Policy engagement at Queen’s

Hard Brexit – perspectives for the island of Ireland?

In the event of a hard Brexit, Professor Dagmar Schiek looks at some of the areas where the withdrawal of the UK from the EU will impact on life on the island of Ireland.

Hard Brexit – perspectives for the island of Ireland?

“We will work with the Irish Government and the Northern Ireland Executive to find a practical solution that recognises the unique economic social and political context of the border between Northern Ireland and Ireland. An explicit objective of the UK’s Government’s work on EU exit is to ensure that full account is taken for the particular circumstances of Northern Ireland. (…) ” (White Paper on Exiting the EU, 4.10“

These are comforting words – embedded in a White Paper that is widely perceived as promoting a “hard Brexit”: the government is determined for the UK to leave the EU Internal Market as well as its Customs Union, is renouncing the body of EU citizenship rights covering non-commercial areas depending on free movement without an economic purpose (e.g. higher education, and civil society cooperation) as well as liberating the UK from the jurisdiction of the European Court of Justice.

Seven months after the results of the EU referendum were announced, it may be time to look beyond grand plans. It is time to begin the painstaking work of identifying the numerous ways in which the withdrawal of the UK from the EU will impact on the life on the island of Ireland. Although two States claim sovereignty over the island of Ireland, the Irish peace process (enshrined in law in the Belfast Agreement and subsequent peace agreements) as well as their common EU membership have facilitated a normalisation of all-island socio-economic and civil cooperation.

The UK’s withdrawal from the EU may offer some opportunities for the Republic of Ireland, related to its potential to attract business and higher education institutions favouring a location within the EU as well as within an English language and common law environment. The negative impact on the island of Ireland as a whole is likely to outweigh the opportunities though. The geographic separation of the outermost Western EU Member State from the rest of the EU by the non-EU state UK will make travel to, and trade with the EU more difficult. The difficulty is enhanced by the fact that one of the two states claiming sovereignty on the island of Ireland will no longer be an EU Member State.

The relative normality of economic, social and civic integration on the island of Ireland can be viewed as a success of EU integration, and is largely reliant on EU law. The specific quality of EU law as being directly effective within its Member State is of particular importance for states such as the UK and Ireland, whose written constitution and unwritten constitutional arrangements do not accord direct effect to international agreements normally. The common membership in the EU as an entity which goes beyond mere intergovernmental cooperation in that it grants enforceable rights to citizens – whether for business purposes or civic cooperation – has been vital over these last more than 40 years.

Accordingly, it is not at all apparent how a series of peace agreements to which the UK and Ireland are parties will continue to function after one of the two parts of the island of Ireland leaves the EU – as has been suggested by Secretary of State Brokenshire in his evidence to the House of Lords Inquiry on “Brexit” and the UK Ireland relations. While both these agreements promote, among other things, economic, social and civil integration on an all island basis, they lack the direct effect and supremacy accorded to EU law. Withdrawing EU membership can thus be likened to the proverbial pulling of the carpet under one’s feet with respect to these agreements.

Accordingly, it is not at all sufficient to deliberate on ever more elaborate technology to administer the new border between Ireland and Northern Ireland which becomes inevitable with the UK leaving the EU. Instead, a new legal framework for integration on the island will have to replace the EU legal framework after the UK’s withdrawal. Because of Ireland’s continued EU membership, this framework will have to be developed in the framework of all-EU negotiations around withdrawal, as well as the future relation of the EU with the UK. After all, Ireland has enhanced his capacity to act internationally by pooling its sovereignty in the EU.

During the withdrawal process, the EU legal framework for the slow and painful integration process on the island of Ireland will obviously remain intact. While under Article 50 TEU a two-year period is provided for the initial negotiations of a withdrawal agreement, it is highly unlikely that this period is sufficient to hammer out the future relationship between the EU and the UK. Accordingly, a transitional period during which the relationship is negotiated is highly likely. For this transitional period, areas of specific concern should be addressed by a specific solution preserving the effects of EU membership for Northern Ireland.

This is particularly relevant for maintaining shared markets for employment and professional services, free trade without customs duties, and a common agricultural sphere, as well as citizenship rights beyond economic integration. Enabling EEA membership of Northern Ireland for a transitional period thereafter will not avoid a controlled customs border between the two parts of the island, nor maintain the economic strength of the agri-food sector and possibly also endanger tourism on an all-island perspective. For the time after the transitional period, maintaining or developing an all island perspective may take a number of forms, including recognising the specific status of Ireland as a whole in EU state aid law.

Last but not least, the withdrawal agreement will have to secure the perspective of a potential unification of Ireland as a whole as demanded by the Belfast Agreement. While German reunification constitutes a precedent for the EU accepting its own enlargement by the enlargement of one of its Member States, the informal approach taken to this important matter that prevailed in 1989 is highly unlikely to reproduce itself.

Thus, a special agreement under EU law on this matter is necessary – as also recognised by the Taoiseach recently.

A longer elaboration of the issues addressed in this blog has been published as an occasional paper on the website of Queen’s University’s Jean Monnet Centre of Excellence “Tensions at the Fringes of the EU.”

 

The featured image has been used courtesy of a Creative Commons licence.

 

Professor Dagmar Schiek
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Dagmar Schiek is Professor of Law at Queen's University Belfast and holds a Jean Monnet ad personam Chair in EU Law and Policy. Professor Schiek directs the Centre of European and Transnational Legal Studies and convenes the Jean Monnet Centre of Excellence "Tensions at the Fringes of the European Union" as an interdisciplinary project.

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