A week is a long time in politics, as they say. After a ‘Manic Monday’ in Brussels, Belfast, Dublin, and London, and the failure to resolve all of the key issues in Phase One of the Brexit negotiations, Friday heralded a breakthrough which will now see talks entering Phase Two – after the European Council meeting on the 14 and 15 of December. It was the question of the border between the Republic of Ireland and Northern Ireland which was the outstanding issue. The economies and politics of both jurisdictions are heavily intertwined, and Britain, the EU and the Republic of Ireland agree that there can be no return to the hard border of the past. So why was there a potential collapse in negotiations?
The great Brexit breakthrough – solving the border question
Phase One of Brexit negotiations has focused on three key areas: the settlement of the UK’s financial obligations, citizens’ rights for EU27 citizens in the UK and vice versa, and ensuring the peace process of Northern Ireland is not compromised. On Monday morning, a much-anticipated breakthrough in the negotiations was in sight, as PM Theresa May travelled to Brussels to meet with European Commission President Jean-Claude Junker.
These talks are officially between the EU and the UK delegations, but an Irish delegation has formed part of these negotiations as the issue of the border between the Republic of Ireland and Northern Ireland became all the more pertinent. These intense bilateral talks between British and Irish officials on the border question led to a breakthrough which determined that the deal agreed on the future relationship between the EU and the UK would avoid a hard border between the two jurisdictions. In doing so, a guarantee that there would be no return to a hard border would in principle be central to Phase Two of the Brexit negotiations – the future trading relationship.
A war of words?
The manner in which the breakthrough had been achieved was to swap a pledge for “no regulatory divergence” in the text for a promise of “regulatory alignment”. For Britain, “alignment” was regarded as weaker than “no divergence”, while for the Republic of Ireland, it was understood to mean that Britain had made a promise that there would be no hard border – which implied a special status for Northern Ireland. But for Northern Ireland’s Democratic Unionist Party (DUP), a political party that defends the Union with the UK and provides the current Conservative Party with its majority in government under a Confidence and Supply Agreement, this is problematic. The DUP campaigned for Brexit and has insisted that Northern Ireland will leave the EU on the same terms as the rest of the UKin March 2019.
Politics trumps economics
The problem of the border question is threefold. Firstly, the EU must protect the integrity of the EU single market and the four freedoms of free movement of people, goods, services and capital. Secondly, the Republic of Ireland and Northern Ireland are intertwined by the Good Friday Agreementand the Common Travel Area – hence the commitment that there will be no hard border (i.e. a border which would see the return of customs controls) between the two jurisdictions. And thirdly, the integrity of the UK and all of its constituent parts needs to be maintained. The suggestion of “regulatory alignment” on the island of Ireland gave rise to calls by the First Minister of Scotland Nicola Sturgeonand First Minister of Wales Carwyn Jones to be granted the same special Brexit deal. Friday’s breakthrough in the negotiations has only reiterated this stance.
A softer Brexit?
The events of Manic Monday muddled an increasingly complex Brexit negotiation process. Responsibility for the inability to achieve agreement on Phase One ahead of the European Council meeting rested primarily with both the UK Government and the DUP. The issue of regulatory alignment, or a potentially softer Brexit, has renewed the debate over what the UK’s future relationship with the EU will be, and reignited tensions within the Conservative Party, and the Cabinet.
There is one potential solution for this conundrum: the principle of ‘regulatory alignment’ could be applied in areas relevant to the Good Friday Agreement, and in certain areas of north–south cooperation (between Northern Ireland and Republic of Ireland) we would see the UK proposing specific solutions to address the unique circumstances of the island of Ireland. Such cooperation already exists in areas such as tourism, transport and health, but by embedding ‘regulatory alignment’ within the framework of the Good Friday Agreement not every rule and regulation from the EU single market and customs union would have to be the same.
Agreement on Phase One of the Brexit negotiations is welcomed, but this is not a victory for the UK government. Firstly, the possible solution of how to avoid a hard border between the Republic of Ireland and Northern Ireland (i.e. a potential UK–Ireland customs union without formal UK membership of the EU customs union plus regulatory alignment) outlined in the joint report from the representatives of the EU and the UK government was in fact proposed by the EU several months ago. And interpretations of how, in fact, a hard border will be avoided will ensue – but the issue is now more of a headache rather than Monday’s migraine.
Overall, Phase One of negotiations focused upon disentagling the UK’s existing relationship with the EU. Phase Two of negotiations will focus on the UK’s future relationship with the EU, which will be an unprecedented and even more complicated negotiation process focusing primarily on trade as well as terrorism, international crime, security and defence policy. The President of the European Council Donald Tusk has stated that he is “satisfied” with the agreement but that “the most difficult challenge is still ahead”.