Katy Hayward / Jul 2020
Northern Ireland is part of the territory of the island of Ireland – no wonder it is closely integrated with the Republic of Ireland across the land border. Northern Ireland is part of the state of the United Kingdom – no wonder it is closely integrated with Great Britain across the Irish Sea. This is, in essence, why this small region has featured so heavily in the Brexit process: because the difficulties and complexities of exiting the European Union are exemplified here. And, to tie that knotty problem even tighter, Northern Ireland’s peace process has been built upon those cross-border connections.
The 1998 Good Friday (Belfast) Agreement centred upon three strands of institutions and connections: British-Irish, north-south on the island, and then power-sharing within Northern Ireland in a legislative assembly and executive. That Assembly has powers devolved from the UK Parliament in Westminster. It covers a wide range of competences, including in health, education, environment, agriculture and economic policy. Its devolution settlement in 1998 was soon followed by one for Scotland and Wales. The scope of the powers of these devolved administrations has covered 160 areas of policy which have been within the competence of the European Union. This has meant that the devolved legislatures have been responsible for implementing the regulations or directives of the EU. The upshot of this has been that, over the past twenty years, the different parts of the United Kingdom have been able to enjoy a considerable degree of responsibility and autonomy but all within the broad confines of the European single market.
Brexit means that the UK is leaving the European single market. As a consequence, those 160 areas of policy-making are returned to UK competence. For a portion of these, the UK will return those powers directly to the devolved administrations. However, for others, there are concerns that allowing the different parts of the UK to legislate differently, there could be levels of divergence that lead to barriers to trade and movement within the UK. With this in mind, the UK has produced a White Paper in which it proposes to give the UK Parliament power to create UK-wide legislation for mutual recognition and non-discrimination to avoid barriers to the movement of goods and services within the UK. These competences for the UK Parliament are considerable – more extensive that the EU’s. The devolved governments view it warily, especially in the context of the UK government’s expressed desire to strengthen the UK union. The Scottish government in particular is vocally critical of this ‘power grab’ and see it as a not-so-subtle way to counter a move towards independence (which has taken a boost in public support since the coronavirus pandemic).
Northern Ireland’s position is distinctive. It has been placed in an internationally unique situation by the Protocol on Ireland/Northern Ireland in the Withdrawal Agreement, which means that it will be effectively part of the EU’s single market for goods even though it is de jure outside the EU. If you like, the EU ‘got there first’ in identifying the policy areas in which Northern Ireland would have to be aligned with its rules in order to avoid the open border on the island of Ireland posing a risk to the EU’s single market. These include areas of high regulation, such as organic food, animal welfare, medicinal products and pesticides. Unsurprisingly, these are areas in which the proposed UK-wide legislation would cover. What does this mean for Northern Ireland’s place in the UK internal market?
As noted at the start, Northern Ireland is closely integrated with Great Britain – trade across the Irish Sea is of vital importance for its economy. However, that trade is now subject not just to domestic UK rules but to EU ones. Goods entering Northern Ireland, according to the Protocol, have to meet EU standards; this includes those coming from Great Britain. In effect, this means that whatever the UK and the EU agree upon by the end of transition will determine the extent to which there will be barriers to trade across the Irish Sea. The UK government’s commitment to the UK union is – to put it crudely – thus put to the test by the degree to which it is willing to be in close alignment with the EU. The irony is that the UK is having to argue for the removal of barriers to trade within the UK just as it is moving to bring new ones in between itself and its closest neighbours.
Protocol or not, the fact has been that Northern Ireland can never afford to make a choice between barriers across the Irish Sea or across the Irish land border. The UK white paper is unable to make any promises to Northern Ireland that will enable the UK government to avoid the difficult fact that Northern Ireland has demonstrated from the very start: Brexit means borders. How hard these will be all depend on that UK-EU deal.