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Brexit: "Phase 1", the joint commitments, and Northern Ireland

08.12.2017 Commodities & trade, Competition, Corporate, Banking & finance

An overview of the joint commitments agreed between the UK and EU and the legal, economic, and political challenges posed by the Irish border to a final Withdrawal Agreement.

On 8 December 2017, negotiators for the European Union and United Kingdom issued a joint report confirming that the parties have reached agreement in principle across the following three areas under consideration, which together form the first phase of Brexit negotiations:

(a) Protecting the rights of EU citizens in the UK and British citizens in the EU;

(b) The single financial settlement; and

(c) The nature and rules regarding the border between Northern Ireland (which is part of the UK) and the Republic of Ireland (which is an EU Member State).

Ireland’s Taoiseach, Leo Varadkar, has described this agreement as, “the end of the beginning” of the negotiations. The report is described by the parties as a series of “joint commitments” rather than an independent agreement: the terms are loosely worded, not legally binding, and open to adaptation. The parties had previously agreed that the Brexit negotiations are subject to the caveat that, “nothing is agreed until everything is agreed”1;  accordingly, the joint commitments published on 8 December shall only take legal effect when they are entered into the final Withdrawal Agreement.

What do the joint commitments say?

The parties have agreed in principle that EU citizens in the UK and British citizens in the rest of the EU have the right to stay and work in their host countries and may not be discriminated against on grounds of nationality. The rights of their children and those of partners in existing “durable relationships” are also guaranteed under the commitments. In tandem, British courts will enforce the rights of EU citizens in the UK but can refer unclear cases to the European Court of Justice for eight years after withdrawal.

The single financial settlement is meant to reflect the UK’s share of the EU’s outstanding financial commitments (i.e. spending that was agreed while the UK was a member). The British media have labelled this as an “exit bill” or “divorce bill”, whilst the EU sees it as a matter of settling accounts. The joint commitments provide no figure for how much the UK is expected to contribute towards the financial settlement, but the document does set out how the bill will be calculated. The UK has also agreed in principle to continue to contribute to the EU budget as normal for two years after Brexit (in 2019 and 2020) and to pay its remaining liabilities such as pension contributions.

Though both the status of EU citizens in the UK and the financial settlement have garnered significant attention from British media, the Irish border has proved more problematic for the negotiating parties. An earlier agreement in respect of all three areas, mooted on 4 December, collapsed in a rather dramatic style due to the wording of the terms regarding the Irish border. This issue more than any other encapsulates the multi-faceted challenges posed by Brexit and the opposing interests pulling at the British Government. The UK’s negotiators are seeking to disentangle Northern Ireland from a sizable portion of the laws governing the relationship between the UK and Ireland without straining deep social and economic relations, offending parliamentary allies, or weakening the peace treaty underpinning it all. 

Why has the Irish border proved difficult to resolve?

The Republic of Ireland and the UK joined the European Community simultaneously in 1973. Following Brexit, the 310 mile border between Northern Ireland and the Republic of Ireland will become the only land crossing between the UK and EU.2 The border is punctuated by around 300 roads that vary from busy motorways to quiet country lanes. Save for a handful of towns, the area is largely rural, with few obvious physical features from which one might discern a border (such as rivers or boundary markers). Were the UK to leave the EU without an agreement, the UK will be treated by EU Member States (including Ireland) as any other foreign nation: persons entering Ireland will be subject to passport checks, customs checks, and tariffs. Both Britain and Ireland have indicated that they wish to avoid such a “hard” border for a number of reasons. 

Communities either side of the border are closely entwined. The free movement of people, goods, and capital has improved social and economic relations and moderated historical tensions. At present, approximately 30,000 people from either side cross the border every day for work without border checks, as do 6,000 load-carrying vehicles. Such freedom stands in stark contrast to the preceding era of military checkpoints along the Irish border during the Troubles, which was brought to a close by the ceasefire of 1994 and finally concluded in 1998 by the Good Friday Agreement. Under the agreement, both the UK and Republic of Ireland agreed to guarantee the peace, and to recognise:

"the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland."

                            – Article 1(vi) of the British-Irish Agreement, 1998

This confirms, in other words, that national identity in Northern Ireland (and the citizenship that flows from it) is a matter of choice, and that this choice is not binary. Any person born in Northern Ireland has an unqualified right to hold an Irish passport, a British passport, or each of the two.

The unique legal relationship between the UK and Ireland precedes membership of the EU. Since 1922, citizens of the UK and Ireland have been able to cross one-another’s borders without passport checks. This arrangement has been codified in the form of the Common Travel Area (CTA), which is still in place to this day. 

Further still, under English law the Republic of Ireland is not considered to be a “foreign country” and Irish citizens are not classed as “aliens” for immigration purposes.3  Irish citizens are treated by British authorities as if they have permanent permission to remain in the UK from the date they take up ordinary residence.4  This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, Irish nationals have more rights than other EU or EEA nationals resident in the UK.

Other EU and EEA nationals presently have rights of entry and residence in the UK and Ireland under the EU’s free movement laws, and may cross the border without presenting a passport (though neither the UK nor Ireland are signatories to the Schengen Agreement, relying instead on the CTA). Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship and integral to the European Single Market.5

The free movement of goods and capital between the UK and Ireland is also the result of the Single Market, which prohibits customs duties, limits on the volume or value of goods traded (quantitative restrictions), or restrictions on capital movements and payments between Member States.6

The combined effects of joint EU membership, the CTA, and the recognitions imposed by the Good Friday Agreement have led to a dilution of the Irish border, culturally, economically, and socially. On 26 June 2016, the UK voted to leave the first of these three political frameworks.

The Irish border post-Brexit

There is a widespread consensus across the EU that it is the UK’s responsibility to address the particular challenges caused for Ireland by Brexit. The European Commission’s Brexit task force paper states without equivocation, “The onus to propose solutions which overcome the challenges created on the island of Ireland by the United Kingdom’s withdrawal from the European Union and its decision to leave the customs union and the internal market remains on the United Kingdom.” Meanwhile, as an EU Member State Ireland has a seat on the European Council, which empowers the Irish Government to veto any proposed agreement between the UK and EU. This is not a special power reserved only for Ireland: the Council must unanimously approve the final Brexit agreement, meaning that any Member State (excluding Britain) may veto the entire deal.

In the 18 months since the referendum, the British Prime Minister, Theresa May, has made numerous promises to the public that the free movement of people will be halted once the UK leaves the EU. The British Government has also indicated that it intends to “take back control” as promised in the referendum by taking the UK out of the Customs Union and Single Market (a so-called “hard” Brexit). At the same time, however, the UK has also promised to uphold the Good Friday Agreement and do all it can to maintain peace and security in Northern Ireland; the imposition of border patrols of any sort is widely considered to be step back for the peace process, if not an infringement of Britain’s responsibilities as co-sponsor of the agreement. This places British negotiators in an extremely difficult position: without imposing any checkpoints that might call to mind the inspections in place during the Troubles, the UK must devise a replacement for the Single Market and Customs Union that would prevent the Irish border from becoming an unsecured backdoor for EU goods and immigrants to enter the UK.

This predicament is further complicated by the British Government’s parliamentary allies, the Northern Irish Democratic Unionist Party (DUP). Following the UK general election in 2017, the Conservative Party lost its majority in Parliament, relying on a “confidence and supply” deal with the DUP in order to stay in government. Under the deal, the DUP guarantees support for the minority Conservative government during parliamentary votes that are critical to its survival; in return, Mrs. May has promised “the ongoing commitment of the Conservative Party to the Union of Great Britain and Northern Ireland” (amongst other things). Despite holding only 10 seats in Westminster, the DUP has found itself garnering significant attention in the media with allegations that it is unnecessarily hindering the deal between the UK and the EU. The DUP is, at its core, a unionist party; the party’s stated goal is “to maintain and enhance Northern Ireland’s constitutional position within the United Kingdom”. Accordingly, DUP leader Arlene Foster has made her party’s position very clear:

"There can be no arrangements agreed that compromise the integrity of the UK single market and place barriers, real or perceived, to the free movement of goods, services and capital between Northern Ireland and the rest of the United Kingdom."

                                              – Arlene Foster MLA, 30 November 2017

For this reason, the DUP refused to support a draft agreement between the UK and EU on 4 December that would have positioned customs and immigration services at the ports and airports of Northern Ireland rather than the border. This, the DUP protested, would have effectively shifted the UK border to the Irish Sea, in turn setting Northern Ireland on a separate constitutional footing to the rest of the UK. The DUP stands firmly opposed to Irish nationalism, which advocates for the unification of Ireland. Any concession to the idea that Northern Ireland is part of the Republic of Ireland, or that the people of Northern Ireland share an identity with their southern neighbours, is unacceptable. With that in mind, it is perhaps unsurprising that the DUP would not concede any change to the laws regarding immigration and trade between Northern Ireland and Great Britain.

The agreement was successfully revised in the form of the joint commitments of 8 December, in which the parties agreed that there would be no hard border on the island of Ireland (including any physical infrastructure or related checks and controls). In order to pass the commitments, the DUP secured an important concession from the British Government that no new regulatory barriers will be allowed between Northern Ireland and the rest of the UK without the permission of the Northern Ireland Assembly. The commitments also make it clear that the whole of the UK, including Northern Ireland, will be leaving the Customs Union.

The British Government has previously held that a seamless, zero-tariff arrangement could be made possible by technology such as smart cameras that would be barely visible on the border. This has been implicitly criticised by the Commission, which has said that a “thorough understanding of the other issues beyond customs arrangements which are relevant to the border is also required in order to move forward to discussing solutions in the context of the dialogue with the United Kingdom.” 

"It is the responsibility of the United Kingdom to ensure that its approach to the challenges of the Irish border in the context of its withdrawal from the European Union takes into account and protects the very specific and interwoven political, economic, security, societal and agricultural context and frameworks on the island of Ireland."
                                                                                              - European Commission Guiding Principles for the Dialogue on Ireland/Northern Ireland

As an arrangement falling outside of the EU, the future of the CTA post-Brexit is not clarified by the joint commitments. Although the UK and Irish governments remain united in their desire to maintain the arrangement, the joint report simply states that the two nations may continue to make arrangements between themselves relating to the movement of persons between their territories, while fully respecting the rights of natural persons conferred by EU law. 

The joint commitments will now be submitted before the European Council meeting on 15 December 2017. The “general affairs council” will be attended by the remaining 27 Member States’ European affairs ministers in Brussels. The Council will consider whether enough progress has been made in negotiating the first stage (including the Irish border) for the two sides to begin negotiating the future free trade agreement.

It is still unclear exactly how the final Withdrawal Agreement will reconcile the parties’ commitment to an open border with the British Government’s promise to “take back control” without compromising the constitutional status of Northern Ireland. The joint report states that, in the absence of a later agreement, the UK will ensure “full alignment” with the rules of the Customs Union and Single Market that uphold the Good Friday Agreement – though quite what this means will not be certain until the terms are put to paper. What is clear is that a final agreement that appeals only to economic sensibilities will not be enough to resolve the immeasurable historical, social, and political hues colouring the attitudes on either side of the negotiating table.

Section I(2), “Core Principles”, European Council (Article 50) guidelines following the United Kingdom’s notification under Article 50 TEU

The British Overseas Territories of Gibraltar and the Sovereign Base Areas of Akrotiri and Dhekelia (Cyprus) will also share a land border with the EU, but neither are part of the United Kingdom of Great Britain and Northern Ireland and so deal with the EU on different terms

Section 2, Ireland Act 1949

Section 1(3), Immigration Act 1971

Article 3(2), Treaty on European Union (TEU); Article 21, Treaty on the Functioning of the European Union (TFEU); Titles IV and V, TFEU; and Article 45, Charter of Fundamental Rights of the European Union

Articles 26, 28-37, and 63-66, TFEU