Brexit and the conflicts that go hand in hand with it have kept us busy for several years now. One of the most difficult issues is the Northern Irish border and how to deal with it in a post-Brexit world. On 16th February, we talked about the Irish border issue with Professor Michael Dougan, Professor of European Law and Jean Monnet Chair in EU Law at Liverpool University. The talk was co-organized by the Europe Direct Centres Dortmund and Aachen, the Young European Federalists (JEF) in the Ruhr area and the Dortmund Anglo-German Society in the Auslandsgesellschaft.de. Geoff Tranter, Chair of the Anglo-German Society, moderated the talk and the subsequent Question and Answer session.
The Northern Ireland conflict and the Good Friday Agreement
The evening began with an overview on the conflict by Professor Dougan. He started on a very personal note with stories from his childhood in Belfast, sharing some photographs from the time of “The Troubles” (as they are known across Ireland). Professor Dougan told his audience, how he as a child had to hide in a wardrobe during the riots.
The whole conflict between the Protestants and the Catholics was significantly downgraded with the Good Friday Agreement in 1998, which was basically a tolerable solution for both sides. The Protestants, also known as Unionists, achieved their aim of remaining in the UK based on the principle of majority consent. And the Catholics, who were Nationalists and wanted to rejoin the Republic of Ireland, could continue hoping for unification in the future – but in the meantime, could enjoy the benefits of an open border with the Republic.
The Irish border – A never-ending story
Northern Ireland is one of the parts of the UK most affected by Brexit. Of those impacts, the most significant challenges relate to how Brexit might impact upon the current open border between Northern Ireland and the Repubilc – and therefore also upon the Good Friday Agreement, given the importance of the open border for maintaining cross-community support for the peace process, as well as its economic and social importance for across the island of Ireland, to say nothing of the logistical challenges of trying to monitor and enforce such a complex international frontier.
Professor Dougan pointed out that there are effectively two kinds of border controls: The first refers to the movement of people, which is quite easy to deal with because this has little to do with EU law in general, Ireland and the UK never having been fully part of the Schengen Agreement. They have their own agreement, so it is not necessary to show a passport – a situation which remains unchanged despite Brexit. The second type of border control concerns goods and trade, which is more difficult to manage because this is a matter for the EU and the UK, not just the two countries. So, as Professor Dougan explained, this border involves the huge problems of the Customs Union and the Single Market.
The UK’s promises – A vicious circle
Professor Dougan explained that during the Brexit negotiations, the UK made three different promises to the people. The first promise was to leave both the EU, the Customs Union and the Single Market. This implied a hard border with controls on goods between the EU and the UK and therefore between the Republic of Ireland and Northern Ireland. The second promise, however, was that there would be no hard border between the Republic of Ireland and Northern Ireland. This implied that Northern Ireland would stay in the Customs Union and the Single Market – even if the rest of the UK were still to leave. The third promise was that, nevertheless, there would be no new barriers to trade between GB and Northern Ireland. Yet the only way to keep that third promise would be for the whole of the United Kingdom to remain in the Customs Union and the Single Market. However, that entirely contradicted the UK Government’s first promise – creating a vicious circle, from which the only escape was to break one of those 3 promises, but the UK Government appeared reluctant to accept that difficult fact.
From three promises to three backstop proposals
These promises resulted in various backstop proposals. The initial proposal from the EU would have treated Northern Ireland as part of the Customs Union and the Single Market. This, however, would not have been compatible with the third promise made by the UK Government, and so the British Parliament rejected the proposal. The second proposal brought forward by the British Government under Theresa May was that the whole of the UK would remain in the Customs Union, while Northern Ireland would have remained also in the Single Market, but this would have gone against the first and third promises, so this was also rejected by the British Parliament. The third and final proposal made by the British Government under Boris Johnson was based on Northern Ireland de facto being part of the Single Market and the Customs Union, but Northern Ireland would also formally remain part of the UK customs area. This actually looked much like the original EU proposal, but with added complications. However, agreement was finally reached and the UK left the EU in January 2020. Northern Ireland was then part of two different customs unions and consequently everything became more and more complicated. In addition, the EU agreed to make huge compromises by giving power over one of its own external borders to the British government – since the UK authorities are now responsible for managing the frontier of the Customs Union and the Single Market as it applies to Northern Ireland.
Questions and Answers
After his presentation, numerous questions were raised by the audience. Would a new UK government help to solve the issue? Professor Dougan explained, in quite a disenchanted way, that in his opinion anything would be better than the current UK Government, and that the best thing that could happen at the moment would be the implementation of the Northern Ireland Protocol. Looking at Northern Ireland, the current UK Government uses the Unionists as a tool, so even if the protocol is applied there is tension.
Another question referred to EU-UK relations: What can the EU do to make its voice heard? As Professor Dougan explained, the problem is that the EU’s power is very limited,. To put it frankly: The EU tends to respect the rules – the UK does not. Therefore, there are two options for the EU: Firstly, the European Court of Justice could condemn the United Kingdom and impose a fine, which, however, the UK Government could simply refuse to pay. The second option would be to re-introduce tariffs on goods and apply economic and diplomatic pressure. On the other hand, the British Government thrives on its disputes with the EU. And, moreover, neither of these options would help Northern Ireland.
Is there an ideal solution for Northern Ireland? Not in Professor Dougan’s opinion. All we can do is to seek damage limitation. A majority of people in Northern Ireland wanted to remain part of the EU. The best way out of the current mess would have been to have never left the EU in the first place. The border has become a toxic political issue. In addition, all the benefits achieved by the Good Friday Agreement in finding a solution to the conflict in Northern Ireland are at risk. Even if Northern Ireland and the Republic of Ireland were to be reunified, a significant part of the Unionist population would never accept such an outcome. So there is no optimal solution – Brexit means that Northern Ireland has an internal problem to deal with. Professor Dougan ended his quite personal and very informative talk with the words: “It’s all about managing the damage. It’s a depressive message. But we have to make compromises, they aren’t easy”.
Text: Lisa Bednarz & Geoff Tranter