A Small-Scale Proposal: Avoiding A Deadlock On The Irish Edge Inwards The Brexit Talks

Professor Steve Peers, University of Essex

There is an apparent lead chances that the negotiations on the Brexit withdrawal understanding could intermission downwards over forthcoming proposals to address the Irish Gaelic edge controls issue. It is unfortunate that the UK authorities has non tabled its ain treaty text or to a greater extent than advanced proposals for customs facilitation away from the borders. And it is tragic that the British populace is burdened, inwards the shape of their electrical flow Foreign Secretary, amongst i of the most incompetent politicians inwards British history – unable to grasp the obvious differences betwixt levying a congestion accuse at the edge of London boroughs together with the vastly to a greater extent than complex chore of avoiding edge checks betwixt the UK together with Ireland.

Be that every bit it may, inwards advance of the Commission’s proposals due tomorrow, I receive got suggested (in Annex 1) a text on the Irish Gaelic edge issues for the withdrawal agreement, which reflects the articulation study agreed inwards Dec (discussed here) every bit much every bit possible. For ease of reference, Annex 2 includes the relevant excerpt from the Joint Report.

I receive got reflected the text of the articulation study every bit faithfully every bit possible, amongst the exception of i contradiction which I could non reconcile. Some parts of the articulation study appeared to me to last political commitments, so I suggest that they seem every bit Joint Declarations or UK-only declarations which would last component of the Final Act of the withdrawal understanding (this is a mutual approach to treaty drafting).

On the key number of “regulatory alignment”, my suggested text reflects that this is the 3rd of 3 options, together with so suggests deferring negotiation on the details until afterwards Brexit day. This would likewise reverberate the difficulty of negotiating the kickoff or instant selection earlier Brexit day, together with would trim the lead chances of a collapse of the talks, which would jeopardise the 2 sides’ objectives on the edge number together with the other issues at stake inwards the talks (the protection of EU27 together with UK citizens’ rights, if they moved earlier Brexit day, together with avoiding the economical impact of a WTO-only “no deal” result on both sides).

However, this proposition to back upwardly the UK government’s statement to defer the “regulatory alignment” issues presupposes that inwards the meantime the UK authorities puts total endeavour into the kickoff option, proposing a customs facilitation treaty that would avoid edge checks together with a innovation to give it effect. This should include whatsoever additional provisions which may last necessary to maintain the UK’s commitments to ensure North-South cooperation functions on the isle of Republic of Ireland afterwards Brexit.

If the UK authorities cannot produce so so it should receive got the integrity to admit that the promises on this number made during the plebiscite motility were false, rather than blame the European Union or Ireland, or peculiarly Remain voters (whose concern well-nigh the possible complications was dismissed every bit “scaremongering”) for the consequences.

Note that the “1973 reset” canard that “the UK together with Republic of Ireland never had controls before” ignores the fact that the 2 countries never previously diverged every bit to whether they were EEC/EU members or not. And the notion of Republic of Ireland leaving the European Union – against the views of comments on Jeremy Corbyn’s oral communication yesterday) on the other.

Barnard & Peers: chapter 27

Photo credit: Forbes

Annex 1 – proposed text of withdrawal understanding together with declarations

Article 1

The withdrawal of the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland from the European Union shall non prejudice the functioning of the 1998 Good Fri or Belfast Agreement, including its subsequent implementation agreements together with arrangements, together with to the effective functioning of each of the institutions together with bodies established nether them.

This gives effect to component of paragraph 43 of the Joint Report. Unlike the Joint Report, it does non cite solely to the UK’s obligations.

Article 2

The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with the European Union shall refrain from installing whatsoever physical infrastructure or related checks together with controls at the edge betwixt Northern Republic of Ireland together with the Republic of Ireland.

This gives effect to the “no hard borders” component of paragraph 43 of the Joint Report. Unlike the Joint Report, it does non cite solely to the UK’s obligations.

Article 3

1. This Part is without prejudice to understanding on the time to come human relationship betwixt the European Union together with the United Kingdom.

2. This Part is specific to the unique circumstances on the isle of Ireland. 

This partly reflects paragraph 46 of the Joint Report. The paragraph goes on to say that the commitments “are made together with must last upheld inwards all circumstances, irrespective of the nature of whatsoever time to come understanding betwixt the European Union together with United Kingdom”. However, this is inconsistent amongst the same paragraph maxim that the commitments “will non pre-determine the outcome” of time to come talks; together with it is questionable whether parties to a treaty tin flaming bind themselves every bit to what replacement organisation they mightiness handgrip inwards future. The provision on “unique” circumstances arguably points to a relaxation of the EU27’s “no cherry picking” rule.

Article 4

1. Following the death of the [transitional] [implementation] period, the obligation inwards Article 2 shall last ensured past times a [customs cooperation] [customs union] understanding to last negotiated earlier that engagement betwixt the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with the European Union, which shall include whatsoever additional provisions necessary to ensure the absence of physical infrastructure or related checks together with controls at the edge together with the protection of North-South cooperation on the isle of Ireland.

This gives effect to the kickoff selection inwards paragraph 49: “The United Kingdom's intention is to accomplish these objectives through the overall EU-UK relationship”. The kickoff gear upwardly of foursquare brackets reverberate the UK authorities together with EU27’s unlike description of the menstruum afterwards Brexit Day. The instant gear upwardly of foursquare brackets offers an alternative wording reflecting the electrical flow UK’s government’s seat together with a potential time to come Labour authorities seat respectively. See likewise the proposed articulation proclamation 3.

2. In the lawsuit that the understanding referred to inwards paragraph 1 is non concluded, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition advise specific solutions to address the unique circumstances of the isle of Ireland, together with the parties volition negotiate inwards skillful organized faith on that footing to ensure the absence of physical infrastructure or related checks together with controls at the edge together with the protection of North-South cooperation on the isle of Ireland.

Reflects the instant selection inwards paragraph 49.

3. In the absence of on understanding pursuant to paragraphs 1 or 2, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition maintain total alignment amongst those rules of the Internal Market [and the Customs Union] which, directly or inwards the future, back upwardly North-South cooperation, the all-island economic scheme together with the protection of the 1998 Agreement. The listing of those rules shall last established past times the Joint Committee inside i twelvemonth of the larn out date.

The words inwards foursquare brackets would last removed inwards the lawsuit of a Labour government. This reflects the 3rd selection inwards paragraph 49. It adds an obligation to handgrip on the listing of relevant rules inside i twelvemonth of Brexit Day, past times which quest it should last clearer whether discussions on the kickoff or instant options atomic number 82 to a possibility of agreement. The representative for deferring this intelligence until afterwards Brexit Day is that: a) it is premature inwards the absence of discussions of the other options; together with b) it increases the lead chances that no withdrawal understanding tin flaming last concluded, putting at lead chances the intention to avoid a hard edge every bit good every bit all the other objectives of the agreement.  

4. Each political party volition works life mechanisms to ensure the implementation together with oversight of whatsoever specific organisation to safeguard the integrity of the European Union Internal Market [and the Customs Union].

Based on paragraph 51 of the Joint Report. The precise intention of that paragraph is non clear. The words inwards foursquare brackets would last removed inwards the lawsuit of a Labour government.

Declarations

Joint Declarations

1. Both Parties observe the provisions of the 1998 Agreement regarding the constitutional condition of Northern Republic of Ireland together with the regulation of consent. This withdrawal understanding is fully consistent amongst these provisions. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland continues to observe together with back upwardly fully Northern Ireland's seat every bit an integral component of the United Kingdom, consistent amongst the regulation of consent. 

Based on paragraph 44 of the Joint Report.

2. Cooperation betwixt Republic of Ireland together with Northern Republic of Ireland is a fundamental component of the 1998 Agreement together with is essential for achieving reconciliation together with the normalisation of relationships on the isle of Ireland. In this regard, both Parties shout out upwardly the roles, functions together with safeguards of the Northern Republic of Ireland Executive, the Northern Republic of Ireland Assembly, together with the North-South Ministerial Council (including its cross-community provisions) every bit gear upwardly out inwards the 1998 Agreement.

Based on paragraph 47 of the Joint Report.

3. In lodge to give effect to Article 4(1), the parties handgrip to move into into formal negotiations every bit shortly every bit possible afterwards the larn out engagement on the footing of the draft [customs cooperation] [customs union] understanding proposed past times the United Kingdom.

This would give concrete effect to the kickoff selection inwards paragraph 49 of the Joint Report. It presupposes that the UK tables a draft treaty every bit shortly every bit possible inwards 2018. The options inwards foursquare brackets offering alternative wording reflecting the electrical flow UK’s government’s seat together with a potential time to come Labour authorities seat respectively.

4. Both Parties admit that the 1998 Agreement recognises the nascency correct of all the people of Northern Republic of Ireland to select to last Irish Gaelic or British or both together with last accepted every bit such.  The people of Northern Republic of Ireland who are Irish Gaelic citizens volition move along to taste rights every bit European Union citizens, including where they reside inwards Northern Ireland. This Agreement respects, together with is without prejudice, to the rights, opportunities together with identity that come upwardly amongst European Union citizenship for such people.

Based on paragraph 52 of the Joint Report. That paragraph goes on to sate that “in the adjacent stage of negotiations”, the parties “will essay out arrangements required to give effect to the ongoing exercise of, together with access to, their European Union rights, opportunities together with benefits”, but it is non clear what this refers to.

5. Both Parties recognise that the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with Republic of Ireland may move along to brand arrangements betwixt themselves relating to the motility of persons betwixt their territories (Common Travel Area), piece fully respecting the rights of natural persons conferred past times Union law, inwards accordance amongst the relevant Protocols attached to the European Union Treaties. 

Based on the kickoff component of paragraph 54 of the Joint Report, amongst an additional reference to primary European Union law.

6. In accordance amongst Part X [financial settlement], both Parties volition award their commitments to the PEACE together with INTERREG funding programmes nether the electrical flow multi-annual fiscal framework. Possibilities for time to come back upwardly volition last examined favourably, inwards accordance amongst Part Y [[transitional] [implementation] period]. 

Based on the kickoff component of paragraph 55 of the Joint Report, amongst cross-references to the other parts of the understanding added. It would last strange if the UK were non consulted on the proposal for a time to come peace programme during the transition or implementation period, given that it is probable to last tabled inwards boundary 2018 but mayhap non formally adopted until afterwards Brexit day.

UK Declarations

1. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland respects Ireland's ongoing membership of the European Union together with all of the corresponding rights together with obligations that entails, inwards special Ireland's house inwards the Internal Market together with the Customs Union. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland likewise recalls its commitment to preserving the integrity of its internal marketplace seat together with Northern Ireland's house inside it, every bit the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland leaves the European Union's Internal Market together with [Customs Union][enters into a Customs Union amongst the European Union].

Based on paragraph 45 of the Joint Report. The 2 alternatives inwards foursquare brackets reverberate the positions of the electrical flow UK authorities together with a potential Labour authorities respectively.

2. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland remains committed to protecting together with supporting continued North-South together with East-West cooperation across the total attain of political, economic, security, societal together with agricultural contexts together with frameworks of cooperation, including the continued functioning of the North-South implementation bodies.

Based on paragraph 48 of the Joint Report.

3. In the lawsuit that Article 4(3) of this understanding becomes applicable, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition ensure that no novel regulatory barriers educate betwixt Northern Republic of Ireland together with the remainder of the United Kingdom, unless, consistent amongst the 1998 Agreement, the Northern Republic of Ireland Executive together with Assembly handgrip that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition move along to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland internal market.

Based on paragraph fifty of the Joint Report.

4. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland commits to ensuring that no diminution of rights is caused past times its deviation from the European Union, including inwards the expanse of protection against forms of discrimination enshrined inwards European Union law. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland commits to facilitating the related piece of occupation of the institutions together with bodies, established past times the 1998 Agreement, inwards upholding human rights together with equality standards.

Based on paragraph 53 of the Joint Report. There is an interesting query every bit to whether this was intended to move a binding obligation, inwards which representative it should last reciprocated.

5 The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland confirms together with accepts that the Common Travel Area together with associated rights together with privileges tin flaming move along to operate without affecting Ireland’s obligations nether Union law, inwards special amongst observe to gratis motility for European Union citizens.

Based on the instant component of paragraph 54 of the Joint Report.

Annex II – articulation study text

42. Both Parties affirm that the achievements, benefits together with commitments of the peace procedure volition rest of paramount importance to peace, stability together with reconciliation. They handgrip that the Good Fri or Belfast Agreement reached on 10 Apr 1998 past times the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland Government, the Irish Gaelic Government together with the other participants inwards the multi-party negotiations (the '1998 Agreement') must last protected inwards all its parts, together with that this extends to the practical application of the 1998 Agreement on the isle of Republic of Ireland together with to the totality of the relationships gear upwardly out inwards the Agreement.

43. The United Kingdom’s withdrawal from the European Union presents a meaning together with unique challenge inwards relation to the isle of Ireland. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland recalls its commitment to protecting the functioning of the 1998 Agreement, including its subsequent implementation agreements together with arrangements, together with to the effective functioning of each of the institutions together with bodies established nether them. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland likewise recalls its commitment to the avoidance of a hard border, including whatsoever physical infrastructure or related checks together with controls.

44. Both Parties recognise the take to observe the provisions of the 1998 Agreement regarding the constitutional condition of Northern Republic of Ireland together with the regulation of consent. The commitments gear upwardly out inwards this articulation study are together with must rest fully consistent amongst these provisions. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland continues to observe together with back upwardly fully Northern Ireland's seat every bit an integral component of the United Kingdom, consistent amongst the regulation of consent.  

45. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland respects Ireland's ongoing membership of the European Union together with all of the corresponding rights together with obligations that entails, inwards special Ireland's house inwards the Internal Market together with the Customs Union. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland likewise recalls its commitment to preserving the integrity of its internal marketplace seat together with Northern Ireland's house inside it, every bit the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland leaves the European Union's Internal Market together with Customs Union.

46. The commitments together with principles outlined inwards this articulation study volition non pre-determine the result of wider discussions on the time to come human relationship betwixt the European Union together with the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with are, every bit necessary, specific to the unique circumstances on the isle of Ireland.  They are made together with must last upheld inwards all circumstances, irrespective of the nature of whatsoever time to come understanding betwixt the European Union together with United Kingdom.

47. Cooperation betwixt Republic of Ireland together with Northern Republic of Ireland is a fundamental component of the 1998 Agreement together with is essential for achieving reconciliation together with the normalisation of relationships on the isle of Ireland. In this regard, both Parties shout out upwardly the roles, functions together with safeguards of the Northern Republic of Ireland Executive, the Northern Republic of Ireland Assembly, together with the North-South Ministerial Council (including its cross-community provisions) every bit gear upwardly out inwards the 1998 Agreement. The 2 Parties receive got carried out a mapping exercise, which shows that North-South cooperation relies to a meaning extent on a mutual European Union legal together with policy framework. Therefore, the United Kingdom’s deviation from the European Union gives rising to substantial challenges to the maintenance together with evolution of North-South cooperation.  

48. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland remains committed to protecting together with supporting continued North-South together with East-West cooperation across the total attain of political, economic, security, societal together with agricultural contexts together with frameworks of cooperation, including the continued functioning of the North-South implementation bodies.

49. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland remains committed to protecting North-South cooperation together with to its guarantee of avoiding a hard border. Any time to come arrangements must last compatible amongst these overarching requirements. The United Kingdom's intention is to accomplish these objectives through the overall EU-UK relationship. Should this non last possible, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition advise specific solutions to address the unique circumstances of the isle of Ireland. In the absence of agreed solutions, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition maintain total alignment amongst those rules of the Internal Market together with the Customs Union which, directly or inwards the future, back upwardly North-South cooperation, the allisland economic scheme together with the protection of the 1998 Agreement.

50. In the absence of agreed solutions, every bit gear upwardly out inwards the previous paragraph, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition ensure that no novel regulatory barriers educate betwixt Northern Republic of Ireland together with the remainder of the United Kingdom, unless, consistent amongst the 1998 Agreement, the Northern Republic of Ireland Executive together with Assembly handgrip that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland volition move along to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland internal market. 

51. Both Parties volition works life mechanisms to ensure the implementation together with oversight of whatsoever specific organisation to safeguard the integrity of the European Union Internal Market together with the Customs Union. 

52. Both Parties admit that the 1998 Agreement recognises the nascency correct of all the people of Northern Republic of Ireland to select to last Irish Gaelic or British or both together with last accepted every bit such.  The people of Northern Republic of Ireland who are Irish Gaelic citizens volition move along to taste rights every bit European Union citizens, including where they reside inwards Northern Ireland. Both Parties thus handgrip that the Withdrawal Agreement should observe together with last without prejudice to the rights, opportunities together with identity that come upwardly amongst European Union citizenship for such people and, inwards the adjacent stage of negotiations, volition essay out arrangements required to give effect to the ongoing exercise of, together with access to, their European Union rights, opportunities together with benefits.

53. The 1998 Agreement likewise includes of import provisions on Rights, Safeguards together with Equality of Opportunity for which European Union police together with practise has provided a supporting framework inwards Northern Republic of Ireland together with across the isle of Ireland. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland commits to ensuring that no diminution of rights is caused past times its deviation from the European Union, including inwards the expanse of protection against forms of discrimination enshrined inwards European Union law. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland commits to facilitating the related piece of occupation of the institutions together with bodies, established past times the 1998 Agreement, inwards upholding human rights together with equality standards.

54 Both Parties recognise that the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with Republic of Ireland may move along to brand arrangements betwixt themselves relating to the motility of persons betwixt their territories (Common Travel Area), piece fully respecting the rights of natural persons conferred past times Union law.  The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland confirms together with accepts that the Common Travel Area together with associated rights together with privileges tin flaming move along to operate without affecting Ireland’s obligations nether Union law, inwards special amongst observe to gratis motility for European Union citizens.  

55. Both Parties volition award their commitments to the PEACE together with INTERREG funding programmes nether the electrical flow multi-annual fiscal framework. Possibilities for time to come back upwardly volition last examined favourably. 

56. Given the specific nature of issues related to Republic of Ireland together with Northern Ireland, together with on the footing of the principles together with commitments gear upwardly out above, both Parties handgrip that inwards the adjacent stage piece of occupation volition move along inwards a distinct strand of the negotiations on the detailed arrangements required to give them effect. Such piece of occupation volition likewise address issues arising from Ireland’s unique geographic situation, including the transit of goods (to together with from Republic of Ireland via the United Kingdom), inwards line amongst the approach established past times the European Council Guidelines of 29 Apr 2017.

Share this post