The “Irish problem” dominates the public debate and behind-closed-doors-negotiations on the UK’s withdrawal from the EU. The EU Commission’s draft protocol on Ireland/Northern Ireland (nicknamed “backstop”) remains the only elaborated option (pages 108-116 of the draft withdrawal agreement, still with some blank spaces). However, any settlement on its contents remains elusive. The Commission should thus pause and think . I argue that its proposal is far too modest, and should be emboldened (longish version here: Northern Ireland Legal Quarterly).
The draft protocol demands that the UK unilaterally prevents any “diminution of rights” mentioned in the Good Friday Agreement, in particular of anti-discrimination rights. (Chapter I with Article 1) Similarly, “movement of persons”, deceptively and honestly skipping the notion of free movement, is to be safeguarded by the UK alone, supported by the (legally unenforceable) Common Travel Area between the UK and Ireland in so far as it is compatible with Ireland’s obligations under EU law. (Chapter II with Article 2) The bulk of the draft protocol, and indeed its most ingenious invention, consists of the Common Regulatory Area (Chapter III). Its initial article alludes to the EU Treaties’ definition of the internal market, according to which the Internal Market consists of an area without frontiers where goods, persons, services and capital circulate freely. Alas, the common regulatory area only provides an area where goods – including agricultural goods and electricity – circulate freely on the island of Ireland. Chapter III partakes in the supranational character of EU law: It has direct effect and supremacy within national law of Northern Ireland, where its provisions are also subject to the ECJ’s jurisdiction. (Article 11). A subcommittee on Ireland/Northern Ireland is envisaged for administering the protocol, with a mandate to continue negotiating the exact boundaries of the common regulatory area (Articles 8 and 10). This might entail extension of its coverage to encompass free movement of persons and services.
Michel Barnier, the EU Commission’s chief negotiator on “Brexit” characterised the Common Regulatory Area as unique and far reaching in a recent speech: “Our proposal gives Northern Ireland benefits that no part of a third country enjoys”, he asserts. Nevertheless, I suggest that the draft is too timid, since it neglects those areas where the UK’s and Ireland’s common EU membership underpins the Good Friday Agreement: EU membership provides an essential legal framework for hybridity of personal identities in and the territory of Northern Ireland, as well as offering the substantive preconditions for socio-economic improvement in Northern Ireland by making it part of an all-island economy. Further, while most of the rights guaranteed in the Good Friday Agreement do not find any parallel in EU law, the EU anti-discrimination acquis and rights derived from EU citizenship are critical underpinnings of the congruent provisions of the Good Friday Agreement.
The “backstop” falls short of protecting any of this. As regads anti-discrimination acquis and citizenship rights, providing obligations for the UK only equals squaring the proverbial circle: even if the UK maintains NI legislation banning discrimination on grounds of ethnic and racial origin, sex, religion and belief, sexual orientation, disability and age, its withdrawal from the EU will remove the unifying force of the ECJ’s jurisdiction for this field. Also, the UK is unable to guarantee continued rights to movement, since these rights are reciprocal, and full citizenship rights of Irish citizens in Northern Ireland depend on Ireland changing its electoral laws.
Chapter III on the common regulatory area is equally far too weak. Although the press consistently tells us the NI is to remain in the Internal Market, the “backstop” only addresses some patchy coverage. NI remains within the Internal Market for goods, the Customs union and VAT area, and subject to EU state aid law. It is excluded from the internal market of services and free movement of persons (including business). This clashes with only authoritative statement on Northern Ireland after Brexit from its institutions, more precisely the First and Deputy First Minister. Their letter to Theresa May insisted on free movement of goods, services and persons, explicitly referring to low and highly skilled labour. This recognised the necessity for Northern Ireland’s economy to access labour, and to further support, rather than stymy, a thriving service sector. Throwing Northern Ireland back on free movement of goods may remove the need for physical border posts on the island of Ireland. However, it traps Northern Ireland’s economy, as it only benefits some agricultural producers and some manufacturing. A thriving service economy, which is necessary to support elaborate manufacturing, a sophisticated agrifood industry and also a free-standing endeavour in areas such as legal and financial services, remains excluded from the EU Internal Market – although being subject to EU state aid law.
Above all, as has been noted by others as well, it betrays the indivisibility of the Internal Market. Metaphorically speaking it offers Northern Ireland the cherries denied to the UK: access to the internal market for goods, without having to endure free movement of persons and services. While that exclusion actually constitutes a detriment, it is unlikely for a British government to accept that tiny Northern Ireland could achieve what is denied to Britain.
Accordingly, my proposal is for the EU Commission to be bolder, and make a proposal that does not give in to the battering of free movement of persons on the part of the UK. As Michel Barnier aptly states, when speaking on the whole of the UK:
“The United Kingdom has demanded alignment with a substantial part of our standards for goods, though only partially, in order to maintain the same participation in our internal market it enjoys today, for these goods only. At the same time, the United Kingdom wishes to remain free to diverge on all the regulations that apply to the factors of production of these goods, whether we think of services, labour, capital or social and environmental standards. Everyone here understands that such a system of “single market à la carte” would be tantamount to offering the UK and its companies a major competitive advantage over companies working in the single market.” [Author’s translation from French]
The Commission should recognise that this is true for Northern Ireland as well, and revise the draft protocol to expand the common regulatory area to encompass free movement of persons and services as well. At the same time, it should demand that EU citizenship rights and the EU equality acquis are upheld in Northern Ireland, also subjecting their enforcement, alongside the enforcement of the Common Regulatory Area, to the jurisdiction of the Court of Justice. Last but not least, the draft protocol should ensure that the UK members of the subcommittee on Northern Ireland are recruited from Northern Ireland in line with the principles of the Good Friday Agreement, even while (as frequently) the Northern Irish institutions are dysfunctional.
EU Law Critique 