Professor Dagmar Schiek

These days, finding a solution to the ‘Irish problem’ dominates the public debate and negotiations taking place behind closed doors on the UK’s withdrawal from the EU. The EU Commission’s draft protocol on Ireland/Northern Ireland constitutes the only viable starting point in the absence of elaborated proposals by the UK, or the Northern Irish institutions. And yet, agreement on this draft protocol seems elusive, although it constitutes a very modest proposal – in fact too modest a proposal, as I argue in the Northern Ireland Legal Quarterly.

The draft protocol, nicknamed ‘backstop’, addresses the ‘diminution of rights’ in one Article, demanding that the UK should unilaterally prevent any loss of rights, in particular anti-discrimination rights (Chapter I with Article 1 – see page 109 of the draft withdrawal agreement). Similarly, ‘movement of persons’, deceptively and honestly skipping the notion of free movement, is to be safeguarded by the UK alone (Chapter II with Article 2). The bulk of the draft protocol, and indeed its most ingenious invention, consists of the Common Regulatory Area (Chapter III). Its initial Article alludes to Article 26 TFEU, according to which the Internal Market consists of an area without frontiers where goods, persons, services and capital circulate freely. Alas, the common regulatory area only provides an area where goods – including agricultural goods and electricity – circulate freely on the island of Ireland. Chapter III partakes in the supranational character of EU law, with direct effect and supremacy within national law of Northern Ireland. Its provisions are subject to the jurisdiction of the European Court of Justice (ECJ) (see Chapter IV). A subcommittee on Ireland/Northern Ireland is envisaged for administering the protocol, with a mandate to continue negotiating the exact boundaries of the common regulatory area (see Article 8). This might entail extension of its coverage to encompass free movement of persons and services.

Michel Barnier, the EU Commission’s chief negotiator on ‘Brexit’, characterised the Common Regulatory Area as unique and far reaching in a recent speech: ‘Our proposal gives Northern Ireland benefits that no part of a third country enjoys’, he asserts. Nevertheless, I suggest that the draft is too timid, since it neglects those areas where the UK’s and Ireland’s common EU membership underpins the Good Friday Agreement. EU membership provides an essential legal framework for hybridity of personal identities in Northern Ireland, as well as hybridity of the territory itself. This territorial hybridity constitutes substantive preconditions for socio-economic improvement in Northern Ireland, since it allows its inclusion into an all-island economy and the UK economy. Further, while many of  the rights guaranteed in the Good Friday Agreement do not find any parallel in EU law, the EU anti-discrimination acquis and EU citizenship rights are critical underpinnings of its congruent provisions.

As mentioned, the draft protocol obliges the UK to maintain the EU anti-discrimination acquis and citizenship rights unilaterally, which requires squaring the circle: even if the UK maintains Northern Ireland legislation banning discrimination on grounds of racial and ethnic origin, sex, religion and belief, sexual orientation, disability and age, its withdrawal from the EU will remove the unifying force of the ECJ’s jurisdiction for this field. In addition, the UK is unable to guarantee continued rights to free movement, since these rights are reciprocal.

Chapter III on the common regulatory area arguably constitutes the draft’s greatest strengths and its main weakness at the same time. Northern Ireland shall remain part of the EU Internal Market for goods, the Customs Union and VAT area without partaking in the Internal Market for services and free movement of persons (including business). Upon closer inspection, what Michel Barnier presents as benefits for Northern Ireland in fact constitutes a major drawback. The only authoritative statement on Northern Ireland after Brexit from its institutions, more precisely the First and Deputy First Minister, insisted on free movement of goods, services and persons, explicitly referring to low-skilled and highly skilled labour. This recognised the necessity for Northern Ireland’s economy to access labour and to further support, rather than stymy, a thriving service sector. What is portrayed as a unique advantage in the recent speech by Michel Barnier, appears less advantageous if combined with subjecting the Northern Irish economy as a whole to EU state aid law, without access to the Internal Market for the service economy. Above all, as has been noted by others as well, the offer of benefits for Northern Ireland actually betrays the indivisibility of the Internal Market. Metaphorically speaking the benefits offer Northern Ireland the cherries denied to the UK: access to the Internal Market for goods, without having to endure free movement of persons and services. While that exclusion actually constitutes a detriment, it is unlikely for a British government to accept that tiny Northern Ireland could achieve what is denied to Britain.

Accordingly, my suggestion is for the EU Commission to be bolder and make a proposal that does not give in to the battering of free movement of persons on the part of the UK. As Michel Barnier aptly states, when speaking on the whole of the UK:

The United Kingdom has demanded alignment with a substantial part of our standards for goods, though only partially, in order to maintain the same participation in our Internal Market it enjoys today, for these goods only. At the same time, the United Kingdom wishes to remain free to diverge on all the regulations that apply to the factors of production of these goods, whether we think of services, labour, capital or social and environmental standards. Everyone here understands that such a system of ‘single market à la carte’ would be tantamount to offering the UK and its companies a major competitive advantage over companies working in the single market. (Author’s translation from French)

The Commission should recognise that this is also true for Northern Ireland and should therefore revise the draft protocol to expand the common regulatory area to encompass free movement of persons and services. At the same time, it should demand that EU citizenship rights and the EU equality acquis are upheld in Northern Ireland, also subjecting their enforcement, alongside the enforcement of the Common Regulatory Area, to the jurisdiction of the ECJ. Last but not least, the draft protocol should ensure that the UK members of the subcommittee on Northern Ireland are recruited from Northern Ireland in line with the principles of the Good Friday Agreement, with specific provisions for periods when the Northern Irish institutions are dysfunctional.