[Brexit and Northern Ireland / Ireland]: Mutually assured destruction? Understanding the UK and Ireland’s standoff over the Northern Irish border

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Series Details 22.05.18
Publication Date 22/05/2018
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Time was rapidly running out in the Brexit negotiations and there was still no agreement in sight during the spring of 2018 on the issue of the Irish border. Gavin Barrett explained that despite the ultimatums emanating from each side, a no-deal Brexit would be catastrophic for both the UK and Ireland.

Background information

The United Kingdom government had issued on the 16 August 2017 the second of a series of papers putting forward its negotiating position on the UK’s future partnership with the European Union (EU). It was published in the context of the negotiations being undertaken with the EU for the UK to leave the union following the Brexit referendum vote of June 2016.

The position paper on Northern Ireland and Ireland outlined the UK’s position on addressing the unique circumstances of Northern Ireland and the land border with Ireland.

The position paper stated that the Government would strive to protect the Common Travel Area (CTA) and associated rights for UK and Irish citizens, and put upholding the Belfast (‘Good Friday’) Agreement at the heart of its Exit negotiations.

The paper also put forward proposals on avoiding a hard border on the movement of goods — making clear the UK’s position that there should be no physical infrastructure at the border — and planned to preserve the wide range of institutional cooperation between Northern Ireland, Ireland and Great Britain including for the energy market.

The European Commission set out on the 7 September 2017 its principles for the political dialogue on Ireland and Northern Ireland in the Brexit negotiations.

The Paper stated that the Good Friday Agreement should continue to be protected and strengthened in all its parts after the United Kingdom's withdrawal from the European Union. The continuation of the Common Travel Area, which facilitated the interaction of people in Ireland and the UK, should also be recognised.

Key issues included ensuring that:

+ the interlocking political institutions on the islands of Great Britain and Ireland, established by the Good Friday Agreement, continue to operate;
+ cooperation (in particular, North-South cooperation between Ireland and Northern Ireland) was protected across all the relevant sectors;
+ that full account be taken of the birth right of the people of Northern Ireland to identify themselves as British or Irish, or both.

Given Ireland's unique situation in the Brexit negotiations, a unique solution was required.

In the first phase of the Brexit negotiations up to October 2017, the EU wished to reach a common understanding with the UK on the implications of its withdrawal for the Good Friday Agreement and the Common Travel Area. Once there was sufficient progress on the principles set out in the paper, discussions might move to the second phase of negotiations, which aimed to find flexible and imaginative solutions to avoid a hard border on the island of Ireland. These solutions must respect the proper functioning of the internal market and the Customs Union, as well the integrity and effectiveness of the EU's legal order.

As it was the UK's decision to leave the EU, it was the UK's responsibility to propose solutions in this regard.

As a follow on to the European Council held in Brussels on the 19 October 2017, the heads of state and government of the Member States of the European Union met in EU27 formation (EU Member States minus the United Kingdom) on the 20 October 2017. They adopted conclusions on the state of the Brexit negotiations.

To the disappointment of the United Kingdom government, the EU27 deemed that insufficient progress had been made on the EU's three priority aims (citizens’ rights, financial settlement and Northern Ireland) to allow for the second sequence of negotiations, including trade issues, to begin .

The issue would be examined again in December 2017 at the next European Council summit. However, internal preparatory discussions as to second sequence issues would begin between the EU27 and the EU Institutions.

It was announced on the 31 October 2017 in a jointly agreed statement by Michel Barnier, the European Commission's Chief Negotiator and David Davis, Secretary of State for Exiting the European Union that a further shortened sequence of Article 50 negotiations would be held on the 9 and 10 November 2017.

Little clear progress was reported by either side at the end of the negotiations. David Davis said 'this week has enabled us to consolidate the progress of earlier negotiating rounds and to draw out those areas where further political and technical discussion is required ... This is now about moving into the political discussions that will enable both of us to move forward together'.

Michel Barnier said 'Do not expect from us today, at this stage, announcements or decisions. ... The discussions over the past days – in between the two European Councils – are a moment of deepening, clarification and technical work.

He also indicated that the UK had two weeks left to make concessions if the Brexit negotiations were to advance to the next stage at the 14-15 December 2017 European Council meeting. The concessions were seen to concern, in particular, the issues of the border between Northern Ireland and Ireland, and the financial settlement.

A key meeting between Theresa May and European Commission President Jean-Claude Juncker on the 4 December 2017 took place at which it was hoped a provisional agreement on contentious issues could be made prior to the European Council summit. However, news reports of the meeting suggested that while such an agreement was made between the UK and the EU, the Democratic Unionist Party (DUP) in Northern Ireland refused to accept the part of the agreement concerning Northern Ireland. This was significant because of the June 2017 Confidence and Supply Agreement between the Conservative Party and the DUP by which the latter would support the Conservative minority government in the UK on votes on the Queen’s Speech, the Budget, and legislation relating to Brexit and national security.

Arlene Foster, Leader of the Democratic Unionist Party and First Minister of Northern Ireland said on the 4 December 2017 that 'We have been very clear. Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom. The economic and constitutional integrity of the United Kingdom will not be compromised in any way'.

Irish prime minister Leo Varadkar said on the 4 December 2017 that he was 'surprised and disappointed' with the lack of a deal on Brexit divorce issues.

At a press conference held early on the 8 December 2017 European Commission President Jean-Claude Juncker and United Kingdom Prime Theresa May announced that they had reached agreement in principle across the three areas under consideration in the first phase of negotiations for the UK to leave the EU:

+ protecting the rights of Union citizens in the UK and UK citizens in the Union
+ the framework for addressing the unique circumstances in Northern Ireland with its border with Ireland
+ the financial settlement

The Prime Minister's Office issued on the 8 December 2017 a Policy Paper Prime Minister's commitments to Northern Ireland .

In a statement also issued on the 8 December 2017 Arlene Foster, Leader of the Democratic Unionist Party and First Minister of Northern Ireland said that the DUP could now accept the text as there were commitments to:

+ Northern Ireland would leave the European Union along with the rest of the United Kingdom.
+ Northern Ireland would leave the single market and the customs union along with the rest of the United Kingdom.
+ There would be no customs or trade border down the Irish Sea between Northern Ireland and the rest of the United Kingdom.
+ Northern Ireland would not be separated constitutionally, politically, economically or regulatory from the rest of the United Kingdom and the joint UK-EU report at the conclusion of phase one makes clear that in all circumstances the United Kingdom would continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the UK internal market.
+ There would be no so-called ‘special status’ for Northern Ireland as demanded by Sinn Fein.
+ The report makes it clear that the UK remained committed to preserving the integrity of its internal market and Northern Ireland's place within it, as it left the EU's internal market and customs union.

However, the DUP believed there was still more work to be done to improve the paper. Specifically, more work was needed around:

+ the areas of cooperation where it would be necessary to have alignment of rules and standards,
+ how any alignment could be effected without staying in the single market and customs union and
+ what necessary alignment may be required to happen.

On 15 December 2017 the European Council endorsed the European Commission’s assessment that 'sufficient progress' had been made in the Brexit negotiations for the EU and the UK to move on to phase two of the Brexit negotiations. This came after the series of stops and starts, as the two sides grappled with the three priority issues in phase one: citizens’ rights, , the financial settlement and the Irish border question.

The European Commission issued on the 28 February 2018 a draft legal text which was supposed to translate the December 2017 deal into a legally binding form.

On the border issue between Ireland and Northern Ireland the draft text proposed a 'common regulatory area after Brexit on the island of Ireland - in effect keeping Northern Ireland in a customs union - if no other solution was found. Nevertheless EU chief negotiator Michel Barnier called on the UK to come up with alternatives. In response, UK Prime Minister Theresa May said the European Commission option threatened the 'constitutional integrity' of the United Kingdom.

The European Union and the UK announced on the 19 March 2018 that progress had been reached on the negotiations for the UK to leave the EU by the publication of a Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

The draft Withdrawal Agreement included agreed legal text for the implementation period from March 2019 until the end of 2020, citizens’ rights, and the financial settlement, as well as a significant number of other articles. The UK and the EU negotiating teams aimed to finalise the entire Withdrawal Agreement by October 2018. There was still no final agreement on an arrangement for the border between Ireland and Northern Ireland

Michel Barnier, chief EU negotiator, said 'On Ireland and Northern Ireland, we must have a workable and practical solution to avoid a hard border and protect North-South cooperation.

The EU and the UK agreed to include in the withdrawal agreement text published today a note on how the Irish issues will be dealt with.

We have agreed the following:

+ Both sides remain committed to December's Joint Report in all its aspects – all.
+ We have agreed that all the issues identified in the EU text must be addressed for finding a viable and legally soundsolution.
+ n particular, we agreed today that a backstop solution must form part of the legal text of the Withdrawal Agreement.
+ We have also agreed on some elements of the Protocol, notably those related to the Common Travel Area and North-South cooperation.

As I said several times, the backstop will apply unless and until another solution is found'.

In relation to the issue of the border between the Republic of Ireland and Northern Ireland, the Irish Government's Brexit Update, No.3, April 2018 reported:

+ In relation to the Protocol on Ireland and Northern Ireland, the UK has now agreed that a backstop solution for the border will form part of the legal text of the Withdrawal Agreement.
+ It has always been intended that the backstop would apply unless and until another solution is found. Our preference is to resolve these issues through the wider agreement on the EU’s future relationship with the UK.
+ In the meantime, the focus must be on closing the gaps necessary to agree the Protocol.

Visit by Michel Barnier to Ireland 30 April-1 May 2018

The EU's chief Brexit negotiator Michel Barnier visited Ireland and Northern Ireland on a two-day visit, 30 April - 1 May 2018 as part of the negotiations for the United Kingdom to leave the European Union.

His schedule included:

+ 30.04.18: visit to InterTrade Ireland, Newry for a roundtable discussion with business stakeholders and cross-border groups and companies
+ 30.04.18: meeting with Chief Commissioner of the Irish Human Rights and Equality Commission, Emily Logan, and Chief Commissioner of the Northern Ireland Human Rig

Source Link http://blogs.lse.ac.uk/europpblog/2018/05/22/mutually-assured-destruction-understanding-the-uk-and-irelands-standoff-over-the-northern-irish-border/
Related Links
LSE European Institute: LSE Brexit, 11.04.18: Hume’s legacy: British-Irish relations need strengthening to face the challenges of Brexit http://www.europeansources.info/record/humes-legacy-british-irish-relations-need-strengthening-to-face-the-challenges-of-brexit/
ESO: In Focus: Brexit - The United Kingdom and the European Union http://www.europeansources.info/record/brexit-the-united-kingdom-and-the-european-union/
ESO: Key Source: The impact of Brexit in Ireland http://www.europeansources.info/record/the-impact-of-brexit-in-ireland/
The Conversation, 22.06.18: Brexit: this poll reveals a sad truth about Britain and Northern Ireland https://theconversation.com/brexit-this-poll-reveals-a-sad-truth-about-britain-and-northern-ireland-98722
Federal Trust: Blog, 22.05.18: Brexit: Irish realism meets British wishful thinking http://fedtrust.co.uk/brexit-irish-realism-meets-british-wishful-thinking/
Institute for Government: IfG Insight, June 2018: The Irish border after Brexit https://www.instituteforgovernment.org.uk/publications/irish-border-after-brexit
Institute of International and European Affairs: Brexit Brief, No.40 (11.05.18) https://www.iiea.com/wp-content/uploads/2018/05/BrexitBrief_40_FINAL_2.pdf
BBC News, 21.05.18: Theresa May defends customs Brexit 'backstop' http://www.bbc.co.uk/news/uk-politics-44194785
Politico, 17.05.18: Leo Varadkar: No Brexit deal without border backstop https://www.politico.eu/article/customs-union-leo-varadkar-no-brexit-deal-without-border-backstop-western-balkans-summit-sofia/
The Guardian, 21.05.18: May: customs backstop to only apply in 'very limited' circumstances https://www.theguardian.com/politics/2018/may/21/theresa-may-brexit-customs-backstop-very-limited-circumstances
Chartered Accountants Ireland: Back to Brexit Basics, No.10, May 2018: The three customs options https://www.charteredaccountants.ie/News/series-10---back-to-brexit-basics-the-three-customs-options
The Conversation, 23.05.18: Can technology and ‘max fac’ solve the Irish border question? Expert explains https://theconversation.com/can-technology-and-max-fac-solve-the-irish-border-question-expert-explains-96735

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