By: David Phinnemore
Part Five of the IIEA’s February 2018 Brexit Status Report series is written by David Phinnemore, Dean of Studies at Queens University Belfast, and one of the leading academic experts on Brexit and Northern Ireland. In this piece, he sets out the state of play in the Brexit negotiations as seen from Northern Ireland.
Close observers of Brexit have always known that the position of Northern Ireland will be a key issue to be resolved in the UK’s withdrawal negotiations. Since Article 50 was triggered on 29 March 2017, the Irish and UK governments and the EU have placed Northern Ireland high on the agenda by issuing commitments on avoiding a hard border, upholding the Belfast ‘Good Friday Agreement’, maintaining North-South cooperation and, more recently, supporting the all-island economy. Such commitments have been widely welcomed.
However, as the midpoint of the Article 50 process looms, it has become increasingly difficult to see exactly how these commitments can be realised in practice given UK government red lines on leaving the Customs Union and the Single Market and unionist objections to any differentiated treatment of Northern Ireland in the terms of the UK’s withdrawal and the future UK-EU relationship.
For much of 2017, these tensions failed to surface in the debate. That has now changed. First, in early December 2017, just as the UK Prime Minister, Theresa May, and Commission President, Jean-Claude Juncker, were finalising the Joint Report of their negotiators, the DUP leader, Arlene Foster, interjected and let it be known that her party could not support language on continued regulatory alignment on the island of Ireland if it meant regulatory divergence between Northern Ireland and the rest of the UK. This led to a near breakdown in the withdrawal negotiations.
The Joint Report and Northern Ireland: Squaring the Circle
As noted by Tom Arnold in the previous entry in this IIEA series, the text of the Joint Report of the negotiators was revised in an attempt to assuage DUP concerns. The result, however, was a text that, though containing a UK guarantee to avoid a hard border, provides no clarity on how this will be achieved. New language was added on the UK ensuring ‘no new regulatory barriers’ being developed between Northern Ireland and the rest of the UK, and on ‘unfettered access’ to the UK market for Northern Irish businesses. The UK government also made clear that it planned in the first instance to protect North-South cooperation and to guarantee to avoid a hard border in the post-Brexit UK-EU relationship. If this were not possible, it would propose ‘specific solutions to address the unique circumstances on the island of Ireland’. In the absence of such solutions, a third option would be pursued: the UK would ‘maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement’.
All this sounds positive. However, once the UK government’s red lines on leaving the Customs Union and the Single Market are factored in, it is hard to see how the commitments can be realised. If the UK is outside a customs union with the EU, customs controls will be required; if it is outside the Single Market adopting its own rules, regulatory divergence will occur. Given the apparent refusal of the DUP to countenance any differentiated treatment of Northern Ireland, it is far from clear how the various circles of the Joint Report can be squared, if at all. Not helping matters is the absence of UK government clarity on either the desired form and substance of the future arrangement it wants with the EU or the ‘specific solutions’ it has in mind for Northern Ireland.
Complicating matters further is the lack of shared UK and EU understanding of what amount of regulatory alignment is required to avoid a hard border and support ‘now or in the future’ North-South cooperation, the all-island economy and the protection of the 1998 Agreement. A narrow interpretation favoured by some UK officials focuses on alignment in a limited range of areas, i.e. transport, agriculture, education, health, environment and tourism. The Irish and EU view is far more expansive.
Shortly after adoption of the Joint Report, David Davis, the UK Minister for Exiting the EU, argued that what had been agreed was ‘much more a statement of intent than it was a legally enforceable thing’. He subsequently clarified the remarks, but the impression has persisted that the UK government needs to be held to the commitments it made in December; hence the recent comments from the Taoiseach, Leo Varadkar, that there can be ‘no backsliding’.
Important to note as well is that the Joint Report covered more than just the questions of avoiding a hard border and supporting North-South Cooperation. It included important commitments regarding the Good Friday Agreement notably the UK agreeing to uphold the EU citizenship rights of Irish citizens born and resident in Northern Ireland and to ensure ‘no diminution’ of their rights as a result of leaving the EU. The continued operation of the Common Travel Area was also noted. How all the commitments would be put into effect would be primarily for the Withdrawal Agreement.
Political stalemate in Northern Ireland
Generally absent from the whole process of determining what is required have been voices from Northern Ireland. The failure to establish an Executive following the Assembly elections on 2 March 2017 has meant that Northern Ireland has lacked a formal voice in the UK’s (admittedly inadequate) domestic mechanisms for formulating UK government positions. The absence of a functioning Assembly also means Northern Ireland continues to lack a public forum for debate, reflection and challenge on Brexit. By contrast, the UK government’s dependence on a confidence and supply agreement with the DUP means that a unionist voice is heard in London. The outcome of the snap Westminster election in June 2017 means that nationalist voters are no longer directly represented in the House of Commons.
Northern Ireland voices need to be heard if the solutions that emerge from the withdrawal negotiations are to be informed and are to have any hope of being supported. One small, yet positive recent development has been the inclusion of the new Secretary of State, Karen Bradley, as a full member of Theresa May’s Cabinet Committee on EU withdrawal negotiations. This ensures that an appreciation at least of the Northern Ireland dimension features in key Brexit decisions of the UK government.
The new arrangement cannot compensate, however, for the absence of a genuine Northern Ireland voice through an Executive. While the current efforts towards the establishment of a new Executive have so far been unsuccessful, even if a new Executive were established, it would be unwise to expect a coherent Northern Ireland voice to emerge to inform the UK government position. While high level agreement on the challenges that Brexit poses might be forthcoming, differences between the DUP and the UUP, on the one hand, and Sinn Féin, the SDLP and Alliance, on the other, on what positions and solutions should be pursued, have only become more and more entrenched.
Whereas there have been unionist voices open to bespoke arrangements being put in place for Northern Ireland, fears of any consequent weakening of the union have meant that support has become muted, particularly in the context of the vocal euroscepticism and hard Brexit positions being advanced by the DUP’s Westminster MPs. By contrast, Sinn Féin, SDLP and Alliance have each advocated Northern Ireland remaining in the Single Market and either ‘a’ or ‘the’ customs union with the EU.
These positions mirror many of the internal differences within the UK government. That the differences persist should be a cause for major concern given how close March 2018 now is, and the need for clarity on what Brexit will mean for Northern Ireland and the border in particular. Given the commitments in the Joint Report, Northern Ireland will remain a key focus of the withdrawal negotiations. What the result of those negotiations will be for Northern Ireland, however, remains very much open.