Opinion

Alan Dukes: How to resolve the Brexit border conundrum

The UK’s need for a free trade agreement with the EU renders many of the border issues moot

A truck passes a Brexit billboard in Jonesborough, Co. Armagh, on the northern side of the border between Northern Ireland and the Republic of Ireland on January 17, 2017. Photo: Niall Carson/PA Wire

Thu Dec 7 2017 - 11:50

The current stand-off in the Brexit negotiations results from the inability of the UK Prime Minister to give satisfactory assurances to the EU in general and to Ireland in particular on the continuation and maintenance, post Brexit, of the fluidity, in every respect, of cross-border relations on this island. The Irish Government’s preference is to preserve and maintain the same fluidity in relations between the EU and the UK as a whole. Failing that, the requirement is to maintain the status quo with Northern Ireland.

The Irish Government’s second preference is not acceptable to the DUP, which objects to the idea that Northern Ireland might be considered as being in any way separate from the rest of the UK in matters which fall within the ambit of the EU. Arlene Foster has understandably said that it would be irresponsible on her part to favour economic relations with Ireland if the corollary were to accept a deterioration in the conditions of trading with the rest of the UK, which is by far the more important of the two market places for Northern Ireland. In this respect at least, Arlene Foster’s position makes economic sense for the whole population of Northern Ireland.

No UK government could agree to let go politically of Northern Ireland in any operational governance sense outside the terms of the Good Friday Agreement.

Thus, to put matters bluntly, the Irish Government’s fall-back position just won’t fly. The question then is whether its preferred outcome can be achieved, in order to avoid the train crash scenario of the hardest of hard Brexits.

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The UK Parliament is currently processing legislation to transpose into UK law the whole body of regulations, directives and rules adopted by successive formations of the EU since Ireland and the UK joined the EEC in 1973. If this is adopted without amendment to the economic and trade fundamentals, UK legislation will stand four square with that of the EU: there will continue to be full regulatory equivalence. The UK government has repeatedly said that it wants a “bold and ambitious free trade agreement” with the EU post Brexit. Full regulatory equivalence provides a solid basis for such an agreement, an agreement with zero tariffs and no technical obstacles to trade in the regulated areas.

The UK government could break the current impasse now by simply proposing such an agreement.

The EU could hardly refuse such an agreement, since it is in no Member State’s interest to step back from what has been achieved to date on the basis of policy agreements which have, in many cases, been very hard won.

Since such an agreement would cover “substantially all trade” between the two trading entities, it would be most unlikely to fall foul of WTO rules. It is inconceivable, in any case, that the WTO could realistically sustain an objection to the continuance of a major current of free trade.

With such an agreement in place, the UK, as a third country in the eyes of the EU, would be outside the jurisdiction of the European Court of Justice, free to adopt its own immigration rules and free to negotiate trade agreements with non-EU countries. In this way, stated objectives of the pro-Brexit campaign would be met.

It is important to recall why the current body of EU regulations and directives has been put in place. For the most part, it has been motivated by a concern to realise the benefits of free trade, to improve consumer protection, to improve environmental protection and to promote social values. There have been many overlaps between these various objectives. While there have been differences of emphasis between Member States on many of these issues, the current body of rules and directives constitutes an agreed body of action to which all have subscribed.

Nothing is immutable: policy emphasis can change, new requirements can emerge, policy objectives evolve. The EU27 may, in the future, want to add to or otherwise modify what is currently in force. In the same way, the UK, post Brexit, may want to change some standards or adopt new ones. In practice, I suspect that neither the EU27 nor the current or future UK government will see advantage in rowing back on what now exists with all of its advantages: both are likely to experience similar pressures for further development. Given the complex supply chains and other relationships between UK industry and industry elsewhere in the EU, it is unlikely that there will be an appetite for major changes in the foreseeable future.

In the event that either side wished to make changes in the future, the other side would have to retain the right to take appropriate action in response. In any case, there would be a requirement for an agreed dispute resolution procedure. There are many precedents for structures to effect such procedures.

Similar considerations would apply in the case of new UK trade agreements with non-EU countries. In reality, this is unlikely to be a major concern in the foreseeable future. The UK will have a lot of work to do simply to maintain the access it currently has to the third countries with which the EU currently has trade and investment agreements. The current US administration is not of a mind to contemplate new, expansive trade agreements with any of its partners. Prime Minister Modi in India has made it clear to Prime Minister May that any new Anglo-Indian trade agreement will have to be accompanied by what he regards as satisfactory arrangements for access to the UK by Indian nationals. In short, the atmosphere for “bold and ambitious free trade agreements” for the UK outside the EU is not propitious.

The UK has vital interests in other areas also. Euratom and safety in nuclear energy generation, the European Aviation Safety Authority and open skies provisions, Europol and police and security cooperation are just some cases in point.

Agriculture and the agri-food complex will pose knotty problems, with or without Brexit, and further developments in important features of the Common Agricultural Policy are now being contrmplated.

All of these matters would fall to be negotiated in the second phase of the Brexit talks in the context of a transition period which should logically take the form of a “standstill” during which current rules should continue to apply.

Mrs. May should be encouraged, quietly and behind the scenes, to follow the logic of her first thoughts and make the bold proposal.

Alan Dukes is a former leader of Fine Gael and Minister for Finance

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