The EU-UK Brexit deal is being presented as a triumph for Irish diplomacy and European Commission steadfastness in the teeth of perfidious UK volatility and DUP stolidity.
We are so pleased at preserving the basis of our relationship with Northern Ireland and the UK that we have moved the debate on to ensure that a gratifyingly shifty Britain keeps its word. But we’d be better off looking at what elements of our relationship have been preserved.
Article 49 of the deal states:
“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements…
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the allisland economy and the protection of the 1998 Agreement”.
Leo Varadkar appeared breezy about the wording on alignment. It reassures Ireland, which considers any substantive difference in rules from the EU’s Single Market and Customs Union would inevitably lead to a hard border on the island. We have sought guarantees that no such border will be reintroduced. At the same time, the reference permitted the UK to reject Ireland’s previous demand for “no regulatory divergence”, a less ambiguous phrase that implied that after Brexit Northern Ireland would move in lock step with the Single Market and Customs Union.
Still, as the EU has noted, it is hard to see how Britain can keep its regulations in alignment with the EU’s so as to avoid a hard border across Ireland, while simultaneously leaving the Single Market and Customs Union and preserving the integrity of the UK.
‘Alignment with’ will probably mean ‘continuance of’ the Internal Market and Customs Union. But it might not…alignment does not necessitate scrupulous adherence and if the goals are the same it might be that Northern Ireland would achieve them in different ways. To London, alignment suggests that ‘parallel’ regulatory regimes would be possible on the island of Ireland.
Moreover of course, Britain and Northern Ireland’s DUP are very keen to assert that there will be no difference between the regimes in Northern Ireland and the rest of Britain, so whatever alignment means – scrupulous continuance of or maintenance of shared goals – is likely to apply to the whole UK. That’s a big deal – for Ireland but also for the whole EU. This deal will animate and determine the whole EU/UK relationship.
So let’s see what we’ve all signed up to legally. Both the EU and Ireland have been hammering the UK’s Brexit Minister, David Davis for suggesting it was a mere “statement of intent” or anything short of legally binding. Government Chief Whip Joe McHugh said the Irish government would not “back away” from the Brexit principles if it comes under pressure from the rest of the EU during trade talks with the UK; and as Village went to print a headline was ‘Barnier warns Britain there is no going back on deal’. This agreement is in effect immutable.
Let us assume it is impossible to get agreed solutions on detail between the UK and Ireland…”the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the allisland economy and the protection of the 1998 Agreement”.
The structure of this commitment is that the UK will maintain alignment with certain rules of the Internal Market and Customs Union. It will maintain alignment with rules of the Internal Market and Customs Union that (in addition) “support North-South cooperation, the allisland economy and the protection of the 1998 Agreement”.
The starting point is that the rules must be rules of the Internal Market and Customs Union. Otherwise there’s no obligation on the UK to maintain alignment.
Now the rules of the Internal Market and Customs Union are essentially economic. They require free movement of people and goods and prohibit customs duties except on non-member states. It is only such of those rules as support North-South cooperation, the all-island economy and the protection of the 1998 Agreement that the UK is required to align with. In other words essentially only the economic rules.
We hear that there are 142 areas of North-South cooperation. But it is only those areas that flow from rules of the Internal Market and Custom Union that the UK must continue to comply with.
The 142 areas cover social, environment, consumer and other spheres including economic. This agreement covers only the (essentially economic) areas that flow from the rules of the Internal Market and Customs Union. So most of the 142 areas are, legally, irrelevant to this deal.
This agreement does not cover areas such as social, environmental, labour and (most) consumer affairs, at the moment covered by the EU, because the EU regulated in these areas in the UK although the regulations did not flow from the Internal Market and the Customs Union.
This agreement, whose binding nature we are so enthusiastic about and which we are committed to uphold, covers the issue of regulatory alignment and does not include social and environmental areas within its ambit.
If the EU was going to require a broader regulatory alignment it needed to do it here. For Ireland or the EU to deny this would seem like the bad faith we’re so keen to impute to the UK.
There is no chance the UK will open itself to arguments that these areas need to be addressed in phase 2 of the deal. The agreement suits the Tories and the DUP, with their visceral predilections for avoiding ‘red tape’, only too well.
Northern Ireland (and in the future perhaps the rest of the UK) will not now have to observe EU regulations on social, environmental, labour and (most) consumer affairs.
Tory Britain does not like red tape. In 2007, David Cameron said “It will be a top priority for the next Conservative government to restore social and employment legislation to national control. John Major first negotiated a UK-opt out from the social chapter of the Maastricht treaty in 1992 (though Labour moved quickly to incorporate it into UK law after coming to power in 1997). This agreement is a Tory dream. The Tories have been trying for a generation to avoid compliance with what was called the Social Chapter, of the EU. And now they can. First in Northern Ireland but the logic of the agreement is that it will extend to the rest of the UK.
Northern Ireland and perhaps the rest of Britain can trade into Ireland and the rest of the European while applying lower standards on social, environmental and other issues.
Regulatory alignment should have been across the range of issues covered by the EU. They are listed in the Lisbon Treaty, the Treaty on Functioning of the European Union and include:
“The internal market, Free movement of goods, Agriculture and fisheries, Free movement of persons, services and capital, freedom, security and justice, competition, taxation and approximation of laws, Economic and monetary policy, Employment, Social policy, the European Social Fund, Education, vocational training, youth and sport, Public health, Consumer protection, Trans-European networks, Industry, Economic, social and territorial cohesion, Reseach and technological development and space, Environment (climate change), energy, Tourism, Civil protection and Administrative cooperation”.
If we wanted the UK to commit to regulatory alignment on these issues, enforced either by EU or UK courts, we should have insisted on it in the deal.
The restriction to border issues has allowed the antiregulation UK to outmanoeuvre the EU, led in this instance by Ireland. NI will seek to lower social and environmental standards, and the UK will seek to mirror those standards. Moreover they will apply those standards in ways that prejudice not just Ireland but the entire EU.
The restriction in the first set of discussions to border issues may have dictated the limitation on the agenda for regulation to the obvious border issues of the Internal Market and Customs Union but it is now too late to go back.
Prepare for a UK dumping goods and services that flow from its low standards on a high-standard, highly-regulated EU. And profiting from it, at least in the short term.
Consider the appeal for a multinational inward investor of avoiding the pesky Environmental Impact Habitats Directives. For example – why site your manufacturing plant in Dundalk when you can save costs building in Newry?
Prepare then too for a strengthening of voices within the remaining EU countries that the EU too needs to reduce standards to eliminate the new competitive advantage attaching to the low-standard UK.
Reflecting a general complacency, Kevin O’Rourke, Professor of Economics at Trinity College Dublin, wrote: “the EU has sought and obtained an impressive series of concessions from the UK, and the UK will be held to its word”.
It is extraordinary that the Trade Unions and environmentalists in Northern Ireland and the rest of Britain, are not hitting the streets to protest this reduction in standards. And their colleagues in the Republic and indeed in the rest of Europe should be very concerned too.
In general the press and the body politic in Northern Ireland, Ireland, the UK and the rest of the EU have simply missed the point.