Border Fog: Brexit’s cloud of assumptions about the Irish Border

Border Fog: Brexit’s cloud of assumptions about the Irish Border

Collin Murray

The Brexit debate has long been sustained by supposed facts, shorn of context, but delivered with as much authority as the speaker can muster. Jacob Rees-Mogg, for example, recently delivered his assessment of how the Irish Border should work after Brexit:

“There would be our ability, as we had during the Troubles, to have people inspected. It’s not a border that everyone has to go through every day, but of course for security reasons during the Troubles, we kept a very close eye on the border, to try and stop gun-running and things like that.”

The fact, nestled in this statement, is that security checks took place on roads crossing the border during the Northern Ireland conflict, but then, vehicle checkpoints could be set up on any road in Northern Ireland in the course of the conflict. During the conflict the UK’s armed forces swiftly rejected any idea of checking vehicles on all border roads as a waste of resources and as creating targets.

In reality, the border checks were instead about customs and excise powers. Until the mid-1990s checks were maintained on the twenty authorised routes for bringing goods between Ireland and Northern Ireland. Why did these barriers to trade end? This development was not a function of the improving security situation in Northern Ireland, but rather the completion of the European Union’s single market.

The ease with which security checks come to be conflated with immigration checks and customs checks in Jacob Rees-Mogg’s post-Brexit vision is alarming, and reflects a particular understanding of the nature of the Irish border. For all the UK Government’s insistence that, after Brexit, there will be no return to the “borders of the past”, the border remains to be negotiated and legally regulated as part of Brexit, and different factions in the Conservative Party consider these arrangements to be up for grabs.

Both the UK and Irish Governments maintain that the Common Travel Area (CTA) will remain in force after Brexit, with the UK Government insistent that this arrangement will largely address the problems faced by those in Northern Ireland and on the border after Brexit. But the CTA, established between Ireland and the UK in the aftermath of Irish independence, resolves little. At its core the CTA is a political non-binding understanding between Ireland and the UK. Even with the CTA after Irish independence both countries enforced common immigration rules, enabling them to establish a common “external” border and permit undocumented travel between them.

The CTA provides few legal safeguards. It was suspended during the Second World War, and even after 1945 the UK Government continued to require documentation from all travellers from Ireland entering Great Britain, even those from Northern Ireland. Even after the CTA was re-established in 1952 it did not prevent the customs checks on authorised routes and restrictions on other roads crossing the land border. It was EU law that superseded these. The CTA, in short, does not provide for a frictionless border.

The UK Government has also affirmed its commitment to the Good Friday/Belfast Agreement (GFA) of 1998, which brought the bloodiest phase of the Northern Ireland conflict to an end. Once again, however, this commitment does little, in itself, to forestall the difficulties posed by Brexit. The GFA built upon established legal groundwork by which Ireland and the UK’s legislation provided for roughly reciprocal arrangements for each other’s citizens on issues like voting rights. No need was perceived in 1998 to lock in those arrangements, especially when other legal protections existed on the basis that Irish and UK citizens were also European citizens with rights under EU law. The relevant parts of the GFA instead focused on augmenting these beginnings, seeking to enhance North-South and East-West cooperation between Northern Ireland, Ireland and Great Britain.

This triangular arrangement of cooperation assumes shared legal frameworks which will facilitate cross-border approaches to issues as diverse as energy, healthcare and education. These elements of the GFA would, however, lose much of their meaning if the UK, post Brexit, seeks to pursue divergent policies, and many of the most ardent Brexiteers regard the GFA as no legal impediment to such a course. As the majority of the UK Supreme Court put it in the Miller judgment, the GFA was concluded, and legislated upon, based on the “assumption that the United Kingdom would be a member of the European Union”. It gives little guidance on how its terms are to apply in the event that this assumption no longer has a foundation.

This is not to say that the international agreements concerning Northern Ireland have no legal impact on Brexit. Rather the extent that it restricts law-making in the UK post-Brexit is open to interpretation. The key question is whether the UK Government want to tear up parts of the GFA to deliver a particular vision of Brexit. For example, one area in which the GFA did assert the need for reciprocal protections was human rights. The UK was obliged to introduce the European Convention on Human Rights (which is a separate treaty from EU law, and which will remain binding on the UK after Brexit) into domestic law in Northern Ireland and Ireland was obliged to secure a comparable level of rights protection to that in place in Northern Ireland. But does the obligation to maintain comparable standards rest solely upon Ireland, or does it extend to prevent the diminution of a range of rights protections beyond the ECHR in Northern Ireland?

The December 2017 Joint Report on Brexit negotiations between the UK and EU provided for the outlines of a withdrawal agreement. It identified important legal duties upon the UK stemming from the GFA, and secured a commitment to “regulatory alignment” between the Northern Ireland and Ireland after Brexit in the event that no other solutions could be found to keeping the land border open (the so-called “backstop”). This breakthrough recognised what was implicit in the GFA; that such alignment is a necessary precursor to the GFA’s “all-island” provisions. Since then, the reality has dawned on UK Government ministers that this approach locks Northern Ireland into aspects of the European Project, and obliges the UK to follow suit if it is to maintain the integrity of its constitutional arrangements.

As a result, after the June 2018 Chequers Deal presented a vision of Brexit which diverged from this position, Theresa May called on the EU’s thinking on the backstop to “evolve”. A hooked fish might similarly hope that the angler’s position will evolve before it is reeled in, but this is little more than a matter of hope. The Joint Report was alive to the context that the GFA, no less than Brexit, was accepted by popular vote in referendums in both Ireland and Northern Ireland. It therefore secures the legal circumstances necessary for the GFA to fully function.

For the UK Government, these arrangements are no longer the building blocks of peace in Northern Ireland, but inconveniences in its efforts to hold the Conservative Party together. Much of politics in Northern Ireland is sidelined for as long as its devolution arrangements have been suspended. The only Northern Ireland party with a direct say is the DUP, whose MPs provide Theresa May with her slim parliamentary majority. Grudgingly reconciled to the 1998 settlement through the 2006 St Andrews Agreement, they offer little by way of constraint on these impulses.

For the EU (and its continuing member states), efforts to back away from the position agreed in December 2018 come across as acts of bad faith in negotiations. This environment is so febrile that it undermines the UK Government’s existing assurances over the CTA and GFA, driving its negotiating partners to seek more protections for “all-island” arrangements. The inescapable reality is that although the countdown is fast ticking towards Brexit in March 2019, we are moving further away from agreement. For the people of Northern Ireland, the future of its constitutional arrangements could not be more obscure.

Reference
Bordering Two Unions: Northern Ireland and Brexit was published by Policy Press in August 2018. It was written as a collaboration between Sylvia de Mars (Newcastle University), Colin Murray (Newcastle University), Aoife O’Donoghue (Durham University) and Ben Warwick (Birmingham University), and aims to provide an accessible and authoritative account of the legal difficulties which Northern Ireland creates for Brexit. It is available as a free ebook.

 

Colin Murray is a Reader in Law at Newcastle Law School, Newcastle University (UK). His research is focuses upon public law and legal history and has been cited in the UK Supreme Court. A selection of Colin’s research papers is available on SSRN, and his research has fed directly into several Government Consultations and Parliamentary Committees across a range of legal issues, including Brexit and prisoner voting.

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