In the space of a few carefully-worded paragraphs, the Joint Report issued by the UK and EU on Friday has managed to utterly transform the prospects for Northern Ireland after Brexit.
The UK-EU Joint Report
The UK has offered surety for maintaining an open Irish border, promising to maintain wide-ranging alignment with EU rules covering every aspect of the 1998 Agreement, north/south and east/west. Moreover, it has asserted that Northern Ireland will ultimately have the right to decide for itself to follow UK or EU rules, should they diverge in the future.
It is important to note that this only comes into force if the UK and EU don’t agree a far-reaching enough future trade deal to avoid a hard border, either north/south or east/west. This, the Report affirms, no way affects Northern Ireland’s position as an ‘integral part of the United Kingdom’.
The Joint Report also states that there should be ‘no new regulatory barriers’ between Northern Ireland and the rest of the United Kingdom, unless – much rests on that one word – ‘consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland’ [paragraph 50].
And so much now depends on the course of Phase 2 negotiations. But even more depends on the way that these commitments are presented and interpreted, particularly within the UK and most especially by the Democratic Unionist Party. Inevitably, this response will rest on whether ‘specific solutions’ for Northern Ireland are viewed as compatible with the integrity of the United Kingdom.
Distinct arrangements for NI
We should not go any further without noting that the United Kingdom is already a model of internal differentiation. Indeed, of the UK’s constituent parts, Northern Ireland is the one that benefits most demonstrably from distinct arrangements.
Although the Scottish government enjoys greater devolved powers than the Northern Ireland Executive, Northern Ireland already holds a different status compared to any other part of the United Kingdom. This was formalised in the 1998 Good Friday (Belfast) Agreement. Northern Ireland has a unique constitutional standing (which is subject to change, with consent of a majority) accompanied by unusual multi-level governance arrangements: regional, north/south and British/Irish.
A consistent unionist argument for Northern Ireland’s differential treatment has been that it secures the Union by democratically addressing nationalist political concerns whilst allowing the practical advantages of the Union (the well-worn ‘NHS’ trope) to be felt in everyday life.
This differentiation also extends to the economic sphere. The DUP fought hard for Northern Ireland to be granted its own corporation tax rate – and one carefully aligned with that of the Republic of Ireland at that.
Now, in the context of the Joint Report and the Brexit negotiations, we are looking at a different level of differentiation.
It is an unavoidable fact that if UK as a whole diverges in future from EU rules, trade friction for Northern Ireland will be the automatic result. The Joint Report allows for a situation in which Northern Ireland can, in principle, benefit from specific solutions to meet its needs.
The danger, if being navigated by a Northern Ireland Executive and Assembly [as per paragraph 50, see above], is that any Northern Ireland decision about distinct arrangements for its future will become a mini-border poll, as big and binary decisions tend to do in this place.
With this in mind, negotiators in the NI/IRL strand of the Phase 2 discussions should be aiming already to avoid – at all costs – creating a situation in which Northern Ireland’s future rests on a binary decision. Decisions about ‘specific solutions’ should not be framed as a choice between alignment to Great Britain or to the Republic of Ireland.
The biggest responsibility here rests with the UK government and its approach to Phase 2, which will determine whether the decision will come to Northern Ireland, and if so, what that decision will have to cover.
At the very least, we can be fairly sure that ‘specific solutions’ will require more devolution, more competence, more complex decision making, more advanced policy-formation, and more international standing.
This in a region which has never felt comfortable in its own existence. Worse, it would be in a region where the devolved administration is currently in suspension, where democratic accountability and transparency has been known to be somewhat less than assured, and where just one bill [on the budget] has been passed through the Assembly to become an Act of Legislation in the past year and a half.
The Joint Report is a quite remarkable example of the UK and EU listening to the concerns of Northern Ireland: unionist, nationalist and other.
Now the process moves from principles to details; these will soon translate into decisions and responsibilities. We must be prepared to take them.
This article was co-authored by Katy Hayward and Paul McGrade, a former diplomat and a consultant on strategy and EU public affairs.