A legal puzzle: How to solve the post-Brexit Northern Ireland border
Barnabas Reynolds is a partner at Shearman & Sterling LLP and the co-author of Mutual Enforcement, a recent publication by Centre for Brexit Policy. In this guest essay he makes the case that the UK can only solve the Northern Ireland border issue by drawing up an entirely new solution.
It is sometimes possible to go so far down the wrong path that you can’t see how to find your way back to the right starting point. Unfortunately, this is the position the UK government finds itself in after its Brexit negotiations, particularly over the arrangements for Northern Ireland. Our negotiators have failed to extract us correctly from the EU’s legal order. They have left EU law applying outside its territorial jurisdiction in Northern Ireland and introduced a system which drags the whole of the UK’s industry, trade and commercial policy back towards the EU’s regulatory orbit. Without control over our own laws, using our own legal method, we will not obtain the economic and social benefits of Brexit.
The situation is now so awry that many voices are claiming that it is impossible to make Brexit a success. Whatever their motives, they are wrong.
The immediate problem for Northern Ireland is how to create invisible arrangements for the land border with the Republic. After Brexit, the EU insisted that the only way to achieve this was by applying their own laws for goods in Northern Ireland, in a manner contrary to international law and the self-determination of peoples. The result has been the Northern Ireland Protocol which creates a border within the UK across the Irish Sea, where there is far more trade than across the north-south land border. It also creates a magnet, pulling us towards alignment with EU law in order to reduce the likelihood of increased frictions across the Irish Sea border which could damage the United Kingdom.
Instead of combating false EU arguments with robust analysis and presenting the viable alternatives, our negotiators conceded the game. The result is that producers in Northern Ireland must manufacture under EU standards, but face competition from mainland UK producers operating under what will increasingly be our own less onerous standards, assuming our system is allowed to deliver on the legal elements of Brexit.
To disguise the frictions in NI-GB trade, the UK is proposing to accept without checks any goods produced in Northern Ireland, to EU standards, into mainland Great Britain, thus keeping our market EU-driven regardless of whether we choose to apply different standards here. These things matter. Think of the horsemeat scandal which created food fraud across the EU unhindered. EU red tape does not ensure better standards. On the mainland UK, any significant moves to reinvigorate and bolster our traditional free market, common sense and common law approach risk creating more barriers under EU law for crossings east-west.
The Sunak government’s Windsor deal compounds matters by finding procedural accommodations under EU law and making only “non-essential” legal changes. Absurdly, it also introduces new laws, made in the EU, which have their sole effect within Northern Ireland and Great Britain, not the EU itself. It is a political attempt to solve a legal problem, and as such it fails at a fundamental level.
The Unionists object, quite rightly. The rest of the UK will do so too, once it becomes clearer in practice how EU law will continue to flow unchecked across the whole country through the unaccountable Joint Committee which supervises the Northern Ireland Protocol.
There are only two solutions to an invisible border on the island of Ireland. The first is to use the latest customs and other technologies to create imperceptible, behind-the-border checks on producers moving goods across that border. The EU flatly rejected the UK’s early proposals for this, coming up with theoretical technological gaps, regardless of whether those would arise in practice or could be mitigated. As the old joke about French thinking goes, “that all works well in practice, but does it work in theory?”
Secondly, the UK can change its laws to make it an offence for exporters who send goods across the north-south border to do so without complying with EU standards and processes. This technique, known as Mutual Enforcement, would involve the Republic doing the same for goods moving from south to north. This idea has the backing of many Unionist politicians, and of certain EU thinkers, such as Sir Jonathan Faull, a former senior EU official.
Since alternative arrangements have been rejected, Mutual Enforcement is the only solution. The Northern Ireland Protocol arrangements should now be set aside under international law, so that we can negotiate a durable solution afresh. We should start by imposing measures unilaterally for an invisible border, as a stopgap.
The International Court of Justice in 2019 said that the agreement by which Mauritius agreed that we would have use of the Chagos islands must fall away, because Mauritius, as a negotiating party before its independence, had not been in a position freely to give up sovereign rights. The principle applies just as much to the negotiations for the UK’s exit from the EU Treaties.
When negotiating Brexit, the UK was bound by EU law and subject to the EU’s political leverage. In fact, the EU threatened, arguably illegally, that unless the UK agreed to its demands, it would weaponise international trade law by imposing tariffs and checks on the UK identical to those required for countries with which the EU has no trade agreement at all.
We should recall the Chagos advisory opinion and reinstate the Irish border in its proper place, north-south. But this is not enough. Unless we insist that those put in charge of future negotiations have the right expertise and skills, previous errors will only be repeated in another form and the country will continue with febrile debate based on incorrect legal analysis. There is only one way to do Brexit, and that is, properly.
This essay reflects a personal opinion