[Brexit: The Northern Ireland border with Ireland]: Why the Republic and Northern Ireland need shared regulatory frameworks / Ireland: The final barrier to a December Brexit deal / Prime Minister’s commitments to Northern Ireland

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Series Details 05.12.17
Publication Date 05/12/2017
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On 4 December 2017, the United Kingdom and the European Union failed to reach an agreement to move on to the next stage of the Brexit talks, with reports suggesting the Democratic Unionist Party had refused to accept proposed concessions on the Irish border.

Anand Menon explains why there were strong reasons for shared regulatory frameworks on both sides of the Irish border to continue following Brexit, and why it remained exceptionally challenging to resolve the issue.

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.

Source Link http://ukandeu.ac.uk/why-the-republic-and-northern-ireland-need-shared-regulatory-frameworks/
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The Conversation, 10.01.18: A top-down solution to the Irish border after Brexit undermines 20 years of peacebuilding https://theconversation.com/a-top-down-solution-to-the-irish-border-after-brexit-undermines-20-years-of-peacebuilding-89260
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