A professor of European law explains why the Brexit border is not just an Irish problemby Kenneth Armstrong / December 6, 2017 / Leave a comment
Avoiding a so-called ‘hard border’ on the island of Ireland is an ambition that seems to be shared by all sides in the Brexit negotiations. But as the United Kingdom prepares to leave not just the EU but also its Single Market and Customs Union, the means of doing so has not been readily apparent.
With the border issue forming a key part of the first phase of Article 50 negotiations, making sufficient progress on this issue is key to whether the UK can move to the next phase of talks about the future trade relationship between the UK and the EU.
The EU, and the Irish Government, take the view that Brexit is not of their making and it is for the UK Government to put forward proposals for how the land border on the island of Ireland will be managed post-Brexit.
As the UK Prime Minister travelled to Brussels on 4 December to meet with European Council President Tusk and European Commission President Jean-Claude Juncker, it seemed as though a breakthrough agreement might be possible that could allow the European Council to give the green light to the next phase of negotiations.
That was until the Democratic Unionist Party (DUP) issued a statement that it would “not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.” This was a reaction to the apparent agreement between the UK, Ireland and the EU that ‘regulatory alignment’ would be maintained on the island of Ireland.
The aim of alignment would be to avoid having to introduce border checks to ensure that goods entering the EU Single Market via Ireland conformed to EU regulatory requirements.
The DUP, however, was anxious that a border in the Irish Sea could emerge, with goods on the island of Ireland having to comply with EU rules, while different rules could apply in the rest of the UK.
With the DUP signalling concerns, it became clear that no deal could be signed off.
A defining moment for Brexit negotiations
This debate about regulatory alignment and regulatory divergence is a defining moment for the Brexit negotiations beyond the technical question of whether talks can proceed to a second phase.
Indeed, it goes to the heart of two key issues: the type of Brexit that the UK Government ought to pursue and the manner in which the UK Government is treating the constituent nations of the UK in formulating its Brexit plans.
In terms of the type of Brexit that the UK Government ought to seek, apart from the UK remaining in the EU, the most obvious way of avoiding both a land border and a sea border would be for the UK as a whole to continue to conform to Single Market regulatory requirements post-Brexit.
No way but Norway?
One option would be for the UK to opt for the so-called ‘Norway’ model of accessing the Single Market via the European Economic Area (EEA) Agreement between participating European Free Trade Association (EFTA) states and the EU.
This model has a mechanism by which regulatory alignment between the EU and the participating EFTA states is maintained over time.
The EEA model would also achieve regulatory alignment across the whole of the UK and avoid giving a special status to Northern Ireland.
Being outside the Customs Union would not eliminate the imposition of tariffs and duties for goods being imported into the island of Ireland from outside the EU, but the kind of smart electronic border that applies between EFTA state Norway and EU state Sweden could be a technical model for the Irish border.
However, a customs cooperation agreement could also ensure that formalities were carried out either at ports and airports in Ireland, or in other EU Member States for goods that are simply transiting through to other EU countries.
The sticking point of the EEA model would inevitably be about keeping free movement of workers, although proponents of the EEA approach claim that safeguard measures could be invoked to limit free movement.
The point remains that an EEA approach would have significant advantages in managing the Irish border issues without producing a differentiated Brexit.
But this is a moment of clarity not just about the direction of the UK’s Brexit policy but also the manner in which that policy is formed.
These splintered Isles
The idea that the UK Government might be prepared to allow Northern Ireland, in effect, to remain in the Single Market in goods and services under conditions of regulatory alignment, immediately drew complaints from the Scottish First Minister Nicola Sturgeon, the Welsh First Minister Carwyn Jones and the London Mayor Sadiq Khan that similar deals were not being offered to their respective territories.
This highlights the inability of the leaders of the constituent territories of the United Kingdom to be able to exert any form of political leverage over Brexit policy. More specifically, for the devolved governments it indicates that the promised ‘direct line’ to David Davis via the Brexit Joint Ministerial Committee is not producing a consensual form of Brexit policy-making that responds to the demands of all the constituent territories of the UK.
Rather, it is the DUP that has a direct line to the UK Government to the point that the Prime Minister interrupted her lunch with President Juncker to talk with the DUP leader on the phone.
A Brexit policy that works for all
An approach based around regulatory alignment with the Single Market through the EEA would not only help manage the border issues in Ireland, it would provide a basis for bringing all the devolved administrations together on a Brexit policy they could, in principle, get behind.
This really is the moment for the Prime Minister to decide if she is capable of building a consensus among all the constituent nations of the UK or instead be at the beck and call of factions within the Conservative Party and a DUP that is exploiting the weakness of her Government.