TECHNICAL EXPLANATORY NOTE:

NORTH-SOUTH COOPERATION MAPPING EXERCISE

This technical note provides a UK commentary on the North-South cooperation mapping exercise carried out during Phase 1 of the negotiations on the UK’s withdrawal from the EU. The list of areas of cooperation attached at Annex A reflects discussions between the UK, EU and Ireland, but this explanatory note is a UK, rather than a jointly produced, document.

1. A series of detailed discussions took place between the United Kingdom (UK), supported by the Northern Ireland Civil Service, and the European Commission and Ireland in late 2017 in order to map current North-South cooperation between Northern Ireland and Ireland (the mapping exercise). The objective of the mapping exercise was to chart the range of formal and informal cooperation that currently exists between Northern Ireland and Ireland, noting the role of EU regulatory frameworks, where applicable, in its operation and development, with a view to maintaining North-South cooperation following the UK’s withdrawal from the EU. All areas of cooperation reflect policies or practical cooperation that has been supported on a cross-community basis in Northern Ireland.

2. The Government has been clear in its commitment to uphold the Belfast (Good Friday) Agreement (the Agreement) in all its parts throughout the process of the UK’s withdrawal from the EU. This includes formal North-South cooperation between the Northern Ireland Executive and Government of Ireland, which forms Strand Two of the well-established three-stranded approach set out in the Agreement.

3. The December Joint Report, which is referred to in Section 10(1) of the Withdrawal Act 2018 , recognised that North-South cooperation relies to a significant extent on a common European Union legal and policy framework. The United Kingdom reiterated a commitment 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.”

4. The UK and EU have delivered on our commitment to North-South cooperation in the legal text of the Protocol on Northern Ireland and Ireland. A core objective (Article 1(3)) of the Protocol is to “maintain the necessary conditions for continued North-South cooperation.” Article 13, on ‘Other areas of North-South cooperation’, requires the Protocol to be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as in the areas of energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.

In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must—
(a)act in a way that is compatible with the terms of the Northern Ireland Act 1998, and

(b)have due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union

5. Article 13 does not alter the remit or functions of the NSMC or the North-South Implementation bodies, nor does it alter Strand II of the Agreement in any way. The  Protocol acknowledges that, in full respect of Union law, the UK and Ireland may continue to make new arrangements that build on the provisions of the Agreement in other areas of North-South cooperation on the island of Ireland. In accordance with the position set out in the recitals, the functions and safeguards of the Assembly and the NSMC (including cross-community provisions) will be respected in full. This means that arrangements for North-South cooperation remain a matter for the Northern Ireland Executive and the Government of Ireland to determine. It is also important to note that Article 13 does not require any application of EU law in Northern Ireland. It is therefore exempt from the specific EU supervision and enforcement provisions set out for some elements of the Protocol. Cooperation will remain a matter for two sovereign jurisdictions on the island of Ireland to decide in accordance with their respective legal regimes.

6. The Joint Committee is tasked with keeping under constant review the extent to which  the implementation and application of this Protocol maintains the necessary conditions for North-South cooperation. There is no provision for the Joint Committee or Specialised Committee to decide on, or recommend, the expansion of those areas, nor to alter the functions, scope and remit of the North-South Ministerial Council or the North-South Implementation Bodies.

The Belfast Agreement

7. The Agreement – signed by the UK Government, Government of Ireland, and eight of the Northern Ireland political parties on 10 April 1998; endorsed by a treaty between the UK Government and the Government of Ireland signed on the same date; and endorsed in parallel referendums in Northern Ireland and Ireland – represents the bedrock of the peace process. In our Northern Ireland and Ireland position paper, published August 2017, the UK Government put upholding the Agreement in all its parts at the heart of our negotiations with the European Commission – reflecting the importance of the Agreement.

8. The Agreement is structured on the well-established three-stranded approach to relationships relating to Northern Ireland:
i. Strand 1 deals with the internal governance of Northern Ireland, including the arrangements for power-sharing within the Executive and the structure of the Northern Ireland devolved institutions – these are matters for UK Government and Northern Ireland parties; and
ii. Strand 2 deals with relations between Northern Ireland and Ireland (“North-South cooperation”), including arrangements for cross-border and all-island cooperation; and
iii. Strand 3 addresses East-West relations, reflecting the connections between the  UK and Ireland.

The Agreement provides for a British-Irish Council “to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands.” The Agreement also provides for a British-Irish Intergovernmental Conference to “promote bilateral cooperation at all level on all matters of mutual interest within the competence of both Governments”. The Agreement also states “there will be no derogation from the sovereignty of either Government.”

Strand Two: North-South cooperation

9. Strand 2 of the Agreement focused on cooperation between Northern Ireland and Ireland. It provided for the establishment of the North South Ministerial Council (NSMC), which brings together representatives from the Government of Ireland and the Northern Ireland Executive on matters of mutual interest within the respective competences of those administrations. The NSMC, which was established by treaty between the UK and Ireland , was required to agree at least six areas of  cooperation, where common approaches are agreed but implemented separately in each jurisdiction.

The six areas of cooperation that the NSMC has agreed are: agriculture; education; environment; health; tourism; and transport.

10. It also required the establishment of at least six cross-border implementation bodies. The bodies agreed by the NSMC and established by treaty between the UK and Ireland are: Waterways Ireland; the Food Safety Promotion Board; the Special EU Programmes Body;the North/South Language Body; the Trade and Business Development Body; and the Foyle,
Carlingford, and Irish Lights Commission.

11. The Agreement envisaged the possibility of further development of the NSMC arrangements. Any further development is subject to agreement by both sides within the NSMC – “any further development of these arrangements [is] to be by agreement in the Council and with the specific endorsement of the Northern Ireland Assembly and Oireachtas, subject to the extent of the competences and responsibility of the two Administrations”. Additionally,there are clear and unequivocal safeguards in the Northern Ireland Act 1998 to ensure cross-community representation of the Northern Ireland Ministers in the NSMC. Those safeguards are fully acknowledged in the Protocol.

12. Beyond this, as the UK Government set out in the Northern Ireland and Ireland position paper in August , since the Agreement other forums of collaboration have developed in line with the principles of North-South cooperation laid down in the agreement but in parallel to, rather than, under the auspices of, the NSMC. These include the joint hosting of sporting events and the creation of the Single Electricity Market.

13. North-South cooperation is important across all the formal areas, through the Implementation Bodies and in the other areas of cooperation. This cooperation has provided a clear benefits to the people of Northern Ireland. For example, in addition to the provisions of Strand 2, the section of the Agreement that dealt with policing and justice recommended independent reviews of policing and criminal justice that would look, among other things, at strengthening North-South cooperation on these issues. Following these reviews, international agreements between the UK Government and the Government of Ireland provided a framework for North-South cooperation on a range of issues, including the cross-border policing strategy, justice cooperation on public protection, support for victims, youth justice and criminal justice. Much of this cooperation currently benefits from a common EU environment and with EU measures underpinning much of the operational police cooperation, including in terms of combating the threats posed by terrorist groups, organised crime gangs, and cross-border illicit activity. Close and effective operational cooperation between PSNI and An Garda Síochána has been critical to tackling shared challenges and threats, and the relationship has led to excellent disruptive and criminal justice outcomes in both jurisdictions.

14. In the field of healthcare, the All Island Congenital Heart Disease Network facilitates collaboration between healthcare providers in both jurisdictions to ensure that vulnerable children receive treatment on the island of Ireland. The Network has a single surgical centre in Dublin and a specialist children’s cardiology centre in Belfast, supported by cardiology expertise in local hospitals and an all-island academic programme which is under development. The Network was established following an agreement between Northern Ireland and Ireland Health Ministers. A Framework Document outlines the model for the implementation and operation of the Network by a Network Board which is overseen by the two health departments. Cooperation is underpinned by a Service Level Agreement (SLA) between commissioner and provider organisations in Northern Ireland and Ireland. While the cooperation is underpinned by a SLA, there is also EU law linked to the operation of the All-island Congenital Heart Disease Network. For example, the directive on the recognition of professional qualifications provides the framework for recognising professional qualifications across Member States.

The mapping exercise

15. As outlined above, a series of detailed discussions took place between the UK, supported by
the Northern Ireland Civil Service, and the European Commission and Ireland in late 2017 in order to map current North-South cooperation between Northern Ireland and Ireland.
For the purposes of the mapping exercise, North-South cooperation was understood to refer to:
i. The six areas of cooperation agreed by the NSMC, which are currently: agriculture, environment, transport, health, tourism, and education. Common policies and approaches in these areas are agreed in the NSMC, but implemented separately in each jurisdiction, in line with Strand Two of the Agreement. Each of these areas has a number of subcategories that significantly contribute to the total areas of cooperation.
ii. The work and operation of the other six agreed areas of cooperation under the NSMC – Inland Waterways; Food Safety; Trade and Business Development; Special EU Programmes; Language; and Aquaculture and Marine matters – in which cooperation is taken forward by means of six North-South Implementation Bodies operating on an all-island basis in line with Strand II of the Agreement. The North-South implementation bodies are: The Foyle, Carlingford and Irish Lights
Commission (The Loughs Agency), Waterways Ireland, the Special EU Programmes Body, The Food Safety Promotion Board (safeFood), the Trade and Business Development Body (InterTradeIreland), and The North-South Language Body (The Ulster Scots Agency and Foras na Gaeilge).
iii. Broader North-South cooperation that takes place outside of the formal structures of the NSMC, which has developed in line with the principles of North-South cooperation laid down in the Agreement but in parallel to, rather than under the auspices of, the NSMC. This solely reflects agreed areas of current cooperation. These currently include energy; telecommunications and broadcasting; justice  and security; higher and further education; arts, culture and sport; and inland fisheries.

16. The full list of cooperation that was discussed (Annex A) includes areas of cooperation that come under all three of the categories set out above. The categories of cooperation included in the list are not exhaustive; they capture current cooperation as discussed when the mapping exercise took place in 2017. Further areas of informal, local and community level cooperation may not have been captured by this exercise. Additionally, it was fully recognised that cooperation must be seen in the context of the commitments made in the Agreement.

17. The list reflects the range of formal and informal cooperation that currently occurs between Northern Ireland and Ireland, and in some cases cooperation pre-dates the Agreement. The mapping exercise considered specific areas of cooperation identified by the EU and the UK in advance of the exercise but also included additional elements which were identified during the course of the discussions. The mapping exercise highlighted that there were varying different levels of legal and policy links between North-South cooperation and EU policy and legal frameworks. Broadly speaking, cooperation falls into areas not at all underpinned by EU policy and legal frameworks (for example, the all-island free travel scheme for senior citizens); partially underpinned by EU legal and policy frameworks (for example, the All Island Congenital Heart Disease Network, where although the Network is underpinned by a local Service Level Agreement, it relies on the continued supply of medicines and medical devices across the border); as well as areas directly underpinned by EU legal and policy frameworks (for example, Enterprise rail service from Belfast to Dublin). It is important to note that there are no commitments in Article 13 of the Protocol to align with EU law in relation to North-South cooperation.

18. Examination of all areas of cooperation in the mapping exercise was based on a factual analysis of the current position and, consequently, the exercise did not consider new or future areas of North-South cooperation. It was recognised that any development of new areas of cooperation would be a matter for the Northern Ireland Executive and Government of Ireland, in areas within their competence, as well as other forums of collaboration developed in line with the principles of North-South cooperation laid down in the Belfast Agreement.

19. There were a number of cross-cutting areas identified by the mapping exercise that impact North-South cooperation and will be affected by the UK’s exit from the EU. These include, but are not restricted to: data protection, including personal data, and information sharing; public procurement; state aid rules; health and safety and employment frameworks in relation to personnel issues in the implementation Bodies; access to EU funding; the provision of and access to services; the mutual recognition of professional qualifications; and the Common Travel Area.

Annex A: List of North-South cooperation covered in the mapping exercise

Implementation bodies

1 Special EU Programmes Body
2 Foyle, Carlingford and Irish Lights Commission (Loughs Agency)
3 Food Safety Promotion Board (SafeFood)
4 Waterways Ireland
5 North-South Language Body (The Ulster Scots Agency and Foras na Gaeilge)
6 Trade and Business Development Body (InterTradeIreland)
7 North South Implementation Bodies – Cross cutting operational Issues
Agriculture
8 Discussion on CAP issues
9 Safe use and disposal of animal by-products/ TSE management / rendering capacity
10 Cooperation on disease eradication programmes e.g. Tuberculosis (TB), Aujeszky’s disease
11 Animal Health including Epizootic diseases
12 Equines
13 Plant Health and quarantine pests
14 Forest management and development
15 Rural development
16 Dairy international trade working group
17 Invasive Alien Species
18 Farm Safety
19 Agricultural Education
20 Movement of companion and farm animals
21 Cooperation on Products of animal origin
22 Exchange of Information on veterinary medicines
23 Pesticides
24 Timber
25 Veterinary public health and trade meetings
26 Informal cooperation on agri-food policy issues
27 Cooperation on the safety of the animal feed chain

Environment
28 Environmental protection reporting and research
29 Water quality management in a cross-border context
30 Waste management in a cross-border context
31 Work Programme agreed by Ministers in September 2016: sustainable development;
waste/water management; cooperation and exchange of information on
marine/bathing/shellfish waters and water sewage services; circular economy; and
tackling environmental crime
32 Nature/biodiversity, including habitats and birds
33 All-island pollinator plan
34 All-island marsh fritillary group
35 Flood risk management
36 Lough Erne water level agreement
37Strategic environmental assessments; environmental impact assessments; appropriate
assessments
38 Northern Ireland Water/ Irish Water knowledge sharing
39 Mapping data
40 Geodetic network
41 Radiation
42 Wildfire initiatives
43 All-island fracking
44 All-island air quality research: Residential Solid Fuel and Air Pollution
45 River basin management
46 Wildlife trade including CITES
47 Fluorinated gases

Transport
48 Strategic Transport Planning: national road network
49 Strategic Transport Planning: rail network
50 Cross-border bus services
51 Sustainable transport
52 Alternative fuels infrastructure, including electric vehicle charge point network
53 Coordination of transport aspects of EU cross-border programmes, including those funded
through INTERREG and/or TEN-T
54 Strategic Transport Planning: cross-border projects
55 Road and rail safety
56 Road and rail safety reporting and information systems, including mutual recognition of
driving disqualifications, penalty points
57 Rail standards, certification and licensing
58 Road and rail safety: Cooperation between the railway inspectorates North and South
59 Road haulage operator, licensing and qualifications
60 Operation of cross-border taxis
61 All Ireland free travel scheme for senior citizens
62 Recognition of driving licences and disqualifications
63 Motor insurance
64 Vehicle registration
65 Ferries
66 Blue badges

Health
67 Cross-border service provision, including hospital services such as primary percutaneous
coronary intervention services in Altnagelvin, Derry
68 North West Cancer Centre
69 All-island congenital heart disease network
70 Cooperation and Working Together (CAWT)
71 Workstreams on child protection
72 Health protection and promotion (including addressing alcohol misuse, tobacco control,
ECDC, and public health alerts)
73 Major emergencies and emergency services cooperation, including Cross Border
Emergency Management Group
74 Organs for transplantation
75 Blood
76 Tissues and cells
77 The Institute of Public Health in Ireland
78 Controlled drugs licensing group
79 All Ireland Institute of Hospice and Palliative Care (AIIHPC)
80 Human Milk Bank
81 Cross-border GP out of hours service
82 Mutual recognition of prescriptions
83 Continuity of supply of medicines (including radiopharmaceuticals) and devices
84 Serious cross border threats to health (health security)
85 Disease surveillance and ERNs pertaining to the diagnosis and management of rare
diseases
86 ENT Cooperation
87 Clinical trials and Joint Health research
88 Disability Services (aids, appliances, training, cross-border residential placements)
Tourism
89 Tourism Ireland Limited
90 Hosting major cross-border events

Education
91 Education for children with special needs, including Middletown Centre for Autism
92 Educational underachievement
93 School, youth, and teaching exchanges
94 Cross-border movement and cooperation for pupils and school staff
95 Cooperation between the Inspectorates
96 Psychological services
97 North-South Teacher Qualifications working group (NSTQWG)
98 School planning and development
99 North-South Education and Training Standards Committee for Youth Work (NSETS)
100 North-South youth exchanges, including the Causeway programme
101 Recognition of school-based/state-accredited examinations

Energy
102 Wholesale Electricity Market (Single Electricity Market)
103 Gas security of supply
104 Oil resilience planning

Higher and further education
105 Cross-border provision of apprenticeships
106 Cross-border movement of students
107 Staff mobility
108 Skills provision and FE/HE link to the local economy
109 Cross-border partnerships between Higher and Further Education Institutions, including
SFI investigators programme and SFI partnerships
110 Research and development, including through Horizon 2020
111 Higher and further education in agriculture, equine, and horticulture disciplines

Telecommunications and broadcasting
112 Irish language broadcasting
113 Mobile roaming
114 Spectrum
115 Subsea cables

Sport, art, and culture
116 Sport governance
117 Major events
118 Horse racing
119 Greyhound and pigeon racing
120 Motorsport road safety promotion
121 Health promotion
122 National museums
123 Libraries
124 Development and promotion of the Arts (in Northern Ireland, Ireland and abroad)
125 NI Screen

Justice and security
126 Intergovernmental agreement on criminal justice cooperation, including public protection
project advisory group; victims and survivors services project advisory group; forensic science project advisory group; youth justice project advisory group; and criminal justice and social diversity project advisory group
127 Mutual legal assistance in criminal matters
128 Intergovernmental agreement on police cooperation, including protocols for police
cooperation and cross-border secondments and eligibility for posts in policing
129 Northern Ireland Related Terrorism threat
130 Multi-agency cooperation on fuel fraud
131 Multi-agency cooperation on organised crime and drugs
132 Extradition/Surrender, including the European Arrest Warrant
133 Access to shared law enforcement information systems
134 Criminal asset seizure
135 Transfer of prisoners
136 Civil judicial cooperation
137 Other aspects of criminal justice cooperation
138 Joint investigation teams
Inland Fisheries
139 Fisheries liaison group
140 Salmon stocks
141 Eel stocks on the Erne
142 Fish health and aquaculture
143 Voisinage Agreement

Other areas

144 EURES Cross Border Partnership
145 Benefit fraud cross-border cooperation
146 Spatial Planning
147 Enterprise Ireland, InterTradeIreland, INI and other enterprise development agencies
cooperation to promote enterprise development and job creation through enhanced innovation, competitiveness and trade
148 National Traveller Accommodation Consultative Committee
149 Public Service Reform
150 All Island Public Procurement Steering Group
151 Obstacles to Cross Border Mobility (Border People Project)
152 All-Island Local Authority Forum
153 Local authority led cross-border engagement
154 North West Gateway Initiative / North West Development Fund
155 North-South Senior Officials Group on implementation of Section E infrastructure
156 Cooperation between the CSO and the NI Statistics and Research Agency

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