scenario is agreed

The effective test for what constitutes a hard border under the Withdrawal Agreement is similar to but broader than that the UK withdrawal legislation. As with other EU law instruments, there are extensive recitals which seek to frame the context of the backstop provisions.

The Withdrawal Agreement Context

The recitals to the Withdrawal agreement set the interpretative context of the substantive provisions of the backstop. They are not the operative part of the agreement, but they may assist in the interpretation of the operative parts.

The Withdrawal Agreement recites

  • that the United Kingdom’s withdrawal from the Union presents a significant and unique challenge to the island of Ireland,
  • that it is necessary to address the unique circumstances on the island of Ireland through a unique solution in order to ensure the orderly withdrawal of the United Kingdom from the Union,
  • that the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom,
  • the Union’s and the United Kingdom’s intention to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing;
  • that it is the UK and Eu’s common objective that there will be a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this Protocol, in full respect of their respective legal orders,
  • that the Good Friday or Belfast Agreement should be protected in all its parts,
  • that cooperation between Northern Ireland and 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, and recalling the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including cross-community provisions), as set out in the 1998 Agreement,
  • that Union law has provided a supporting framework to the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement,
  • that Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship
  • the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements,
  • nothing in the Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market,
  • the parties’ shared aim of avoiding, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as their implementation, controls at the ports and airports of Northern Ireland,
  • that he transitions period may be extended by mutual consent,
  • that 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,
  • that therefore the United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation,
  • that 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,
  • the need for the Protocol to be implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement,
  • the EU and the UK’s commitments to the North-South PEACE and INTERREG funding programmes under the current multi-annual financial framework and to the maintaining of the current funding proportions for the future programme,
  • the commitment of the United Kingdom to facilitate the efficient and timely transit through its territory of goods moving from Ireland to another Member State or another third country, or vice versa,
  • the application of this Protocol should impact as little as possible on the everyday life of communities both in Ireland and Northern Ireland,
  • that the rights and obligations of Ireland under the rules of the Union’s internal market and customs union must be fully respected,

Exiting the Backstop

The protocol states that it sets out arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 (Good Friday) Agreement in all its dimensions. It confirms that the objective is not to establish a permanent relationship and that protocol is intended to apply temporarily, only.

The protocol contemplates that it may be superseded in whole or in part, implying that elements, including the Northern Ireland only elements, may endure. The protocol acknowledges the UK’s internal market and confirms that is not to affect access to the UK market for Northern Ireland goods and generally, that the lawfulness of placing goods on the market in Northern Ireland is governed by UK law, and by EU law as regards goods imported from the EU.

The UK and the EU agree to use their best endeavours to conclude replacement provisions by the end of the transitional period. It is provided that if any time after the end of the transition period, the  EU or UK considers the protocol is in whole or in part no longer necessary to achieve the above objects and should cease to apply, it may notify the other party, setting out its reasons.

There is a process for reference to a joint committee. The committee may seek an opinion from the institutions created under the Belfast Agreement. Ultimately, the EU and UKmacting through the Committee may agree that the protocol, in whole or in part, is no longer necessary to achieve its objectives, that it shall cease to apply, in whole or in part.

The Joint Committee shall address recommendations on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement. The objectives concerned are addressing the unique circumstances on the island of Ireland the maintenance of the necessary conditions for continued North-South cooperation avoiding a hard border and protecting the 1998 agreement in all its dimensions. If this is the case the EU and UK must agree new substituted arrangements.

It seems clear that if the UK was to remove the Great Britain specific parts involving a customs union and regulatory alignment with the EU, but leave Northern Ireland in the backstop as it stands, that the test would be satisfied. Even if the backstop is superceded, it may be replaced as regards Northern Ireland, by something very similar to the backstop

The Test for Exiting

Although the provisions referring to the all-island economy are recited in the Withdrawal Agreement the actual test for removal of the Withdrawal Agreement and substitution with alternative arrangement is that they

  • are sufficient to address the unique circumstances on the island of Ireland
  • maintain the necessary conditions for North-South cooperation
  • avoid a hard border and
  • protect 1998 agreement in all its dimensions.

The objection on the part of the UK is that the backstop effectively gives a veto in relation to the UK exiting it, to the EU (and arguably to each member state). While there are other clauses which indicate that the arrangement is not intended as permanent, the concern is that it might effectively become permanent, by reason of requiring the consent of the EU to its removal. In all likelihood, the arrangements would comprise a mixed agreement which will effectively require the consent of all member states by way of ratification.

It is argued that the EU might never agree that any alternative solution is as good as the backstop, notwithstanding the wording that the backstop is to be temporary.

On the other hand, it has been pointed out in the context of the attempts to pass the Withdrawal Agreement, that the backstop would not be a comfortable place for the EU. In effect, the UK be a customs union with regulatory alignment and access to the EU market in goods without making contributions to the EU budget.

What Would Satisfy the NI Backstop Test?

The scope of what might be required to maintain the unique circumstances on the island of Ireland, continued North-South cooperation and the protection of the Good Friday Agreement in all its dimensions, is unclear and highly debatable. The UK may argue  it means little more than the absence of controls at the border together with the minimum additional arrangements for continued North-South cooperation in the relatively narrow areas set out in the Good Friday agreement.

The Good Friday agreement did not deal with the critical issues of trade, customs policy and regulatory standards. The matters did not require consideration as these were largely subject to the common EU institution provisions. Had they not been EU functions, they would most likely have been principally UK functions, outside the scope of Northern Ireland devolution and North-South cooperation.

Notwithstanding the references to the all-island economy in the recitals to the backstop protocol, it may be difficult to argue that they are sufficient to take precedence over the sovereignty of the United Kingdom in Northern Ireland in relation to trade and customs matters. They are not part of the substantive test, they scope of which is unclear, but is informed by the recited context.

The Withdrawal Agreement acknowledges that the backstop may be replaced by alternative arrangements. It does not proceed on the basis that he all-island economy requires there to be a customs union and single market between the EU and Northern Ireland, but on the basis that this is to the way required to meet the substantive tests at present.  The Withdrawal Agreement and interpretative statements acknowledge that it is not to be permanent.

No Hard Border

In this context and divorced from what might be required by the other aspects of the test, in particular those dealing with broader all Ireland cooperation structures, the requirement that there be no hard border, refers to the absence of physical infrastructure at or near the border.

The UK has committed to having no physical infrastructure at or near the border, although it is unclear how realistic this proposal will prove to be in the longer term. WTO requirements and basic policing of revenue standards and other requirements may make some element checking at or near the border inevitable

The European Union as indicated that it requires the EU single market to be protected. The Irish government has acknowledged as of mid-September 2019 that some arrangements must be put in place in the event of a hard Brexit to protect the single market. It appears that it may involve some element of verification and checks, which may be undertaken near but away from the border.

The WTO requirement of nondiscrimination as regards third countries has a number of exceptions on which it would be necessary to rely to excuse the absence of physical checks and policing at the border. Given the troubled history of the border, it  may be possible to invoke a security exception in the WTO agreement to justify the absence of checks at the border in this particular case.

The bigger question is how a customs regime and differential product standards can be satisfactorily policed  without checking and verification at the point in time at which goods dross from one jurisdiction to the other. Most custom systems require some element of random or suspicion based intervention, to verify that what is declared in the paperwork is in fact what is moving across the border.  There would be problems with policing cases where no paperwork had been filed in the absence of some checking at near the border.

Alternative Arrangements Commission

The alternative arrangements proposed by the so-called Alternative Arrangements “Commission” proposes measures to prevent checks at or near the border. Effectively they seek to use the EU transit procedure as a model for most cross-border movements. Under this, traders who are authorised consignor or authorised consignees (or their agents) may carry goods intact across borders under guarantees.

The procedures are still highly disruptive of trade. The checks, by way of policing of the Customs code and other rules which are normally undertaken at the border by a  physical check are proposed to be undertaken away from the border. However, it does not obviate the fact that burdensome processes are involved.

It is likely to be required that every movement of goods across the border will require an export declaration to be given by an entity established on one side of the border and an import declaration given by an entity established on the other side of the border. A transit declaration and a guarantee are likely to be required by the trader or by its carrier.

These requirements may effectively limit or preclude many businesses continuing to trade directly with customers on economic terms. Unless the customer on the other side is willing to complete an import declaration,  the exporter may be required in many cases to have a branch or subsidiary in the other jurisdiction. This is not realistic in most cases and is likely to be destructive of trade.

Some method for tracking the point of crossing the border is required under the arrangements, such as reading a driver’s mobile phone or equivalent device The alternative arrangements proposal implicitly contemplates that non-declared movements could be policed by intervention at the border. Equally suspicious activity may justify intervention at the border.

Open Border plus What?

Some undefined degree of all-island institutions, cooperation and functions are required. While many of the single market areas are within the competence of the Northern Ireland Assembly and Institutions,  most of the trade policy and customs union type provisions would be UK powers in the absence of the EU.

Some aspects of North-South cooperation are in areas which are largely regulated at EU level. In agriculture, EU law defines almost the entire agricultural and food policy framework. The island of Ireland is already an epidemiological unit for animal health purposes.

Environmental law is largely prescribed by EU law.The Belfast Agreement contemplated cooperation in the areas of environmental protection pollution water quality and waste management.

The all island electricity arrangements are well-established and it might be expected that energy regulation and applicable EU structural arrangements and requirements for the energy market might continue to apply.

The Belfast Agreement contemplated the joint management of a number of new programs designed promote economic development in particular in border regions. The UK has committed to maintaining at least equivalent levels of programs and a joint administration would not appear to be controversial.

A number of other areas, such as all island tourism promotion, coordination of strategic transport planning, certain strategic health and health promotion functions, certain aspects of educational policy inland waterways and aquaculture, have some general level of EU background policies we could not be said to be regulated by the EU to any significant extent.

The Mapping Exercise

In the context of UK EU negotiations on the Withdrawal Agreement mapped out 156 areas of cooperation under the Belfast agreement. It also referred broader North-South cooperation which took place outside the formal structures of the North-South ministerial Council but which has developed in line with the principles laid out in the Belfast agreement rather than under it.

The list reflected a range of formal and informal cooperation that currently occurs in some cases which predates the Belfast agreement. There are varying levels of legal and policy links between North-South cooperation and EU policy and legal frameworks.

The mapping exercise acknowledged that an objective of the protocol is to maintain the necessary conditions for continued North-South cooperation. It acknowledged that the withdrawal legislation provided that it was to be exercised in a manner compatible with the Northern Ireland act giving effect to the Belfast agreement.

Cooperation and Alignment of Rules

Most areas of cooperation would not necessarily require identical rules. There are some areas where harmonised rules may be required such as in relation to some aspects of agriculture, animal health and food standards, environmental rules and the all island electricity market. In these cases a mechanism for giving effect to EU-based rules within Northern Ireland would be required.

North-South cooperation at present is based on the agreement of the Irish government and the Northern Ireland Executive which itself may require cross community support for the decision whether by reason of required measures in the Assembly or the mandatory cross community coalition in the Executive.

Where EU rules apply Ireland with have some input through informal prior consultation, the European Council and its European Parliament members. It might be objected that Northern Ireland may be required to give effect to these EU rules without any democratic input. However EEA states such as Norway are subject to this requirement at present. In practice   and in the same way as EEA states, the Northern Ireland administration may be consulted and have the opportunity for  input at the  initial stages of EU single market legislation concerned.

In those areas in which EU law is required to apply, it is likely that Northern Ireland courts would be required to the supply and the inconsistent domestic legislation and give effect to the relevant EU law, in the same way as with EEA states.

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