The UK White Paper and the Irish Dimension: The 1998 Agreement, North-South cooperation & avoiding a hard Border by Dr Katy Hayward and Prof David Phinnemore
July 2018 the UK Government published its much-awaited White Paper on The Future Relationship between the United Kingdom and the European Union. Withdrawal negotiations between the UK and the EU have effectively stalled, notably over the issue of how to avoid post-Brexit a hard border on the island of Ireland. The hope among negotiators is that the White Paper will clarify the UK’s aspirations regarding the future UK-EU relationship such that progress towards concluding a withdrawal agreement in October can be made, thereby avoiding the prospect of a ‘no deal’ Brexit. Progress is most needed on the Protocol on Ireland/ Northern Ireland and its backstop arrangements for ensuring that post-Brexit the 1998 Belfast ‘Good Friday’ Agreement and North-South cooperation on the island are protected and hard border are avoided. There are also UK commitments to preserve the integrity of the internal UK market and Northern Ireland’s place in it. This set of slides assesses the extent to which the future UK-EU relationship proposed in the White Paper would deliver on commitments relating to Northern Ireland and Ireland made by the UK and the EU in their Joint Report of December 2017. A first slide summarizes the state of play in negotiations on the Protocol and its backstop arrangements, and the areas that the White Paper attempts to address. A set of three slides then presents the Joint Report commitments alongside relevant statements in the White Paper and offers a colour-coded assessment of the extent to which the White Paper delivers on the Joint Report commitments. [Green background = agreed. Yellow background = work required. Bold font = key topics. Red font = issues still not addressed by White Paper]. A fifth slide considers whether the UK-EU relationship envisaged in the White Paper would avoid any need for checks or controls on the Irish border. A further pair of slides compares the White Paper with the Technical Note that the UK government put forward as an alternative to the EU’s backstop proposal (i.e. proposing an all-UK rather than NI-specific temporary customs arrangement). A final slide provides a summary of progress made by the White Paper in relation to key areas of interest for NI/IRL and the Irish border. Dr. Katy Hayward (@Hayward_Katy) Prof. David Phinnemore (@Dphinnemore) Work in progress and comments welcome
which free movement of goods is ensured and North-South cooperation is protected (Article 3) Movement of People Common Travel Area and associated rights to continue (Article 2) Rights of Individuals No diminution of rights, safeguards and equality of opportunity as set out 1998 Agreement; UK to facilitate work of human rights and equality bodies (Article 1) Preamble Positions derived from Joint Report and other statements Free Movement of Goods Northern Ireland… shall be considered to be part of the customs territory of the EU; EU law on VAT and excise duties to apply (Article 4) Agriculture and Fisheries EU law on (a) sanitary and phytosanitary rules and (b) production and marketing of agricultural and fisheries products to apply to NI (Article 5) Single Electricity Market EU law governing wholesale electricity markets to apply to Northern Ireland (Article 6) Environment EU law on environmental protection concerning movement of goods to apply to NI (Article 7) Other Areas of North-South Cooperation Maintain conditions for continued cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport (Article 8) State Aid EU law governing state aid to apply in respect of trade between NI and the EU (Article 9) Specialised Committee Establish a Specialised Committee to facilitate and implementation and application of Protocol including discussion of proposals from North- South Ministerial Council (Article 10) Supervision and Enforcement EU institutions and bodies – including Court of Justice – to have jurisdiction over Common Regulatory Area (Article 11) Common Provisions Application and implementation of Protocol; application of new EU law; representation in EU decision-shaping; risk assessments; personal data protection (Article 12) Safeguards Safeguards in cases of serious economic, societal or environmental difficulties (Article 13) Protection of Financial Interests Counter fraud and any other illegal activities relating to EU and UK interests in Northern Ireland (Article 14) Subsequent Agreement Replacement in part or in full of Protocol by future UK-EU agreement (Article 15) Annexes Lists of relevant EU law in three annexes to be integral part of the Protocol (Article 16) The EU’s draft Protocol on Ireland/Northern Ireland (March’18) Agreed Agreed in principle Under discussion Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome = What White Paper attempts to address
(1/3) Joint Report (2017) White Paper (2018) Belfast ‘Good Friday’ Agreement ‘must be protected in all its parts’ (para 42) ‘honouring the letter and the spirit of the Belfast (‘Good Friday’) Agreement’ (p. 9) ensuring that no diminution of rights is caused by its departure from the [EU], including in the area of protection against forms of discrimination enshrined in EU law (para 53) facilitating the related work of the institutions and bodies, established by the 1998 Agreement, in upholding human rights and equality standards (para 53) The UK is committed to membership of the European Convention on Human Rights (ECHR) [To be covered via Protocol to Withdrawal Agreement, currently shaded yellow] ‘The United Kingdom confirms and accepts that the Common Travel Area [CTA]and associated rights and privileges can continue to operate…’ (para 54) ‘The CTA means that Irish citizens will continue to enjoy a special status in the UK, provided for by domestic legislation…’ (p. 33) ‘honour their commitments to the PEACE and INTERREG funding programmes’ under the current multi-annual financial framework. Possibilities for future support will be examined favourably (para. 55) ‘remains committed to delivering a future PEACE programme welcomes Commission's commitment to a future programme protecting this work and broader cross- border cooperation (p. 77) Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement’ (para. 42) ‘to protecting the operation of the 1998 Agreement, including its subsequent implementation agreements and arrangements’(para. 43) ‘to protecting and supporting continued North-South and East- West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North- South implementation bodies’ (para 48) ‘commitments to the provision of Irish language broadcasting … as set out in the [Agreement] and a subsequent [MoU], will be guaranteed through UK statutory and domestic provisions’ (p. 37) ‘all North-South cooperation on agriculture flowing from the [Agreement] will be protected in full’ (p. 24) ambitious provisions on the recognition of professional qualifications (p. 27) necessary conditions must be maintained for North- South cooperation on transport (p. 43) facilitating the continuation of the Single Electricity Market (SEM) (p. 44) security partnership to allow the PSNI to continue to tackle security threats, and serious and organised crime; cooperation with law enforcement agencies in Ireland to continue (p. 71) Would the White Paper deliver on UK-EU Joint Report Commitments? (2/3) Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
a hard border, including any physical infrastructure or related checks and controls’ (para. 43) ‘to [UK] guarantee of avoiding a hard border’ (para. 49) UK-EU ‘free trade area for goods ... would avoid friction at the border and ensure both sides meet their commitments to Northern Ireland and Ireland’ (p. 13) Facilitated Customs Arrangement [plus common rulebook for manufactured goods and agriculture] … would remove the need for customs checks and controls (p. 16) ‘necessary regulatory requirements … [to] remove the need to undertake additional regulatory checks at the border – avoiding the need for any physical infrastructure, such as Border Inspection Posts, at the border between Northern Ireland and Ireland (p. 23) ‘avoiding the need for any hard border between Northern Ireland and Ireland’ (p. 97) ‘to preserving the integrity of its [UK] internal market and Northern Ireland's place within it’ (para. 45) ‘the package presented in this White Paper would: … protect the union, … preserving the constitutional and economic integrity of the UK‘ (p. 97) ‘to protecting North-South cooperation’ (para. 49) The White Paper envisages extensive future cooperation with the EU. Such commitments have the potential to relate to and protect future North-South cooperation. Would the White Paper deliver on UK-EU Joint Report Commitments? (3/3) Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
checks and controls? Checks/ Controls What the White Paper says Restricted goods UK government to negotiate compliance activity necessary ‘for licensing regimes and arrangements, such as export licenses, for the movement of restricted products’ (p. 21) Prohibited goods ‘remove the need for customs checks and controls between the UK and the EU as if in a combined customs territory’ (p. 16) VAT and Excise ‘the UK proposes the application of common cross-border processes and procedures for VAT and Excise, as well as some administrative cooperation & information exchange to underpin risk-based enforcement’ (p. 18) Agricultural produce ‘Common rulebook for agri-food encompasses those rules that must be checked at the border’ (p. 23) plus Northern Ireland and Ireland as single epidemiological unit (p. 24) Payment of tariffs ‘No tariffs on any goods’ between UK and EU (p. 8) plus Facilitated Customs Arrangement [FCA] to allow UK to charge own tariffs plus Phased introduction of reciprocal tariff collection regime (p.16) Quotas Elimination of quotas on UK-EU trade (p. 16) Rules of Origin ‘Mirroring the EU’s customs approach at its external border would ensure that goods entering the EU via the UK have complied with EU customs processes… incl. customs declarations, routine requirements for rules of origin, and entry and exit summary declarations’ (p. 16) Regulatory compliance Common rulebook on manufactured goods plus expectation of greater international convergence (ISO) (p. 20) Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
and the White Paper on the future UK-EU relationship (12 July 2018) Topic What the Technical Note says What this implies What the White Paper says What this implies EU Customs territory ‘the territory of the UK would form part of the EU's customs territory’ or ‘creating a new customs territory comprising the customs territories of the UK and the EU’ UK would either be in The customs union or A customs union with the EU ‘As if in a combined customs territory with the EU, the UK would apply the EU’s tariffs and trade policy for goods intended for the EU. The UK would also apply its own tariffs and trade policy for goods intended for consumption in the UK’ (p. 16) The UK would operate two different customs regimes on one territory CET ‘applying the EU's common external tariff (CET) at the UK's external border’ UK would charge same tariffs as EU ‘the UK would apply the EU’s tariffs and trade policy for goods intended for the EU’ (p. 16) UK will charge different tariffs to EU; hence two customs regimes UCC ‘alongside the Union Customs Code (UCC)’ UK would apply same rules as EU ‘The UK would maintain a common rulebook with the EU, including the Union Customs Code …and would apply and interpret those rules consistently with the EU’ (p.17) NB this is just an area ‘for discussion with EU’ (p. 16) not a commitment Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
the White Paper says What this implies VAT and Excise ‘application of common cross-border processes and procedures’; ‘some administrative cooperation and information exchange to underpin risk-based enforcement’ Would like things to continue as they are “the UK proposes the application of common cross-border processes and procedures for VAT and Excise, as well as some administrative cooperation and information exchange to underpin risk-based enforcement.” Quite unsure how to fix this one IT systems ‘need access to relevant IT systems to enable information exchanges’ Continuity in access to EU systems “The UK would want to secure access to relevant IT systems, ensuring the timely transfer of data between UK and EU authorities.” in relation to complex compliance, security, justice etc. Continuity in ‘access’ to systems; futility in developing alert system of its own CCP ‘and such other parts of the Common Commercial Policy that are required…’; ‘would not be bound by the CCP [Common Commercial Policy]’ UK to selectively apply only to extent needed for border No direct mention, but ‘UK’s proposals for its new economic partnership with the EU would allow the UK to negotiate new international trade agreements in line with its priorities and interests covering goods, services, investment, data’ (p. 48) Wants to be completely outside the CCP Comparing the Technical Note and the White Paper (contd.) Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
by White Paper Progress to be made still + Hopes to ensure ‘that the operational legal text the UK will agree with the EU on the ‘backstop’ solution as part of the Withdrawal Agreement will not have to be used’ (p 9). + Recognition of where Northern Ireland has specific needs within UK/EU arrangements, incl. mutual recognition of qualifications; security, justice and police cooperation (e.g. EAW); broadcasting (Irish language) + All-island regimes maintained: single epidemiological unit; single electricity market + North-South cooperation protected or envisaged in specified areas: transport (incl. rail), agriculture, security, policing + Future PEACE programme to be supported + ‘consider participation in … EU programmes’ + Proposals relating to political, technical and administrative representation of UK to EU (e.g. Governing Body) • Detail as to how to meet specific needs/requirements of Northern Ireland • Protection and upholding of rights, equality standards and non-discrimination in Northern Ireland (incl. domestic legislation to protect CTA and Irish citizens’ rights) • Protection of full range of East-West and North-South cooperation • Operation of North-South bodies • Management of VAT and Excise payments across UK-EU border • Finalising an agreed Protocol on Ireland/Northern Ireland incl. in relation to customs. Will Technical Note still stand or will UK accept Northern Ireland-specific backstop? • Representation of Northern Ireland-specific needs in relation to EU (e.g. Specialised Committee as well as the Joint Council) • Extent to which EU will accept UK’s proposals for FTA plus Facilitated Customs Arrangement as sufficient to avoid need for regulatory and customs checks and controls at the border Dr Katy Hayward & Prof David Phinnemore Work in Progress; Comments welcome
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