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Ireland and Citizens’ Rights Again

As has been previously identified and one would think is now widely understood, the first stage of the Brexit negotiations cover citizens’ rights, the UK’s financial settlement and the question about the land border between Northern Ireland and the post Brexit EU.

The EU 27 unanimously adopted the proposition that these three areas had to be at least well progressed before the talks could move on to stage two and discussions could commence on the future trade relationship between the UK and the EU. This decision was taken by the EU 27 on 29th April 2017 and was detailed in an initial publication on the EU Commission’s website on 4th May 2017.

It has been revealed this week that there has been a breakthrough on the financial settlement issue, as he December deadline approaches when the EU will assess whether sufficient progress has been made on the first phase of the negotiations to allow movement to stage two. Apparently, Theresa May is going to deliver the latest offer in person at a dinner with Jean- Claude Juncker scheduled to happen on 4th December.

The question of the financial settlement seemed to exercise UK politicians and press almost to the exclusion of the other two matters, however, now that the financial obligations are apparently coming to a mutually acceptable conclusion the questions about the future land border in Ireland and a dispute resolution mechanism on citizens’ rights have now come into sharp focus.

In the UK there seems to be surprise that the EU are still insisting that “sufficient progress” needs to be reached on the very vexed questions of what to do with the future new land border between the UK and the EU as well as which body is going to be the final arbiter in disputes relating to EU citizens’ rights. However, the EU 27 are quite adamant that the proposed staged framework of the negotiations that they voted for back in April, which was agreed by the Brexit team at the very start of the negotiations in June, is indeed how the negotiations are going to be conducted.

This insistence that the agreed due process should be followed has caused negative comments in some quarters in the UK but really it should have come as no surprise to anyone at all. In line with its commitment to transparency this has been reiterated time and time again by the lead negotiator, Michel, Barnier, with him repeatedly saying he and his team could only operate under their mandate from member states.

The combination of taking the financial settlement out of the immediate spotlight and the quickly approaching deadline to agree the “sufficient progress” on all three of the initial topics of negotiation has propelled the Irish question right into centre stage.

The position at the moment is interesting to say the least. The EU has made a suggestion that it is willing to make a special arrangement for the island of Ireland in order to protect the integrity of the Good Friday agreement which makes eight substantive references to the importance of cooperation between the British/Irish governments through the establishment of a North/South Council whose remit is:

to use best endeavors to reach agreement on the adoption of common policies, in areas where there is a mutual cross-border and all island benefit, and which are within the competence of both Administrations, North and South, making determined efforts to overcome any disagreements.”

Under the Agreement the British Government, pending devolution of powers to a Northern Ireland Assembly, was specifically tasked with making rapid progress on among other things ensuring that there is:

“a new regional development strategy for Northern Ireland, for consideration in due course by the Assembly, tackling the problems of a divided society and social cohesion in urban, rural and border areas, protecting and enhancing the environment, producing new approaches to transport issues, strengthening the physical infrastructure of the region, developing the advantages and resources of rural areas and rejuvenating major urban centres.” 

In real terms, and in the current absence of an Assembly, this suggests that the reintroduction of a hard border between the North and the South, even by default of the consequences of Brexit, would not resonate with the spirit of the Agreement.

In order to avoid the reintroduction of a hard border, whilst simultaneously repeatedly asking the UK Government to offer a proposal as to how this could be resolved, the EU said it was willing to offer a unique solution of allowing the North to trade within the island of Ireland on the same trade conditions that presently operate even though Northern Ireland would technically still be part of the UK and Brexit. It would grant special status to the North of Ireland which in turn would be required to remain in the Customs Union and single market.

This would mean that an effective border control would have to be set up between the island of Ireland and Britain to protect the integrity of the EU’s border with a non-EU country. The importance of which is highlighted in this earlier blog.

This option has been roundly and resolutely condemned by the Democratic Unionist Party (DUP), which has rejected absolutely the suggestion that Northern Ireland operates under different conditions, rules or regulations than the rest of the UK.

The UK government’s position is rather hazy to say the least. It maintains it wants both the open border that is Good Friday compliant and simultaneously a solution that keeps Northern Ireland as an integral part of the UK. Clearly this would not be acceptable to the EU on a number of levels and whilst last week there was a suggestion rather loosely thrown about by one government official that the new border could be patrolled by drones, no concrete proposal with details was actually on offer about the practicalities of implementation of border control from the UK side.

The seemingly impossible conundrum of the island of Ireland, that the UK actors don’t seem to have paid any real attention to until the last couple of weeks, still threatens to be a crunch matter in the December decision on whether enough headway has been made on this subject.

As for removing the UK from the jurisdiction of the ECJ being one of the UK government’s stated “red lines” the EU 27 are asking well if not the ECJ, which body would be suitable?

That disputes relating to citizens’ rights needing independent arbitration are likely to happen post Brexit is understood by the EU 27 from experience. Michel Barnier recently cited as concrete evidence of this the 100 plus letters that Theresa May accepted were mistakenly sent to EU citizens by the Home Office, telling them they were not legally in the UK and requiring them to make arrangements to leave. It was pretty compelling reasoning.

We wait with breath abated for developments before next week. Interesting times.


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