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[...] The UK Government Northern Ireland and Ireland Position Paper Using the type of ‘constructive ambiguity’ that the 1998 Good Friday (Belfast) Agreement is famed for, the UK Government’s Position Paper on Northern Ireland and Ireland (16 August 2017) does acknowledge the need for some form of bespoke arrangements for Northern Ireland after Brexit. Furthermore, it openly engages with the EU’s language of finding ‘flexible and imaginative solutions’, even if only with direct reference to avoiding a ‘hard border’.
Brexit means that the trajectories of the two states will now diverge, leaving Northern Ireland in the awkward place between. The EU is not convinced by the UK government’s assurance that it will seek to stay in line with its regulatory standards (as a means of reducing the need for customs checks). For UK/EU (and British-Irish) divergence will happen in law, trade, security, values, the fundamental rights of citizens, politics… all such areas reach to the very core of the Good Friday Agreement and put it at risk of deep fissures.
The UK’s red line of no customs border within the UK is a problem, not least because it rules out the possibility of regional-level arrangement in the realm of trade. A differentiated arrangement for NI would be novel but not radical – consider, for a start, the fact of the non-EU membership of the Channel Islands and Isle of Man.
What is more, the unique status of Northern Ireland is already acknowledged in resolutions of the European Council, in international law, in constitutional and institutional frameworks, in practice – and these centre upon the 1998 Agreement. This should be our starting point.
Solutions present in the Agreement
Key to finding solutions will be ensuring minimal divergence from the acquis communautaire as regards the free movement of goods, services, capital and people. This in practice will assist in minimising the economic disruption posed by Brexit to cross-border movement, albeit subject to whether and what customs controls are needed.
The question then becomes one of facilitation and enforcement. Under the Agreement, it would be possible for the Northern Ireland Assembly to legislate to maintain regulatory equivalence with the EU or even adopt EU law – and even, if allowed by the Secretary of State, on reserved matters.
Added to this, the North/South Ministerial Council (NSMC), with its Joint Secretariat, and all-island ‘implementation bodies’ exist ‘to develop consultation, co-operation and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest’. [...]
There is no reason why the protection of north/south cooperation would automatically weaken Northern Ireland’s bond to Great Britain. The Agreement states that ‘all of the institutional and constitutional arrangements… are interlocking and interdependent’. In this regard, the third strand of the Agreement’s institutions – British-Irish – should also be enhanced post-Brexit to allow for the radically changed environment, the diverse needs of the various parts of these islands, and the acute need for bilateral coordination.
We have just looked here at institutional frameworks – there is a great deal in the Agreement that creates the conditions for flexible and imaginative solutions, including those relating to citizenship, rights, equality of opportunity. Indeed, twenty years on, several promises of the Agreement remain unrealised: a Northern Ireland Civic Forum, a north/south Consultative Forum, and a joint north/south Parliamentary Forum – plus the possibility of bilateral or multilateral arrangements between members of the British-Irish Council. Could such initiatives – already agreed in principle – now offer means of safely navigating the changes made by Brexit across these islands?
The precedent of differentiated integration within the EU should now be coupled with the precedent of territorial differentiation within the UK in order to enable the type of arrangements that would best reflect and protect the unique needs of Northern Ireland in the Brexit process. These precedents and frameworks are ready to be exploited to the benefit of peaceful relations across these islands in their totality.