Professor Steve Peers, University of Essex

The Brexit withdrawal agreement negotiations are in danger of collapsing due to disagreements on managing the Irish border. The UK government’s lack of concrete proposals for customs away from the border is concerning. Additionally, the UK Foreign Secretary’s inability to differentiate between a simple congestion charge and the complexities of border control is disappointing.

In anticipation of the European Commission’s upcoming proposals, I have drafted a text (Annex 1) addressing the Irish border in the withdrawal agreement. This draft aligns with the December joint report (analyzed here) as closely as possible. For reference, Annex 2 contains the relevant excerpt from the Joint Report.

I have remained faithful to the joint report, except for one irreconcilable contradiction. Some aspects seemed like political commitments, so I suggest including them as Joint Declarations or UK-only declarations within the withdrawal agreement’s Final Act, a common practice in treaty drafting.

Regarding “regulatory alignment,” my text positions it as the third option, suggesting that detailed negotiations be postponed until after Brexit. This acknowledges the difficulty of negotiating the first or second option before Brexit and minimizes the risk of a collapse. Such a collapse would jeopardize border control, citizens’ rights for those who moved before Brexit, and both sides’ economies in a “no deal” scenario.

However, delaying “regulatory alignment” discussions hinges on the UK fully committing to the first option. This means proposing and implementing a customs facilitation treaty that prevents border checks and safeguards North-South cooperation in Ireland post-Brexit.

If this proves impossible, the UK government must acknowledge that campaign promises regarding this issue were false. Blaming the EU, Ireland, or Remain voters (whose concerns were disregarded as “scaremongering”) is unacceptable.

Claims of a “1973 reset” and “no controls before” disregard a crucial fact: the UK and Ireland have always been aligned on EEC/EU membership. Furthermore, Ireland leaving the EU – opposing the will of 88% of its voters – is highly improbable.

I have also provided alternative wording to consider the positions of both the current UK government and a potential Labour government (discussed in my comments on Jeremy Corbyn’s recent speech).

Barnard & Peers: chapter 27

Photo credit: Forbes

Annex 1 – proposed text of withdrawal agreement and declarations

Article 1

The United Kingdom’s withdrawal from the European Union shall not hinder the implementation of the 1998 Good Friday or Belfast Agreement, including its subsequent agreements and arrangements, and the effective operation of all institutions and bodies established under them.

This reflects part of paragraph 43 of the Joint Report, but unlike the report, it doesn’t solely refer to the UK’s obligations.

Article 2

The United Kingdom and the European Union shall not install any physical infrastructure or associated checks and controls on the border between Northern Ireland and the Republic of Ireland.

This enforces the “no hard borders” aspect of paragraph 43 of the Joint Report. Unlike the report, it doesn’t solely refer to the UK’s obligations.

Article 3

1. This Part does not prejudice any agreement on the future relationship between the European Union and the United Kingdom.

2. This Part specifically addresses the unique situation of the island of Ireland.

This partially reflects paragraph 46 of the Joint Report. While the paragraph states these commitments “are made and must be upheld in all circumstances,” this contradicts its statement that the commitments “will not pre-determine the outcome” of future talks. It is debatable whether parties can bind themselves to future agreements in a treaty. The “unique circumstances” provision suggests a possible relaxation of the EU27’s “no cherry picking” rule.

Article 4

1. After the [transitional] [implementation] period, a [customs cooperation] [customs union] agreement, negotiated beforehand between the United Kingdom and the European Union, will ensure the obligation in Article 2. This includes any provisions needed to prevent physical infrastructure or associated checks and controls at the border and protect North-South cooperation in Ireland.

This reflects the first option in paragraph 49: “The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship”. The first set of brackets acknowledges the different terms used by the UK government and the EU27 to describe the post-Brexit period. The second set of brackets offers alternative wording reflecting the stances of the current UK government and a potential future Labour government, respectively. See also the proposed Joint Declaration 3.

2. If the agreement mentioned in paragraph 1 isn’t reached, the United Kingdom will propose solutions for the unique situation of the island of Ireland. Both parties will negotiate in good faith based on these proposals to ensure the absence of physical infrastructure or associated checks and controls at the border and protect North-South cooperation.

This mirrors the second option in paragraph 49.

3. If no agreement is reached under paragraphs 1 or 2, the United Kingdom will maintain full alignment with Internal Market [and the Customs Union] rules that currently or in the future support North-South cooperation, the all-island economy, and the 1998 Agreement. The Joint Committee will define these rules within a year of the exit date.

The bracketed phrase would be omitted under a Labour government. This reflects the third option in paragraph 49, adding an obligation to define the relevant rules within a year of Brexit Day. This allows for a clearer understanding of potential agreements from options one or two. Delaying this discussion until after Brexit Day is justified because: a) it’s premature without discussing other options; and b) it increases the risk of no withdrawal agreement, jeopardizing the open border goal and other objectives.

4. Both parties will establish mechanisms to implement and oversee any arrangements that safeguard the integrity of the EU Internal Market [and the Customs Union].

This is based on paragraph 51 of the Joint Report, although the paragraph’s exact intention is unclear. The bracketed phrase would be omitted under a Labour government.

Declarations

Joint Declarations

1. Both parties respect the 1998 Agreement’s provisions regarding Northern Ireland’s constitutional status and the principle of consent. This withdrawal agreement fully aligns with these provisions. The UK continues to respect and support Northern Ireland’s position within the United Kingdom, consistent with the principle of consent.

This is based on paragraph 44 of the Joint Report.

2. Cooperation between Ireland and Northern Ireland is crucial to the 1998 Agreement and is essential for reconciliation and normalized relations on the island. Both parties acknowledge the roles, functions, and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including its cross-community provisions) outlined in the 1998 Agreement.

This is based on paragraph 47 of the Joint Report.

3. To enact Article 4(1), both parties agree to formal negotiations, starting as soon as possible after the exit date, based on the draft [customs cooperation] [customs union] agreement proposed by the United Kingdom.

This would solidify the first option in paragraph 49 of the Joint Report, assuming the UK presents a draft treaty as soon as possible in 2018. The bracketed options reflect the positions of the current UK government and a potential future Labour government, respectively.

4. Both parties acknowledge that the 1998 Agreement recognizes the right of all people in Northern Ireland to identify as Irish, British, or both. Irish citizens in Northern Ireland will retain their EU citizen rights, even while residing there. This agreement respects and doesn’t prejudice the rights, opportunities, and identity associated with EU citizenship for these individuals.

This is based on paragraph 52 of the Joint Report. That paragraph mentions examining arrangements to give effect to the ongoing exercise of EU rights, opportunities, and benefits in the next phase of negotiations, but the specifics are unclear.

5. Both parties recognize that the UK and Ireland may maintain arrangements for movement of people between their territories (Common Travel Area), while fully respecting EU law regarding the free movement of EU citizens, in accordance with relevant Protocols in the EU Treaties.

This is based on the first part of paragraph 54 of the Joint Report, with an added reference to primary EU law.

6. According to Part X [financial settlement], both parties will honor commitments to the PEACE and INTERREG funding programs under the current financial framework. Future support possibilities will be viewed favorably, as per Part Y [[transitional] [implementation] period].

This is based on the first part of paragraph 55 of the Joint Report, with added cross-references to other parts of the agreement. It’s reasonable to expect the UK to be consulted on any future peace program proposal during the transition/implementation period, given its likely proposal in spring 2018 and potential adoption after Brexit.

UK Declarations

1. The United Kingdom respects Ireland’s continued EU membership and all its associated rights and obligations, particularly its place in the Internal Market and the Customs Union. As the UK exits the European Union’s Internal Market and [Customs Union][enters into a Customs Union with the European Union], the UK reaffirms its commitment to the integrity of its internal market and Northern Ireland’s place within it.

This is based on paragraph 45 of the Joint Report. The bracketed options reflect the positions of the current UK government and a potential Labour government, respectively.

2. The United Kingdom remains dedicated to protecting and supporting continued North-South and East-West cooperation across all political, economic, security, societal, and agricultural areas and frameworks, including the operation of North-South implementation bodies.

This is based on paragraph 48 of the Joint Report.

3. Should Article 4(3) of this agreement come into effect, the United Kingdom will ensure that no new regulatory barriers emerge between Northern Ireland and the rest of the UK, unless the Northern Ireland Executive and Assembly agree that separate arrangements are appropriate for Northern Ireland, in line with the 1998 Agreement. The UK will always guarantee the same unhindered access for Northern Irish businesses to the UK internal market.

This is based on paragraph 50 of the Joint Report.

4. The United Kingdom pledges to ensure that no rights are diminished due to its withdrawal from the European Union. This includes protection against discrimination outlined in EU law. The UK commits to supporting the efforts of institutions and bodies established by the 1998 Agreement in upholding human rights and equality standards.

This is based on paragraph 53 of the Joint Report. It’s worth noting whether this was intended as a binding obligation, in which case it should be reciprocated.

5 The United Kingdom confirms and accepts that the Common Travel Area and its associated rights and privileges can continue without impacting Ireland’s obligations under EU law, specifically regarding the free movement of EU citizens.

This is based on the second part of paragraph 54 of the Joint Report.

Annex II – joint report text

42. Both Parties affirm that the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation. They agree that the Good Friday or Belfast Agreement reached on 10 April 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi-party negotiations (the ‘1998 Agreement’) must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement.

43. The United Kingdom’s withdrawal from the European Union presents a significant and unique challenge in relation to the island of Ireland. The United Kingdom recalls its commitment to protecting the operation of the 1998 Agreement, including its subsequent implementation agreements and arrangements, and to the effective operation of each of the institutions and bodies established under them. The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.

44. Both Parties recognise the need to respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent. The commitments set out in this joint report are and must remain fully consistent with these provisions. The United Kingdom continues to respect and support fully Northern Ireland’s position as an integral part of the United Kingdom, consistent with the principle of consent.

45. The United Kingdom respects Ireland’s ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland’s place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland’s place within it, as the United Kingdom leaves the European Union’s Internal Market and Customs Union.

46. The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.

47. Cooperation between Ireland and Northern Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland. In this regard, both Parties recall the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including its cross-community provisions) as set out in the 1998 Agreement. The two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework. Therefore, the United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation.

48. The United Kingdom remains committed to protecting and supporting continued North-South and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South implementation bodies.

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will 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 allisland economy and the protection of the 1998 Agreement.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

51. Both Parties will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market and the Customs Union.

52. Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits.

53. The 1998 Agreement also includes important provisions on Rights, Safeguards and Equality of Opportunity for which EU law and practice has provided a supporting framework in Northern Ireland and across the island of Ireland. The United Kingdom commits to ensuring that no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law. The United Kingdom commits to facilitating the related work of the institutions and bodies, established by the 1998 Agreement, in upholding human rights and equality standards.

54 Both Parties recognise that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area), while fully respecting the rights of natural persons conferred by Union law. The United Kingdom confirms and accepts that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under Union law, in particular with respect to free movement for EU citizens.

55. Both Parties will honour their commitments to the PEACE and INTERREG funding programmes under the current multi-annual financial framework. Possibilities for future support will be examined favourably.

56. Given the specific nature of issues related to Ireland and Northern Ireland, and on the basis of the principles and commitments set out above, both Parties agree that in the next phase work will continue in a distinct strand of the negotiations on the detailed arrangements required to give them effect. Such work will also address issues arising from Ireland’s unique geographic situation, including the transit of goods (to and from Ireland via the United Kingdom), in line with the approach established by the European Council Guidelines of 29 April 2017.