The British House of Lords' EU committee report on Brexit's implications for Ireland is a characteristically thoughtful document from a body well recognised for its thorough and measured approach to the routine business of the EU.
Of course Brexit is far from routine, but the Lords EU committee’s deep experience of EU affairs shows in this, the first of six reports it is publishing this week on aspects of Brexit... which is a long-winded way of saying this Committee’s report ought to be taken seriously and carefully read.
The Committee’s key conclusion after hearings held in London, Belfast and Dublin is to call on all parties to the negotiations – the EU institutions as well as the Member States – to give “official recognition to the special, unique nature of UK-Irish relations in their entirety”. This includes the position of Northern Ireland, and the North-South and East-West structures and institutions established under the Belfast/Good Friday Agreement.
But that is not an easy ask, and the Committee says it doesn’t underestimate the difficulties of translating such a proposition into a final agreement – especially as the Brexit deal is supposed to be negotiated by Britain and the EU institutions action on behalf of the 27 remaining member states (who will have the final say).
Nevertheless, it does propose what it sees as a practical solution to a difficult but not impossible situation – for the British and Irish governments to negotiate directly on the specific aspects of Brexit that affect Ireland, whilst keeping the rest of the EU fully briefed on what is going on.
The report states: “The preferred approach, we believe, would be for the EU institutions and Member States to invite the UK and Irish Governments to negotiate a draft bilateral agreement, involving and incorporating the views and interests of the Northern Ireland Executive and keeping the EU parties fully informed as this negotiation proceeds. Such an agreement would then need to be agreed by EU partners, as a strand of the final Brexit arrangements”.
The report gives a good overview of the main problems thrown up by Brexit for the Island of Ireland and its relations with Britain, and notes that “a particular burden has fallen on the Irish Government to bring these issues to the attention of EU colleagues”, and it welcomes the efforts of the Irish Government in doing so.
But it pulls no punches in stating that “the primary responsibility for drawing attention to and finding solutions to the many challenges we have identified lies with the UK Government. Ireland now faces challenges that are not of its own making. Closer UK-Irish relations and stability in Northern Ireland are too important to put at risk as collateral damage of the Brexit decision”.
It then goes through the various implications of Brexit for Ireland, starting with the economic implications – again baldly stating that Ireland will be the EU state hardest hit by Brexit. It puts a spotlight on the country’s agri-food and manufacturing sectors, and the SMEs that work within them, saying they will be hardest hit by Brexit given their dependence on UK markets.
It also doubts the official optimism of First Minister Arlene Foster and Northern Ireland Secretary James Brokenshire about the prospects for Northern Ireland’s economy outside the EU, stating “our evidence suggests that the risks to the Northern Ireland economy posed by Brexit probably outweigh the opportunities”.
Meanwhile it notes there may be some economic upside for Ireland in seeking to attract Foreign Direct Investment as an English speaking member of the single market, stating that the Irish Government’s contingency planning leaves it “well placed to respond to the economic challenges Brexit will represent”.
The most difficult of the knotty issues thrown up by Brexit is the border that will exist between the EU and the UK – which will run across the Island of Ireland. Both governments have stated at prime minster level that they do not want to see a return to the “hard border of old”. The big question is, how?
The Lords Committee states “Retaining customs-free trade between the UK and Ireland will be essential if the current soft border arrangements are to be maintained. 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”.
It says the only way for to retain the current open border in its entirety would be either for the UK to remain in the customs union, or for EU partners to agree to a bilateral UK-Irish agreement on trade and customs.
The problem for the latter is that the EU treaties give the EU exclusive competence to negotiate and agree trade and customs arrangements with “third Countries” – which is what the UK will be when it leaves the EU. (The Consultative Committee of Accountancy Bodies –Ireland, an organisation that brings together the main accountancy professional bodies, submitted a paper to the Committee calling for a bilateral treaty between Britain and Ireland to allow for free movement of workers between the two states, and a standalone customs and trade agreement. But it recognised that this is in breach of Article 3 (1)(e) 207 of the TFEU, which forbids individual member states to conclude customs and tariffs deals with “third countries”).
On the issue of the Common Travel Area and the free movement of people and workers between Britain and Ireland the report states “There is consensus between the UK and Irish Governments that the Common Travel Area arrangements should be retained. Yet the references to the CTA in a Protocol to the EU Treaties mean that the agreement of EU partners to this approach will be required”.
So once again, it’s not a simple issue to be decided between the two states. And it notes “it is not a given the EU will tolerate uncontrolled movement from the UK into the EU via the UK-Irish border”.
As for the sensitive issue of controlling foreign workers coming into the UK – probably the key issue in the Brexit referendum – the Lords seem to be of the view that this should not apply to the Irish. It states “It is imperative that the longstanding rights of UK and Irish citizens to reside and work in each other’s countries be retained. We urge the Government to confirm that the rights of Irish citizens under domestic law will be maintained, whatever the outcome of the Brexit negotiations”.
But it’s not just the sensitivities of those who cross the Irish border that needs to be taken into account. The Lords says “strengthened checks for UK and Irish citizens at the sea boundary between Northern Ireland and Great Britain would be politically divisive and inherently undesirable”.
The report also deals with the impact of Brexit on British-Irish relations, noting that joint EU membership has contributed to a deep relationship, removing many of the misunderstandings and suspicions of the past and helping politicians and civil servants to get through business on a basis of frequent meetings at EU events. The report states “It is incumbent on all sides to ensure that the relationship does not atrophy as a result of Brexit”.
It welcomes the engagement of the North-South Ministerial Council in the Brexit talks process, and says the all-Island Civic Dialogue is a “useful format for discussion”, but it notes the concerns of many at the low level of engagement by UK minsters in these fora, adding “The fact that UK and Irish ministers and officials will no longer meet in the EU context makes it all the more important that both sides devote the time and attention necessary to ensure that the bilateral UK-Irish relationship continues to prosper”.
As a result of its deliberations on these and other key issues the Lords Committee recommends the following as objectives for the British and Irish governments to pursue in bilateral talks for a deal that can form a strand of the EU-UK Brexit final agreement:
Maintenance of the current open land border between the UK and Ireland, as well as of the ease of movement across the sea boundary between Northern Ireland and the rest of the UK.
Maintenance of the current Common Travel Area arrangements, and the right of free movement of UK and Irish citizens between the jurisdictions.
Maintenance of the right of UK and Irish citizens to reside and work in each other’s countries.
The retention of rights to Irish (and therefore EU) citizenship for the people of Northern Ireland.
In the event that the UK leaves the customs union, a customs and trade arrangement between the two countries, subject to the agreement of the EU institutions and Member States.
Acceptance of the Northern Ireland Executive’s right to exercise devolved powers in making decisions about the free movement of EU workers within its jurisdiction.
Reaffirmation by both governments of their commitment to the Belfast/Good Friday Agreement and subsequent agreements, including continued support for existing cross-border cooperation.
Continued eligibility for cross-border projects to EU funding programmes.