Might the Irish/Irish border be the issue that derails #Brexit?  

This is a Brexit analysis piece I wrote for the weekly BEERG newsletter on Nov 9th, 2017

During the course of a debate on “Brexit and the Bar” held at the annual Bar conference in London earlier this week, senior British and Irish legal figures raised questions over the compatibility of Brexit with the 1998 Good Friday Agreement (also called the Belfast Agreement), warning that the landmark peace agreement may even have to be renegotiated if Britain leaves the customs union as a result of Brexit.

Paul McGarry, SC, chairman of the Bar Council of Ireland, said that the UK’s withdrawal from the European Union and likely exit from the customs union was “incompatible” with the provisions of the deal on issues such as citizenship and the free movement of people, saying:

“A hard Brexit presupposes no membership of the customs union and no membership of the single market. If you start off from that premise, you are automatically looking at some form of border and that’s incompatible with a whole variety of things, [including] the concept of citizenship for everyone born on the island in the Good Friday agreement… It’s incompatible with the common travel area, which is not part of the Good Friday agreement but predates the EU.”

Liam McCollum, QC, chairman of the Bar of Northern Ireland, echoed this analysis saying that Brexit. “[It] is as an insoluble an issue as you could possibly imagine,” and would “undermine the Good Friday agreement”. 

Mr McGarry went further in his critique, reminding the audience that the Good Friday Agreement is not just a piece of domestic law that could be tweaked and amended, but rather an international agreement between the Irish and British governments reached after years of painstaking negotiations, saying

“The Good Friday agreement is an international treaty recognised in EU law and the problem is if you want to amend or change it you have to renegotiate it, and [that is] regarded as being very, very, very difficult to do,”

“Most people are adopting the view that the UK can make its final agreement with the EU compatible with what’s in the Good Friday Agreement, [but] certainly nothing that’s been said so far would seem to work,”

As if this underline this later point the British government’s Secretary of State for Northern Ireland published an article on the Brexit Central website on Thursday with the headline: “Creative thinking can provide solutions to Northern Ireland’s Brexit challenges”. He finishes his article saying:

“…Within the Northern Ireland-Ireland Dialogue, we have agreed that the Belfast or Good Friday Agreement should be protected in full, including its constitutional arrangements.”

“We have proposed that the UK and the EU seek to agree text for the Withdrawal Agreement that recognises the ongoing status of the Common Travel Area and have already developed joint principles with the EU on this. We have also mapped out areas of cooperation that function on a North-South basis to ensure this continues once the UK has left the EU. None of this was ever going to be easy but I believe, with a positive attitude on all sides, it is achievable.” (My emphasis)

Note the passivity of Brokenshire’s phraseology: “should be protected”, “seek to agree text”, not to mention the Pollyanna-esque belief that a “positive attitude on all sides” can see this through – and remember that this is one of the three key issues in the first phase of talks. More importantly, remember that the EU’s chief negotiator, Michel Barnier, will be reporting back to the EU heads of government in four or five weeks on whether sufficient progress has been made on this issue, along with the financial settlement and citizens’ rights, to warrant moving to phase two talks on post Brexit trade arrangements.

The EU’s Guiding Principles for the Dialogue on Ireland/Northern Ireland within the EU/UK Article 50 negotiations are quite specific when it comes to avoiding a hard border in Ireland and protecting on the Good Friday Agreement. They include this para:

Ensuring the avoidance of a hard border on the island of Ireland is central to protecting the gains of the Peace Process underpinned by the Good Friday Agreement. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required to avoid a hard border, including any physical border infrastructure. This must be achieved in a way which ensures that Ireland’s place within the Internal Market and Customs Union is unaffected.

This issue is clear. The EU says that it wants to avoid a return to a hard border across Ireland, including any infrastructure.   The UK insists that all the UK, including Northern Ireland, is leaving the Customs Union and that means, by definition, having a hard border. The response of the EU 27, including Ireland, is straight forward: the onus to propose solutions which overcome the challenges created on the island of Ireland by Brexit, including the decision to leave the customs union and the internal market, remains on the United Kingdom.

But, none are forthcoming, and the clock is ticking. If the UK fails to propose workable solutions, then there cannot be a workable Brexit. Might Northern Ireland and the Irish/Irish border yet be the issue that derails Brexit?