Legal Options for Avoiding a Hard Border Between NI and ROI

Critically evaluate the legal options available to the EU and the UK for avoiding a ‘hard border’ for goods moving between Northern Ireland and the Republic of Ireland after Brexit.

[Note: within this task, the phrase ‘hard border’ between Northern Ireland and the Republic of Ireland means what the UK Government has defined it to mean, namely ‘any physical border infrastructure in either the United Kingdom or Ireland, for any purpose’.]

In the midst of the ongoing Brexit negotiations between the United Kingdom (UK) and European Union (EU), the issues over the future of the Irish border have been in turmoil. The Seanad Committee predict the withdrawal of the UK could adversely impact up to 3.5% of Ireland’s GDP^[1]. Should Theresa May choose to plan a hard Brexit, the UK’s trade access to the EU’s single market may be compromised to retain full control of her borders. This poses a significant threat to Ireland (ROI), making this a phase one matter. This piece will propose the stance that, although the complete eradication of a hard border is improbable, there are certain methods available to prevent the worst-case scenario, and instead implement a reciprocal solution to the problems faced by the three states. The internal and external trade between the ROI and NI is not only of critical importance to NI’s economy, but is also arguably “the most tangible symbol of the peace process”,^[2] highlighting the seriousness of avoiding a physical boundary. Two legal options are considered and evaluated in this piece. Firstly, NI remaining in the EU Customs Union (EUCU) and Common Transit Convention (CTC) is suggested to validate tariff-free cross border commerce. Secondly, the German Model solution is put forward to remedy this ‘hard border’ predicament, based on a ‘one country, two territories’ logic, which permits ‘all-island trade’. This essay ultimately concludes that the complete avoidance of a hard border is unlikely, though these two solutions could aid in reducing it to a large extent.

Necessity of a hard border:

The UK will be unable to avoid certain elements of a ‘hard border’. Third countries connected to the European Single market still contain traces of physical border with neighbouring member states^[3], strengthening this position. The border between Sweden and Norway exemplifies this, where Norway’s membership to the European Economic Area does not alleviate the fact that the custom checkpoints at its border constitute a concrete frontier.^[4] It is vital that there be some shape or form of infrastructure to verify goods crossing borders, as the absence of this implementation may encourage a culture of illicit trade and dent the exchequer.^[5] A customs provision is vital in avoiding “either a hard border or a smugglers’ paradise”.^[6] Therefore, this transforms the discussion to unravelling the extent to which the United Kingdom can eschew a hard border. The situation in Cyprus demonstrates how the EU have defied the normal regulations set out in EU law to acknowledge the circumstances of certain border areas. The European Council regulation under Article 2 of Protocol 10 to the Act of Accession was enacted to assist commerce in external territory to the Union in 2004^[7]. Despite this, the panacea for the border arguably “cannot be based on a precedent”^[8]. As the 1998 Agreement^[9] was composed with the assumption that Ireland and the UK would remain member states of the EU, the answer to this dilemma must involve a pliable solution^[10] as the border epitomises a “unique and unprecedented set of circumstances”^[11].

This essay agrees with Westminster’s favoured method of reducing a hard border through regulatory equivalence^[12] which permits free flow of trade. Aside from regulatory comparability between both UK and EU law, there is an array of means that can arguably be used to accomplish this. The improvement of the current Common Travel Agreement (CTA) is one avenue that could be taken. However, the CTA will fail to alleviate the impact of a hard Brexit in trade relations, as it relates only to the movement of persons, and not of goods^[13].

Devolution of powers

It is possible that NI could remain part of the EUCU whilst the rest of the UK withdraws^[14]. It has been submitted that this be done through the formation of a select legal body elected by the NI Parliament. The delegated power from British Parliament to this body whilst also being regulated by the NI Parliament can preserve and expedite a consensus between ROI and NI, whilst also liaising with the CTC. NI’s continued membership in the EUCU would also render commerce along the border to be tariff-free^[15]. Moreover, the agreement with the CTC would be established as formal legislation following approval from the NI Parliament. In turn, this will minimise the execution of a ‘hard’ border through the regulatory compliance along the border.

This devolution could be seen as beneficial to both NI and ROI, as political disagreement is plausible where various areas are dealt with differently^[16]. With Ireland being NI’s largest trading partner^[17], NI face significantly more repercussions. Tension is foreseeable between Westminster and NI following the ROI, NI and the UK’s arranged liaison on preserving the ‘peace process’ and ‘invisible border’^[18] settled in the Belfast Agreement (BA)^[19]. Thus, to uphold the principles that the BA[20] promotes, the delegation of powers could reduce the chances through assigning power to NI to strengthen commerce relations with Ireland. This in turn would cultivate an optimum treaty that would converge suitably to the country’s needs. This can be shown through Westminster’s proposal for a ‘cross-border trade exemption’ for small and medium-sized businesses, with the intention to enable firms to avoid Irish custom checks^[21]. The arduous nature of this suggestion renders it impractical with the issues of what sizes of businesses and areas of trade would be permissible under this notion^[22]. The implementation of this method will not only maintain the affluence in NI, but would also avoid tension with Westminster, proving to be a route to cultivate regulatory conformity with the EU. This is arguably a suitable avenue that could lead to the alleviation of a hard border.

This being said, the agreements made through the devolution could result in a discrepancy between the UK and NI, resulting from the supremacy of EU law on the legislation as the end product. Varying administrative procedures between states creates a periphery^[23], so there is a probability that this ‘physical border infrastructure’ could be established on the NI-British side instead of the NI-Irish border, due to the varying laws of NI and Britain. This probability is amplified through NI’s membership of the CTC and EUCU. These settlements may arguably put pressure on NI legislation to adopt the principles of EU Law in attempt to dilute a hard border and preserve the advantages of trade the agreements offer to NI. This demonstrates that the delegation of these powers should be stabilised optimally to verify NI can constructively supply synchronised convention amongst both the EU and British legislation that control it. Alternatively, enhanced EEA membership exclusively for NI would not only be in line with the BA[24], but could also aid in NI facilitating a soft border.

“One country, two territories” – The German Model

The German model solution is formed on a trade agreement between West and East Germany prior to its reconciliation in 1990, which is a protocol to the EU treaties permitting ‘All-island trade’^[25]. Following the signing of the Treaty of Rome^[26], West Germany negotiated a settlement where commerce between both sides of the country were regarded as ‘internal’^[27]. Under this model, NI would follow the ‘one country, two territories’ notion similar to that in the German Basic treaty^[28]. Trade between NI and Ireland would  be defined under this as  “all-island trade”^[29] within the boundaries of the singular economy. Thus, corresponding to the all-island state currently occupying the economy across numerous branches^[30]. This promotes partnership between the countries, as it enables them to draw up agreements on various particulars of the affinity. This is demonstrated in the German scenario, where East German philanthropic concessions were exchanged for the financial recompense of West Germany^[31], which can be duplicated in the case of NI and ROI. This method can not only stabilise the cross-border commerce for smaller businesses, but also regulate affluence in the country’s central trading stream^[32]. This essay proposes that such agreements should be conducted through the liaison of both the North and South Ministerial and British-Irish Council’s, which would uphold the BA^[33] and promote co-operation through this joint decision in all three states. The Seanad Committee believe this to be the most plausible solution to remedy the hard border issue, as this precedent could be modified slightly to denote NI being under UK law, but being a second of two states on the island. It is also identified that this settlement existed prior to the inception of the Single Market where it deconstructed various obstacles to EU commerce. Instead, this produced an array of “harmonising”^[34] regulations preceding the formation of the Customs Union^[35], which could lead to a softer border.

The agreements made through taking the German Model as precedent arguably generates a culture of back-door entry into UK trade, diminishing the value and subverting the pacts Westminster has made with various other member states prior to this^[36]. Should NI adopt a more lenient approach to trade border restrictions, it could inspire other countries to employ the same treatment under the TFEU^[37]. Abuse of these lower restrictions on trade could follow, rendering this strategy arguably inefficient to diluting a hard border.

As Ireland maintains the status as a member state, these negotiations should be counterbalanced against the TFEU^[38]. Article 4 establishes shared competences[39], where countries in the EU are able to formulate laws and adopt binding acts where the EU does not or chooses not to implement its own proficiency^[40]. This can be applied in regional policy (economic, social and territorial cohesion)^[41] and in agriculture and fisheries^[42]. The dependency of NI on Ireland to maintain its economic prosperity could potentially spur the EU to act with clemency towards the custom tariff’s. However, the bigger picture suggests that revising this taxation could hamper trade negotiations between NI and ROI, demoting fair commerce. The establishment that interference with the economies of Member States must be avoided “to ensure rational development and expansion of consumption within the Union”^[43]. This further aggrandises the EU’s position to sanction Ireland to create an agreement with NI. Article 28 imposes this excise over all member states^[44], rendering it problematic for NI to counter the Tariff through negotiations, which in turn correlates positively to diluting the chances of a hard border.

Conclusion:

In conclusion, it is improbable that the EU and the UK will avoid a ‘hard border’ completely. This essay has presented two legal options available to the EU and the UK which could dilute the worst-case scenario.

NI remaining in the EUCU and CTA whilst the rest of the UK leaves has been presented as the first method. The regulation of this body of legal actors by the NI Parliament can aid in preserving an agreement between ROI and NI, which would also regulate trade along the border and render it tariff-free. Though this procedure excels in producing regulatory conformity, construction of infrastructure is inexorable due to the varying administrative methods used by each member state.

Taking the German model as precedence is the second legal option discussed. This has proved to be the optimum solution for reducing the chances of a ‘hard border’ between NI and the ROI. Despite this method potentially diluting the ‘hard border’ through relaxing cross border policing, it is criticised for being abused by member states in gaining back-door access to the UK trade market. Although some form of physical framework would be required to fully facilitate the adoption of this model, the espousal of this skeleton would satisfy the requirements set out in the TEU[45]. It would also coincide with the BA[46], promoting a culture of conventionality.

The liaison of ROI, NI and Britain in creating a frontier trade pact could also act as a foundation for correlating both British and EU Law in the ROI, rendering it the more effective solution. A ‘hard’ border need not mean the eradication of economic integration in Ireland entirely, though “friction will be inevitable”^[47] which is shown through the complex nature of the methods described in this piece.

Bibliography:

Books:

• Aughey A, The Politics Of Northern Ireland (2nd edn, Routledge 2007)
• Flockton C, E Kolinsky, R Pritchard, The New Germany In The East (F Cass 2000)

Legislation:

• Act of Ascension (2004) OJ 2 161/30, Art.2(10)
• Bunreacht na hÉireann 1937
• The Basic Treaty (Grundlagenvertrag) 1972
• The Belfast Agreement 1998
• Treaty of Rome 1957
• Treaty on the Functioning of the European Union 2007
• Treaty on European Union 2007

Journal Articles:

• Braniff MS Whiting, ‘Deep Impact: The Fiction Of A Smooth Brexit For Northern Ireland’ (2017) 23 Juncture
• De Mars S and others, ‘Policy Paper: Northern Ireland And The Brave New World Of Brexit’ [2017] SSRN Electronic Journal
• Komarova M, Brexit And The UK-Ireland Border: Briefing Paper 1 [2017] Centre for Cross Border Studies
• Seanad Special Select Committee, Withdrawal of The United Kingdom from The European Union [2017] Houses of Oireachtas
• Tonge J, ‘The Impact Of Withdrawal From The European Union Upon Northern Ireland’ (2016) 87 The Political Quarterly

Government Publications:

• HM Government, Northern Ireland And Ireland: Position Paper (2017)
• HM Government, The United Kingdom’s exit from and new partnership with the European Union (2017)

Websites:

• ‘Softening A Hard Border: Lessons From North America For Post-Brexit Ireland’ (LSE BREXIT, 2018) accessed 23 January 2018

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^[1] Prof Alan Ahearne, NUI Galway, Dáil Symposium on European Union Affairs, 22 September 2016

^[2] 4 ‘Ireland and the negotiations on the UK’s withdrawal from the European Union: The Government’s Approach’, May 2017.

^[3] S Mars, C Murray, A O’Donoghue, B Warwick, Policy Paper: NI and the Brave New World of Brexit (2017) SSRN

^[4] S Mars, C Murray, A O’Donoghue, B Warwick, Policy Paper: NI and the Brave New World of Brexit (2017) SSRN

^[5] Jonathan Tonge, ‘The Impact Of Withdrawal From The European Union Upon Northern Ireland’ (2016) 87 The Political Quarterly.

^[6] Jonathan Tonge, ‘The Impact Of Withdrawal From The European Union Upon Northern Ireland’ (2016) 87 The Political Quarterly.

^[7] Act of Ascension (2004) OJ 2 161/30, Art.2(10)

^[8] HM Government, NI and Ireland: Position Paper (2017)

^[9] The Belfast Agreement 1998

^[10] HM Government, NI and Ireland: Position Paper (2017)

^[11] ‘Ireland and the negotiations on the UK’s withdrawal from the European Union: The Government’s Approach’, May 2017.

^[12] HM Government, NI and Ireland: Position Paper (2017)

^[13] Seanad Special Select Committee, Withdrawal of the United Kingdom from the European Union (2017) Houses of Oireachtas

^[14] Máire Braniff and Sophie Whiting, ‘Deep Impact: The Fiction Of A Smooth Brexit For Northern Ireland’ (2017) 23 Juncture.

^[15] Jonathan Tonge, ‘The Impact Of Withdrawal From The European Union Upon Northern Ireland’ (2016) 87 The Political Quarterly.

^[16] M Komarova, Brexit and the UK-Ireland Border: Briefing Paper 1 (2017) The Centre for Cross Border Studies

^[17] NI Broad Economy Sales and Exports Statistics (BESES), accessed 2017

^[18] HM Government, NI and Ireland: Position Paper (2017)

^[19] The Belfast Agreement 1998

[20] The Belfast Agreement 1998

^[21] HM Government, NI and Ireland: Position Paper (2017)

^[22] S Mars, C Murray, A O’Donoghue, B Warwick, Policy Paper: NI and the Brave New World of Brexit (2017) SSRN

^[23] S Mars, C Murray, A O’Donoghue, B Warwick, Policy Paper: NI and the Brave New World of Brexit (2017) SSRN

[24] The Belfast Agreement 1998

^[25] Seanad Special Select Committee, Withdrawal of the United Kingdom from the European Union (2017) Houses of Oireachtas

^[26] Treaty of Rome 1957

^[27] Treaty of Rome, Protocol Concerning Internal German Trade and Connected Problems (1957)

^[28] The Basic Treaty (Grundlagenvertrag) 1972

^[29] Seanad Special Select Committee, Withdrawal of the United Kingdom from the European Union (2017) Houses of Oireachtas

^[30] C Flockton, E Kolinsky and R M. O Pritchard, The New Germany In The East (F Cass 2000).

^[31] C Flockton, E Kolinsky and R M. O Pritchard, The New Germany In The East (F Cass 2000).

^[32] HM Government, NI and Ireland: Position Paper (2017)

^[33] The Belfast Agreement 1998

^[34] John Sheridan, Border Communities Against Brexit, Evidence to the Committee, 25 May 2017.

^[35] Seanad Special Select Committee, Withdrawal of the United Kingdom from the European Union (2017) Houses of Oireachtas

^[36] Arthur Aughey, The Politics Of Northern Ireland (2nd edn, Routledge 2007). 

^[37] Treaty on the Functioning of the European Union 2007

^[38] HM Government, The United Kingdom’s exit from and new partnership with the European Union (2017)

[39] Treaty on the Functioning of the European Union 2007, Article 4

^[40] Treaty on the Functioning of the European Union 2007, Article 4

^[41] Treaty on the Functioning of the European Union 2007, Article 4(2)(c)

^[42] Treaty on the Functioning of the European Union 2007, Article 4(2)(d)

^[43] Treaty on the Functioning of the European Union 2007, Article 32(d)

^[44] Treaty on the Functioning of the European Union 2007, Article 28(1)

[45] Treaty on European Union 2007

[46] The Belfast Agreement 1998

^[47]‘Softening A Hard Border: Lessons From North America For Post-Brexit Ireland’ (LSE BREXIT, 2018) accessed 23 January 2018.