The need to ensure that the Belfast Agreement is protected has been a prominent message in official statements of the UK and Irish governments, as well as of the EU, ever since Theresa May triggered Article 50 TEU in March 2017 and formally launched the withdrawal process. Most recently in her Mansion House speech, May maintained to her audience that she had ‘consistently put upholding the Belfast Agreement at the heart of the UK’s approach’ to Brexit.
How the UK government intends to protect the 1998 Agreement has not yet been made clear beyond the publication of its broad position paper in August 2017 and the issuing of commitments, notably, for example, four months later in paragraph 49 of the UK-EU Joint Report in which there were also related commitments to preserving north-south cooperation, avoiding a hard border and supporting the all-island economy.
The EU meanwhile has set out in its draft ‘Protocol on Ireland/Northern Ireland’ what it considers the minimum required for the UK to deliver on its commitments. Much attention has focused on the measures designed to avoid a hard border: Northern Ireland remaining part of the EU’s customs territory and the establishment of a common regulatory area covering the free movement of goods between the EU and Northern Ireland.
Less attention has been paid to the protocol’s provisions committing the UK to ensuring ‘no diminution of rights, safeguards and equality of opportunity’ as set out in the 1998 Agreement and facilitating the related work of institutions and bodies in upholding human rights and equality standards. According to the colour coding in the latest version of the draft Withdrawal Agreement, these are commitments where the UK agrees to the policy objective, but has not yet agreed to the exact language proposed. The same applies to state aid and regulatory alignment between Northern Ireland and the EU to support the single electricity market.
Encouragingly, the UK government has no apparent reservations about the range of areas in which regulatory alignment between Northern Ireland and the EU will be required to maintain North-South cooperation. In contrast to the very narrow scope envisaged by UK government sources when the Joint Report was published, there appears to be agreement that at least some of the existing alignment will need to be retained in the following areas: environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.
The UK government position reflected in the colour-coded version of the draft Withdrawal Agreement suggests therefore a far more sober appreciation of what is required to deliver on the commitments contained in the Joint Report than was evident in the hostile reaction to the protocol when it was first published in late February 2018.
The protocol deserves calm and considered reflection, not least because, beyond being the EU’s proposed ‘backstop’ in case matters are not addressed satisfactorily in the future UK-EU agreement, it provides a clear indication of the areas in which regulatory alignment will need to be maintained to protect the 1998 Agreement ‘in all its parts’ as per the Council mandate for the withdrawal negotiations.
Moreover, and contrary to comments by UK government ministers, it needs to be recognized that although the protocol, if implemented, would provide for a unique post-Brexit arrangement for Northern Ireland, it would not ‘in effect leave Northern Ireland in the [EU]’. Nor should it be seen as a hostile act; and certainly not as an attempt to ‘annex’ Northern Ireland.
Although the extent of the sustained regulatory alignment envisaged has not yet been revealed in any detail, it is likely to be extensive, at least as far as the free movement of goods is concerned. Significantly, however, the protocol does not provide for the free movement of services, capital or people, although the movement of UK and Irish citizens and certain associated rights will be covered by current and future arrangements as part of the Common Travel Area (CTA).
What is envisaged with regard to Northern Ireland is ‘a selective, and lean version of the internal market’. As such, the protocol falls well short of what a range of political and business voices have been advocating in terms of Northern Ireland remaining in the internal market. Most certainly, the protocol will disappoint advocates of Northern Ireland being granted some form of special status ideally within the EU.
Moreover, without sight of either the results of the much referenced yet still unpublished mapping exercise on north-south cooperation or the annexes on regulatory alignment, particularly as required for north-south cooperation, it is too early to determine whether what is envisaged in the protocol would in fact allow the UK government and the EU to deliver on their commitments to protect the 1998 Agreement and its implementation.
A year ago, the Northern Irish dimension to Brexit attracted very little attention in UK political debate. In her Lancaster House speech in January 2017, May spoke of maintaining the CTA and briefly of avoiding the ‘borders of the past’. She made no mention, however, of the 1998 Agreement or of North-South cooperation. A year later, as events mark the 20th anniversary of its signing, the question of how to protect the 1998 Agreement and ensure the UK’s related commitments, notably concerning its guarantee to avoid a hard border, are rightly a focal point of the withdrawal negotiations. If those negotiations fail to deliver a backstop arrangement that supports the continued and effective implementation of the 1998 Agreement and avoids the potentially disruptive effects of Brexit, this will only exacerbate wider uncertainties about the Agreement’s future.
Article originally appeared on the DCU Brexit Institute blog.
The featured image has been used courtesy of a Creative Commons license.
