Post-Brexit Northern Ireland: Between Two Unions

Abstract

The UK’s withdrawal from the EU posed a significant challenge to the progress that had been achieved in Northern Ireland –one of the most impoverished post-conflict societies in Europe. Brexit could raise significant frictions along the territorial border between the two sides of Ireland and its all-island economy. If the UK had decided to remain in the single market and the EU customs union after Brexit, the vast majority of these challenges would have been avoided. However, since Theresa May’s Lancaster House speech, it became clear that the UK would not be part of the single market and the customs union after Brexit took place. So, the negotiations for the withdrawal of the UK from the EU were haunted by an almost unsolvable riddle.  How could the UK and the EU keep the Irish border free of any physical infrastructure without jeopardising the integrity of the EU single market?

 

 Introduction

The UK’s withdrawal from the EU posed a significant challenge to the progress that had been achieved in Northern Ireland –one of the most impoverished post-conflict societies in Europe. Brexit could raise significant frictions along the territorial border between the two sides of Ireland and its all-island economy. If the UK had decided to remain in the single market and the EU customs union after Brexit, the vast majority of these challenges would have been avoided. However, since Theresa May’s Lancaster House speech, it became clear that the UK would not be part of the single market and the customs union after Brexit took place. So, the negotiations for the withdrawal of the UK from the EU were haunted by an almost unsolvable riddle.  How could the UK and the EU keep the Irish border free of any physical infrastructure without jeopardising the integrity of the EU single market?

That riddle always had two possible solutions. The UK as a whole could opt for a relationship with the EU that would be much closer than the one described in its red lines and effectively remain within the EU’s regulatory orbit – at least with regard to free movement of goods. Alternatively, the UK could accept that Northern Ireland would have a closer relationship with the European Union than the rest of the country as the EU Commission had proposed in February 2018. Theresa May opted for the first model condemning the EU Commission’s approach as one that no UK prime minister would ever accept. Boris Johnson decided to choose the second proving that there was at least one British Prime Minister that could accept such solution.

 

Between Two Customs Unions

The major difference with the February 2018 EU proposal for a Northern Ireland-specific arrangement is that the current Protocol on Ireland/Northern Ireland –which Prime Minister Boris Johnson signed— recognises that de jure Northern Ireland remains within the UK customs union. According to it, Northern Ireland should not be in a separate customs territory than the rest of the UK. From a substance point of view, the fact that the region remains de jure part of the UK customs territory in accordance with Article XXIV:2 GATT ensures that it will have access to the free trade agreements that the UK will strike. Notwithstanding, EU customs legislation continues to apply to the region even after the end of the transition period. Similarly, Articles 30 and 110 TFEU that prohibit customs duties and discriminatory internal taxation on imported goods from EU Member States and a significant part of the EU acquis on the free movement of goods remain applicable with regard to Northern Ireland, as is the case for EU law provisions concerning VAT and excise. This makes the region de facto part of the EU customs territory in the sense that this crucial part of the law of the EU internal market enjoys extra-territorial application over this area.

In practice, this hybrid regime means that after the end of the transition period, trade between the two shores of the Irish Sea is not frictionless any more. According to Article 263 of the Union Customs Code, goods that are taken out of Northern Ireland and sent to Great Britain have to be covered by a pre-departure declaration. The situation is significantly more complicated for trade flows in the opposite direction: from Great Britain to Northern Ireland. Apart from complying with EU import formalities including entry summary declarations and customs declarations, traders may also face tariffs if the relevant goods are not wholly obtained in the UK. Concerning checks and controls of product safety, these are based primarily on risk analysis. Having said that, when it comes to live animals, animal products, and plants, systematic sanitary and phytosanitary checks take place at entry points to secure the integrity of the Union’s single market.

So far, those unavoidable frictions have been largely addressed by allowing for grace periods. With regard to food, for instance, major retailers do not need to comply with all the EU’s usual certification requirements when importing goods from the rest of the UK. However, once those grace periods expire, there is the fear that the systems of those supermarkets and other retailers would be overwhelmed by the existence of complex bureaucratic requirements. Still, if one puts aside the bureaucratic and administrative costs that companies in Northern Ireland face, the arrangement may allow the province to have the best of both worlds, as it remains de jure part of the UK customs territory but applies de facto EU customs and free movement of goods legislation. This hybrid model that the UK and the EU opted for allowed the UK political elites to accept what was in essence an arrangement that was very similar to what the Commission initially proposed in February 2018.

 

Between Two Economic Unions

Such a differentiated relationship with the EU has led a number of Unionist/Loyalist/British commentators and political stakeholders to argue that an ‘economic united Ireland grows before our eyes’. It is true that once the grace periods are over, tensions might arise in the economic relationship between Northern Ireland and the rest of the UK. Trade between the two shores of the Irish Sea will not be frictionless. Goods brought from Great Britain to Northern Ireland may even face tariffs if they are considered as being ‘at risk of subsequently being moved into the Union’. The extent of the friction in the intra-UK trade will very much depend on the political decisions that London will make in the years to come. The more distance they decide to take from the regulatory framework and standards of the EU, the less frictionless the trade will be between Northern Ireland and its metropolitan State.

Still, to argue that the Protocol on Ireland/Northern Ireland leads to an economic united Ireland is to needlessly and dramatically overstate the extent of the implications of a differentiated arrangement for Northern Ireland. The reason being that the Protocol reduces the single market access of Northern Ireland to goods, including agricultural and electricity and excluding it from the internal market in services. This is particularly important if one takes into account that the service industries account for 80% of total UK economic output (Gross Value Added) and 82% of employment. This means that despite the fact that EU law on goods remains applicable on Northern Ireland, the economic border between the Republic and Northern Ireland –two entities with a different currency—will continue hardening as the latter continues to follow the UK regulatory framework in every other area.

Even with regard to the crossing of persons, the Irish border may become harder notwithstanding the existence of the Common Travel Area that allows British and Irish citizens to move freely. The UK Government has announced plans to require non-Irish and non-British nationals to get clearance before crossing the Irish border. Under the Nationality and Borders Bill, EU citizens and others without an Irish or British passport would need to apply for an Electronic Travel Authorization (ETA) to enter the U.K., including Northern Ireland, from 2025. This is yet another reminder that the Protocol is not a devious EU scheme that would lead to the economic annexation of Northern Ireland. It is rather a pragmatic minimalist solution that helps to avoid the resurrection of a hard border on the island of Ireland by allowing free movement of goods across the two sides.

 

Between Two Political Unions

Hyperbolic as those objections might be it is important to understand that the political leaders of the Unionist/Loyalist/British ethno-religious segment in Northern Ireland are not ready to ‘accept any form of regulatory divergence which separates Northern Ireland […] politically from the rest of the United Kingdom’. In fact, one of the architects of the Good Friday Agreement, Lord Trimble, argued that the alignment of Northern Ireland with the rules of the single market in the area of the free movement of goods could have equated to the region ending up ‘as part of an effective EU protectorate’. In other words, they believe that the differentiated relationship that Northern Ireland enjoys with the EU according to the Protocol undermines the territorial and constitutional integrity of the United Kingdom.

This is again a needless overstatement. First of all, it is important to point out that regulatory divergence has always been a reality in that part of the UK. Northern Ireland already significantly differentiates from the rest of the UK, even in the area of protection of fundamental rights. For example, same-sex marriages are not recognised there.

But even with regard to the differentiated relationship with the EU, it is important to point out that the sovereignty of a (Member-)State over a region has never been challenged just because EU law is applied differently there. In fact, there are a number of cases where different parts of a (Member-)State have different relationships with the EU – Greenland  is different from the rest of Denmark, for example. The same applies mutatis mutandis to regions of third countries that are more aligned with the EU than the rest of their metropolitan state. The Austrian territories of Jungholz and Mittelberg have been part of the EU customs territory since it was established – decades before Austria joined the EU in 1995. More importantly, in a special protocol of the UK withdrawal agreement, it has been agreed that another region with a constitutional relationship with the UK will remain in the EU customs territory – the UK Sovereign Base Areas in Cyprus—proving that a differentiated relationship with the EU does not alter the constitutional position of a region with the UK per se.

Having said that, it is also important to highlight the following. According to the Belfast/Good Friday Agreement, ‘Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this.’ Section 1 of the Northern Ireland Act 1998 is a rare example of a provision of a constitutional statute that explicitly recognises the right of secession of a region. If in the future, the majority of the people in Northern Ireland democratically decide to secede from the UK and join the Republic of Ireland, the EU legal order is able to accommodate such political development. The secession of Northern Ireland will not mean the creation of a new (Member-)State. Instead, it will trigger the territorial expansion of an EU Member State to which EU law already applies in accordance with Article 52 TEU. In a way, the reunification of Ireland could follow the precedent of the German reunification where the application of the acquis was extended to East Germany without an amendment of the primary legislation. The difference is that, in the case of Germany, the EU acquis did not apply at all in the East before the reunification, something that is very different with the situation in Northern Ireland.

Indeed, in a recently published poll, it seems that there is a growing majority of people that believe that Northern Ireland will quit the United Kingdom to join the Republic and the EU in the next decade. In fact, a significant number of them has stated that Brexit has made them question their support for the province remaining part of the UK. Perhaps, there lies the paradox underpinning the position of the ardent supporters of Brexit with the buccaneering vision for Britain’s future. In order to keep the United Kingdom together, they need to rally behind and support the hybrid position of Northern Ireland that allows her to be between two Unions.

 

 

Skoutaris, N. 2022. ‘Post-Brexit Northern Ireland: Between Two Unions ‘, 50 Shades of Federalism. Available at: https://50shadesoffederalism.com/case-studies/post-brexit-northern-ireland-between-two-unions/

 

Further Reading

Katy Hayward, What Do We Know and What Should We Do About the Irish Border? (Sage Publishing 2021)

Sylvia de Mars et al. Bordering Two Unions: Northern Ireland and Brexit (Bristol University Press, 2018)

David Phinnemore, Northern Ireland: A ‘Place Between’ in UK–EU Relations? (2020) 25(4) European Foreign Affairs Review, 631 – 650

Nikos Skoutaris ‘What’s in an Irish Border? Brexit, the Backstop(s) and the Constitutional Integrity of the UK’ DCU Brexit Institute – Working Paper N. 02.2020