Professor Dagmar Schiek*

Introduction

In another historical move, the European Council, composed of EU Member States minus the UK, has approved the EU Commission’s Draft Withdrawal Agreement (DWA) of 14 November with minimal changes, alongside the political declaration of 22 November 2018 on the future relationship between the EU and the UK. I have been hesitating to engage with this interim result: not only because of the difficulty of assessing the 585 pages of legal text with numerous and slightly confusing cross-references and stacked exceptions, but also because this whole exercise may be futile if the UK Parliament does not accept the document. However, having seen how the UK Prime Minister has achieved a majority in the UK Parliament for all her Brexit manoeuvres so far, it is not unlikely that the EU’s offer is accepted. That likelihood is even higher because it is a very generous offer indeed, considering the EU’s principles, such as the indivisibility of the Internal Market and the autonomy and integrity of its legal order.

Bearing in mind the latter, I agreed to update my assessment of the implications of the earlier March draft agreement for the island of Ireland, which was published in the Northern Ireland Legal Quarterly. In the following, I reconsider my earlier position in light of the November DWA. In that article I addressed the following questions. What does this offer mean for Ireland/Northern Ireland? Does it enable the hybridity of Northern Ireland as a territory in the government of which the UK and Ireland both have a stake? And does it allow the people of Northern Ireland to continue existing in a hybrid identity, choosing to be either British or Irish or both and, whatever they choose, to meander between Ireland and the UK? How does the agreement impact on the all-island socio-economic processes which are not only a precondition of prosperity specifically in Northern Ireland, but also underpin services in the public interest such as health care, childcare and education?

As argued in the article, the earlier March draft agreement presented problems in relation to safeguards for EU citizenship rights relating to the freedom of choosing one’s place of living and working on the island of Ireland, as well as very limited support for maintaining the body of EU law relating to equality. An even more severe problem was the way in which the March draft agreement limited socio-economic integration on the island of Ireland to free movement of goods (including agricultural goods and electricity). This left the service economy (relying on freedom to provide services and freedom of establishment) unprotected, with potential dire consequences for a number of social services such as health care, childcare and education, which are provided across borders, and also constitute a vital element of a mature economy. So, how does the much anticipated ‘new deal’ address these problems?

I believe that accepting the EU’s offer would definitely be more advantageous than a ‘no deal’ scenario for Ireland and Northern Ireland – while there are, of course, considerable detriments compared to maintaining EU Membership. Containing the proverbial silver-lining, the November DWA’s Protocol on Ireland/Northern Ireland institutionalises a number of opportunities to amend or even expand its content. One could refer to these provisions as dynamisation clauses. The specific rules on the position of Ireland/Northern Ireland may continue to exist alongside the future EU/UK relationship, which thus far appears as a blueprint across just 147 paragraphs in a document entitled ‘Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom’. Of course, the final Withdrawal Agreement will differ from the EU Treaties in its legal quality, which results in considerable uncertainty for business and citizens on the question as to how far the UK will actually comply with its obligations.

This conclusion is developed in three steps, building on the former assessment of the Draft Withdrawal Agreement of 19 March 2018 in relation to Northern Ireland. First, I assess how the common regulatory area, the former Part III of the Protocol on Ireland/Northern Ireland, has developed, whether the new provisions improve on the last version, and how they compare to no deal. Second, I ask the same question in relation to citizenship rights and rights to non-discrimination and other human rights protection elements. This requires a comprehensive assessment of Part II of the main withdrawal agreement on citizenship rights alongside the two relevant articles of the Protocol on Ireland/Northern Ireland. Finally, I briefly assess the different dynamisation clauses in the Protocol, and the intricate supervision and enforcement regime as it applies to these three aspects.

What became of the ‘common regulatory area’?

As will be recalled, the EU Commission’s initial proposal introduced this novel concept in order to provide for Northern Ireland to remain part of the EU Internal Market for goods (including agricultural products and electricity), the EU Customs Union and the EU VAT area. This partitioned the internal market for Northern Ireland into free movement of goods (where Northern Ireland was to be included) and free movement of workers, freedom of establishment, freedom to provide services and free movement of capital (where Northern Ireland will be excluded). The reasoning behind this was that curtailing free movement of goods would require physical infrastructure for border control. By contrast movement of persons for purposes of work, establishment or providing services could be controlled beyond the border, for example through the hostile environment against people without rights to move established by the UK Immigration Act 2014.

The term ‘common regulatory area’ has been abandoned. Instead, the seven articles on the latter have been expanded to eight (Articles 6–13), with Annexes 2–10, comprising no less than 150 pages altogether. This substantive part creates a single customs territory, comprising the whole of the UK and the EU (Article 6). However, EU customs legislation only applies to the UK in respect of Northern Ireland (Article 6(2)). EU Customs legislation comprises EU Directives and Regulations implementing the Customs Code, the Common Customs Tariff, legislation establishing the system of reliefs from customs duties, and the international agreements comprising customs rules applicable to the Union. These will apply to Northern Ireland, but not to Great Britain (GB). This differentiation aims to ensure that no controls on movements of goods on the island of Ireland are necessary, while the UK (without Northern Ireland) is not prevented from concluding international trade agreements after the end of the transitional period. Overall, this results in a graded application of the customs territory and free movement of goods. This becomes even more complex in light of the specific authorisations that can be made by the Joint Committee given the responsibility of implementing and supervising the Withdrawal Agreement. The table below does not mirror the full complexity of the field, but aims to give a rough overview.

Figure 1: Overview of the Customs Union and free movement of goods in the Protocol Ireland/Northern Ireland

This graded system establishes Northern Ireland as an area that complies with EU rules and UK rules at the same time, which obviously offers opportunities for the regional economy as far as trade in goods is concerned. Northern Ireland is subject to bans on tariffs and equivalent measures, discriminatory taxation and quantitative restrictions of imports and exports and equivalent measures as a result. The Protocol on Ireland/Northern Ireland stresses that the UK may maintain its own internal market by ensuring unfettered access of Northern Irish goods to GB, while endeavours should be undertaken to facilitate access of GB goods to the Northern Irish market.

The partial access of the UK to the EU Internal Market for goods triggers a number of safeguards. These are mainly comprised in Annex 4, in its six parts entitled: taxation; non-regression of environmental protection; labour and social standards; compliance with multilateral labour and social standards; state aid; and competition law. As regards state aid, there is some improvement from the former draft. First, the EU law ban on state aid only applies to trade between the parts of the single customs territory (Annex 4 Article7, with references to Annex 2 and 8), while under the old version no differentiation was made between the service economy and trade. Further, not only Northern Irish businesses, but also GB businesses are subject to the ban on state aid. This enhances fairness between business in different parts of the UK, and also avoids excluding business from the Internal Market in services while subjecting it to state aid provisions. Similarly, the EU ban on cartels, abuse of a dominant market position and anti-competitive concentration only applies in so far as it affects trade, and also to both GB and Northern Ireland. In regards to tax law, environmental protection, and social and labour standards, there is no provision of applying EU law directly. Instead, there is a general obligation to maintain standards established in the EU over the last 45 years. The differentiation between the different areas is enhanced through a variation of enforcement mechanisms, which will be returned to below.

The new DWA would prevent GB from acquiring competitive advantages while also partially participating in the EU Internal Market for goods. It is thus fairer for Northern Ireland’s businesses, while also granting some opportunities to act as a bridgehead into the EU Internal Market. However, the agreement does not extend the advantages of access to services markets (via freedom to provide services and freedom of establishment) or to free movement of labour, thus maintaining competitive advantages of Ireland over Northern Ireland and GB. These limitations also inhibit all-island processes in services of public interest, such as education, care or public transport. However, as in the March version, there is the prospect of dynamic development of the Protocol on Ireland/Northern Ireland’s content: Article 13 (entitled ‘Other Areas of North–South cooperation’) charges the Joint Committee with constantly assessing whether maintaining North–South cooperation is sufficiently served. This suggests that the Joint Committee may recommend extending other aspects of the EU Internal Market or even EU citizenship rights to Northern Ireland. This may be suggested by the exemplary list of areas, which comprise service industry categories, such as transport, health, justice, security, tourism and broadcasting.

Rights, safeguards and equality of opportunity and citizenship rights

While the provisions on free movement of goods have been considerably expanded in the DWA, no such expansion can be seen in the other two areas. Articles 1 and 2 of the March draft agreement have been renumbered to Articles 4 and 5 respectively, without any change in wording. The UK alone remains obliged to ensure that no diminution of rights, safeguards and equality of opportunity flows from its withdrawal from the EU (Article 4). But this remains an impossible task: withdrawal from the EU withdraws EU citizenship from UK citizens, and that loss of rights cannot be addressed by dedicated mechanisms of national law. However, the UK is able to maintain protection of rights as required by six anti-discrimination Directives listed in Annex 1 by retaining the implementing Acts as national law. These Directives comprise bans on discrimination in employment and self-employed occupation on grounds of sex, ethnic and racial origin, religion and belief, sexual orientation, disability and age (Directives 2010/41/EU, 2006/56/EC, 2000/78/EC and 2000/43/EC respectively), bans on discrimination in access to and provision of goods and services on grounds of sex and racial and ethnic origin (Directives 2004/113/EC and 2000/43/EC) and bans on discrimination on grounds of ethnic and racial origin in education, health care and social advantages (Directive 2000/43/EC). Article 4 also obliges the UK to continue facilitating the relevant bodies under the Good Friday Agreement, thus elevating the EU to a part guarantor of that agreement. This is also mirrored in the mandate of the specialised committee (Article 16 Protocol), which shall consider matters brought by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland. This new subparagraph provides a specific provision for implementing obligations under the Good Friday Agreement independently of the fragile institutions established by that agreement.

As regards EU citizenship rights, comprising rights to free movement of persons in the main, the assessment is less positive. Article 5 allows for Ireland and the UK to maintain a Common Travel Area (CTA) and burdens the UK with the obligation to ensure that this can be managed without Ireland violating its EU obligations to allow free movement of all EU citizens into its area. Thus, the UK will have to intensify post-border controls if it wishes to ensure that no EU citizen claims a right to work, study or engage in business through establishment or service provision in its territory on the back of moving freely into Ireland. This may well mean that business and civic organisations in Northern Ireland are subject to additional hurdles such as extra checks of entitlements to open a bank account, rent a flat etc. Such extra checks, if not handled with utmost care, may enhance tensions between the two communities which have never fully abated in Northern Ireland, as well as reinforcing discrimination against ethnic minorities. The weak legal quality of the CTA has already been highlighted by numerous experts. Some of them have recommended the establishment of an international agreement between Ireland and the UK over the CTA. Given that both countries do not recognise any direct effect of supremacy of international agreements within their states, such an agreement can never award the same level of protection as EU law.

As a consequence, the provisions of the DWA on protecting citizenship rights remain relevant for Northern Ireland. These provisions, which are located in Part II, only protect those who have used their EU rights, either as EU citizens (including Irish citizens) in the UK or UK citizens in the EU, and their family members (Article 10). While there are good arguments to support the view that Irish citizens in Northern Ireland are EU citizens using their rights in the UK, this view is disputed on the basis of case law on Directive 2004/38, and even more so for those citizens who have dual citizenship. UK citizens in Northern Ireland are only protected if they are frontier workers at the end of the transition period, either with all their employed or self-employed work or with a part thereof. Furthermore, Part II of the DWA does not protect freedom to provide services across a border at all. It allows more favourable treatment of Irish citizens compared with other EU citizens if this is necessary to maintain the CTA (Article 38(2)). This provision seems to diminish rights guaranteed under EU law, which ban different treatment of EU citizens on grounds of their nationality (Article 18 Treaty on the Functioning of the EU (TFEU)). As elaborated in evidence to the House of Commons’ Northern Ireland Committee, according to past case law of the Court of Justice of the EU (CJEU) this excludes treating EU citizens less favourably than non-EU citizens (such as UK citizens from April 2019). It would seem strange if treating EU citizens from one nation (e.g. Ireland) differently from EU citizens from other nations should be condoned by an agreement ratified by the EU.

Implementation, supervision and enforcement

Any substantive provisions of the DWA will be useless if they cannot be enforced adequately . This raises key questions. Is the DWA reliable in the sense that it provides a stable legal framework, on the basis of which citizens and Member States and the EU itself can expect the UK to follow its terms? Or is the DWA a fine international agreement, such as the Good Friday Agreement, which – according to the UK Supreme Court in its ruling on the challenges to the UK’s declaration of intent to withdraw from the EU – is not judicially enforceable in its main components other than by reliance on the national implementation through the Northern Ireland Act 1998?

These questions are prompted by a comparison between the EU legal order and the new legal order that would be established by the coming into force of the DWA. While no legal order is perfect in the sense that it engenders full compliance, the EU legal order has achieved a much higher level of compliance than other agreements under public international law, coming close to the effectiveness of national law in non-failing states. This success relies on the supremacy of EU law and the direct effect of many of its provisions. The former principle entails that, in the event of a conflict between EU law and national and sub-national law, EU law prevails. The latter principle endows citizens and corporate (economic) actors with the ability to rely on directly effective provisions of EU law before national courts. Further, the doctrine of state liability gives citizens a remedy against Member States which do not implement EU law, whether or not it is directly effective, correctly or on time. This doctrine means that citizens can retrieve any damage they suffer on grounds of such non-compliance. These three doctrines are closely linked to the role of the CJEU, which provides authoritative interpretation of EU law (securing its autonomy and unity). The CJEU can also be accessed by the EU Commission, the EU Member States and EU citizens if they are subjected to EU acts directly, or indirectly through the reference procedure. These procedures and principles also replace the enforcement of international agreements by retaliation: if one party does not comply with an international covenant, frequently other state parties may also not comply, or – in the area of international trade agreements – retaliate with punitive tariffs and other instruments.

The March DWA already indicated that the final version would be somewhere between these traditional international law instruments and the quality of EU law. As in agreements of the EU with its neighbouring states, arbitration would be the first instance of conflict resolution, awarding both the UK and the EU retaliation options if it failed. However, in relation to Part II (citizenship rights) a strong role for the CJEU would be maintained, and this would also apply in relation to Ireland/Northern Ireland in so far as the UK region of Northern Ireland would be granted access to the EU’s Internal Market for goods (and its Customs Union). The latest draft contains a complicated stacked system of enforcement and legal interpretation provisions.

The regular system is comprised in Articles 4, 158–181 DWA. Article 4 demands that the Agreement has the same effect as EU law, and that the UK legislates accordingly. Its courts shall consider CJEU case law issued before the end of the transition period as binding and have due regard to future CJEU case law when interpreting the Withdrawal Agreement. Only in relation to Part II (protection of citizens’ rights) does some residual jurisdiction of the CJEU remain: UK courts may refer questions on the interpretation of its provision to the CJEU – though they are under no obligation to do so (Article 158 DWA). While the latter is formally a reduction in the level of protection, the legal system of the UK makes it difficult to force even a last instance court to make a reference to the CJEU. Thus, the difference in practice will be minimal. In relation to Part V (financial obligations), a stronger role of the CJEU is maintained.

Beyond this, the offered Withdrawal Agreement reduces the opportunities for judicial enforcement of its provisions. It also lessens the options of the EU and the UK to retaliate in cases of non-compliance in comparison to the March draft agreement. The regular enforcement procedure is relegated to the Joint Committee, where the UK and the EU are represented (Articles 165–169). In cases of non-agreement, an arbitration procedure is commenced (Articles 170–181, plus a special annex). Unilateral retaliation has been eliminated. If the UK does not comply with an arbitration award, the EU will have to apply for a penalty to the original arbitration panel. Only if that penalty is not complied with can the EU suspend obligations arising from any provision of the DWA except its Part II (citizens’) rights or any other agreement between the EU and the UK under the conditions of that agreement.

The Ireland/Northern Ireland Protocol provides for stronger enforcement mechanisms. First of all, Article 18 allows unilateral safeguarding measures. Further, in the field which replaced the common regulatory area, a stronger role for the CJEU prevails: in relation to customs legislation (Article 6(2), technical regulations and authorisations (Article 8), VAT and excise (Article 9), agriculture and environment (Article 10, Annex 5), the single electricity market (Article 11) and state aid (Article 12, Annex 4 Article 7 (1)), the full jurisdiction of the CJEU is maintained, alongside the usual EU Commission competences. In relation to the environment this only applies to the EU legislation enumerated in Annex 5. Maintaining the existing levels of taxes, environmental, labour and social standards and avoiding divergence from EU competition law and state aid beyond Northern Ireland is entrusted to specific enforcement bodies, which the UK has to establish under national law, while allowing the EU Commission some pleading rights. In these fields, arbitration does not apply. Notably, there is no role for the CJEU in supervising rights, safeguards and equal opportunities or the continuation of the CTA. However, in the first area there is a role for the Human Rights and Equality Commissions.

Overall, this results in a staged design of enforcement, with increasing intensity, as summarised in the diagram (Figure 2) below.

Figure 2: Staged design of enforcment

Staged entry into force of the Protocol as a temporary measure

The Protocol on Ireland/Northern Ireland in its main parts only enters into force after the end of the transitional period, which under the DWA can be extended once for up to 24 months (Article 132). In principle the EU and the UK are committed to conclude an agreement that prevents the Protocol from becoming relevant at all (Article 2 Protocol).

Nevertheless, some of its provisions enter into force once the DWA becomes legally binding (Article 185). These are Articles 14(3), 16, 17 (1–4, 6), which all refer to preparatory activities of the subcommittee for this Protocol, Article 21, on the status of the Annexes and parts of Annexes 2, 3, 4 and 9. The provisions from these Annexes refer to the following: retaining the UK within the EU trade defence and generalised scheme of preferences systems for customs; establishing mutual cooperation in this area and the practical preparation of this through drafting of a specimen UK movement certificate; and preparatory activities of the Joint Committee for operating the rules on tax, environmental protection and state aid. These provisions evidence the resolve of the drafters to ensure that the Protocol is fully functional at the end of the transition period, because the Specialised Committee (Article 16 Protocol) is set up before any preparatory acts have been completed.

Instead of a conclusion: where to go from here?

I have already announced my conclusion in the Introduction: accepting the DWA will be advantageous for the UK and Northern Ireland if compared with the prospect of a no-deal ‘Brexit’, though it does not offer the same advantages as EU Membership. The EU’s offer does not constitute a qualitative change in differentiation between Northern Ireland and GB. The basis for such differentiation was laid much before the Good Friday Agreement, though the Good Friday Agreement provided a legal base for the region’s hybridity. The differences between GB and Northern Ireland today encompass areas as diverse as marriage and abortion rights, the legal regime for real property, the structure and basis of employment and anti-discrimination law, phytosanitary standards for agricultural products (a difference which requires checks of goods travelling from GB to Northern Ireland already), the organisation and funding of the healthcare and higher education sector, and most recently provisions for company tax. The offer to Northern Ireland to become a partial bridgehead into the EU’s Internal Market only partly balances the negative effects of ‘Brexit’ for this region specifically. Overall, all of this is temporary – so the really interesting question is where to go from here?

The Protocol provides a clear procedure guiding its own extinction: Article 20 provides for a review of its necessity at any time, should the EU or the UK so desire. The review is provided by the Joint Committee, which may decide that some or all of the provisions have been superseded by subsequent agreements. Contrary to some mockery in the UK press, e.g. in the Evening Standard and The Telegraph, this is not a potentially endless loop through which the UK can be forced to remain bound by the Protocol forever. Any disagreement under the Protocol can be addressed through the arbitration procedure (Articles 171–180 DWA), which is not excluded from applying to Article 20 Protocol. Thus, there is no procedural hurdle for the UK to have the Protocol superseded.

However, the substantial hurdles may be much higher. Even a short glimpse into the agreed political declaration setting out the framework for the future relationship between the EU and the UK of 22 November 2018 defies any optimism for a speedy superseding of the Protocol. The future relationship clearly goes beyond a mere free trade agreement in that it also provides for: future participation of the UK in a number of programmes; common continuation of the peace funding for Northern Ireland; maintaining regulatory alignment; continuing to share support for core values and human rights through continuing membership in the European Convention on Human Rights; maintaining equivalence of financial services, and much more. However, the declaration also maintains – on the EU’s insistence – the indivisibility of the four freedoms as part of the integrity of the Internal Market and the Customs Union, as well as the UK’s determination to end free movement of people and to retain the ability to regulate economic activity to different standards than the EU’s.

This is just an outline of the difficulties in agreeing a future relationship which might supersede the Protocol. The EU will be keen to re-establish the indivisibility of the four freedoms, which it has given up in the Protocol on Ireland/Northern Ireland: after all, the UK is granted access to important parts of the Internal Market for goods, which is then partitioned off from the indivisible Internal Market. However, if the UK remains adamant not to reengage in free movement of persons, it is difficult to see a way for the EU to regain that indivisibility. It has offered the Protocol, after all, and is unlikely to rescind the offer. Thus, the EU will yearn for the UK to develop a solution for avoiding a border on the island of Ireland, technological or otherwise. If this remains impossible, the EU has pledged to offering partial access to its indivisible market. This may be the preferred vision of the current political majorities in the EU institutions, which are all dominated by the centre right. Others in the Commission may hope that the UK will in time veer towards a construction similar to the European Economic Area agreement with some additional commitments to maintaining the EU anti-discrimination Directives and citizenship rights. However, the EU cannot seriously wish for a construct as ungainly as the Protocol on Ireland/Northern Ireland to persist long beyond the end of the transitional period. In this sense, the Protocol may well develop its own institutional dynamic for the island of Ireland and may yet enliven the post-withdrawal negotiations in unexpected ways.

* d.schiek@qub.ac.uk. This is written in a personal capacity and does not constitute a position of Queen’s University Belfast.