Ireland’s trickiest Brexit issue is the future of the Border

In the run-up to Britain's EU referendum in June, the Government made a strenuous effort to draw attention to the implications of Brexit for Ireland, for North-South relations, and for the British-Irish relationship.

It had little impact, and although the British government has insisted since the referendum that it wants to preserve the Common Travel Area and “avoid a return to hard borders”, it has said little about how these aims might be achieved.

The House of Lords EU committee's report Brexit: UK-Irish relations is the most comprehensive British analysis to date of the implications for Ireland of Britain's withdrawal from the EU.

And it concludes that the most effective means of limiting the damage is for the British and Irish governments to negotiate an ambitious bilateral agreement, to be approved by the rest of the EU and incorporated into the final Brexit deal at the end of negotiations under article 50 of the Lisbon Treaty.

Such a deal would aim to maintain the open Border between North and South, as well as of the ease of movement across the sea boundary between Northern Ireland and the rest of the UK.

It would seek to preserve the current Common Travel Area arrangements; the right of free movement of UK and Irish citizens between the jurisdictions, and maintain the right of UK and Irish citizens to live and work in each other’s countries; and the rights to Irish (and therefore EU) citizenship for the people of Northern Ireland.

If the UK leaves the customs union, there should be a customs and trade arrangement between Britain and Ireland, subject to the agreement of the EU institutions and member states.

And the Northern Ireland Executive should be allowed to exercise devolved powers in making decisions about the free movement of EU workers within its jurisdiction.

Reaffirm

Both governments would reaffirm their commitment to the Good Friday agreement and subsequent agreements, including continued support for existing cross-border co-operation, and cross-border projects should continue to be eligible for EU funding programmes.

The British and Irish governments share most of these objectives and Michel Barnier, the European Commission’s chief Brexit negotiator, suggested this week that Brussels is also alert to the particular issues Brexit raised for Ireland.

“The UK’s decision to leave the European Union will have consequences, in particular for what are the EU’s external borders today. All I can say is that I am personally extremely aware of the importance of this particular topic.

“We will, throughout these negotiations with the UK and of course with Ireland, do our utmost to find a way to preserve the success of the Good Friday process and of course retain the dialogue there. That’s all I can say now,” he said.

Michael Jay, a former British diplomat who is a member of the Lords EU committee, believes that Theresa May and Enda Kenny must take the lead in negotiations towards a bilateral deal.

The European institutions and other EU member states would have to be kept in the loop as negotiations progressed, to ensure that the British-Irish deal is likely to be approved as part of the final Brexit agreement.

Perhaps the trickiest issue concerns the future of the Border after Britain leaves the EU, particularly if it also leaves both the single market and the customs union.

Few in Britain now expect to remain in the single market, and although the question of customs union membership is more uncertain, political pressures are pushing towards leaving it.

This is not least because, if Britain remains in the customs union, it will not be able to negotiate new trade deals with other countries around the world.

Some politicians, including Northern Ireland’s First Minister Arlene Foster, have suggested that technological advances could minimise the impact of customs checks on the Border to the point of making them almost unnoticeable.

Unacceptable

The experience on other borders, such as that between Norway and Sweden, suggests that technology cannot remove the need for some kind of checks.

As former taoiseach John Bruton pointed out to the committee, the agreement between Norway and Sweden allows officials to check premises in one another’s country – a solution which might be unacceptable on both sides of the Border.

“The experience at other EU borders shows that, where a customs border exists, while the burden and visibility of customs checks can be minimised, they cannot be eliminated entirely. Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border,” the committee concludes.

The only way to keep the Border open, it suggests, is either for the UK to remain in the customs union or for the EU to approve a special, bilateral trade and customs deal for Britain and Ireland.

Under the Common Commercial Policy, the EU has exclusive competence to negotiate trade agreements with third countries and, following Brexit, the UK will become a third country for this purpose.

With enough goodwill, the EU could perhaps be persuaded to bend its rules on the customs union and other issues, such as the rights of British and Irish people to claim social welfare in both countries.

But the task of concluding a bilateral agreement is complicated by the political context in Northern Ireland, which has made it difficult for Sinn Féin and the Democratic Unionist Party to agree a common approach in the Northern Ireland Executive on Brexit.

The two parties were on opposing sides in the referendum and each has approached events since the referendum through the prism of their unionism or nationalism.

The Lords committee does not directly criticise the unionists’ decision to stay away from the all-island Civic Dialogue, although it praises the initiative as a useful forum.

But it is blunt about the responsibility shared by the DUP and Sinn Féin to put the interest of Northern Ireland ahead of political considerations in the months ahead.

“As the two constituent parts of the Northern Ireland Executive both parties have a duty to the communities they represent to work together and show leadership.

“They need to ensure, as Brexit negotiations begin, that Northern Ireland’s interests are effectively communicated to the UK government, the Irish Government, to the EU and to other member states,” it says.