Brexit: UK’s ‘fallback’ must protect Belfast Agreement

Ostensibly, the Irish protocol to the EU's draft Withdrawal Agreement is simply about honouring – or "operationalising" in legal language – the UK's political undertakings at the end of the Brexit phase one talks in December.

But according to Irish and EU officials there are also the binding international treaty commitments made two decades ago by the UK to safeguard the Belfast Agreement in all its parts. If those are not reconcilable with British political red lines on Brexit, then the Belfast Agreement, which permeates the protocol language, must trump the red lines.

So Northern Ireland will in effect remain part of the EU customs union – or a so-called "common regulatory area"– and the protocol provides for a special regulatory segregation of the North from the rest of the UK which will inevitably necessitate controls on the flow of goods across the Irish Sea. Though not, as EU chief negotiator Michel Barnier insists, a "border".

The protocol reflects the UK’s “fallback” position on preserving the current Border. London’s priority is to negotiate a future relationship with the EU allowing it to trade freely without any borders, and so no special arrangements in Ireland. But EU negotiators argue that such aspirational language is not appropriate for a treaty.

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Pending those talks, the UK’s fallback position is reflected in the protocol to provide a vindicable guarantee of no hard border. It will be superseded if the broader talks produce a more acceptable outcome.

All-island economy

Paragraph 49 of the December accord spells out that “in the absence of agreed solutions, the UK will maintain full alignment with those rules of the internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 agreement.”

The protocol “operationalises” that undertaking by specifying what regulations form part of that commitment, and explains how a common regulatory regime will work.

As well as free trade in goods, the protocol shall also “be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.“

A “mapping” exercise by EU and UK negotiators has identified some 142 areas of North-South co-operation.

A special joint committee of EU and UK officials would be established to supervise implementation, and enforcement would conform to the EU’s legal order with a role for the European Court of Justice.

The agreement does not, however, contain provisions to reflect paragraph 50 of December’s agreement which says that “in the absence of agreed solutions... the UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK, unless, consistent with the 1998 [Belfast] Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland”.

And: "In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market."

‘Unique circumstances’

These are seen as internal UK arrangements and assurances by the British Government to unionists to which the EU is not a party – if, the argument goes, these prove impractical or unrealistic, that is a problem for London to address.

Controls on the Irish Sea are taboo for unionism, and it is difficult to see how the protocol can be implemented not least if the Northern Ireland Assembly is given a veto over arrangements.

In addition to border-related text, the protocol contains provisions to safeguard the Common Travel Area, joint citizenship provisions for Northern Ireland, and to respect the constitutional status of Northern Ireland and the principle of consent.

It requires the UK to guarantee that there is “no diminution of rights ... caused by its departure from the EU, including in the area of protection against forms of discrimination enshrined in EU law”.

The protocol is seen as “specific to the unique circumstances on the island of Ireland”, in effect a statement that whatever all-island provisions are made they are not to be seen as a precedent for similar arrangements in the wider UK-EU future relationship deal.