When the EU and UK come to negotiate their future relationship, the Government will want to ensure our position is fully understood and our vital interests taken fully into account.
Our relationship with Northern Ireland is a particular concern. There is a strong case to be made that it is unique; and that, as such, it ought to be specially provided for, by way of a protocol or otherwise, in any future agreement between the EU and the UK.
The agreement between the British and Irish governments, part of the Good Friday/Belfast Agreement of 1998, is an international treaty registered at the UN. It has two quite unprecedented features, which we will need to stress, because they may not be fully appreciated by all our EU partners.
(1) It accepts that a majority wished Northern Ireland to remain part of the United Kingdom, but it also provides for the possibility of a future united Ireland: " . . . it is for the people of the island of Ireland . . . on the basis of consent, freely and concurrently given, North and South . . . to bring about a united Ireland, if that is their wish . . ." If there is "concurrent consent" North and South, there will be "a binding obligation on both governments to introduce and support . . . legislation to give effect to that wish."
(2) It gives dual citizenship to the people of Northern Ireland. It recognises “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may choose”; and it confirms “their right to hold both British and Irish citizenship”.
Nothing like this exists in other member states. There is a third point extending beyond Northern Ireland which illustrates the highly unusual character of relationships in these islands. The Ireland Act passed at Westminster in 1949 [section 2 (1)] declares that . . . notwithstanding that the Republic of Ireland is not part of his majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom . . .
Irish unity
Although Irish unity is now possible on certain conditions, in practice Northern Ireland will remain part of the UK for the foreseeable future. So when the UK leaves, our Border will become the EU border. What will happen then? That is for negotiation between the EU and UK. Our concern will be to reduce barriers and ensure people and goods can continue to move freely in both directions across the Border. At best, like
Norway
, the UK, though outside the EU, might negotiate full access to the single market. But even so, there would still be customs posts and “rules of origin” procedures for goods moving between the EU and the UK, as there are between Norway and
Sweden
.
Would it be possible in view of the unique features of the 1998 agreement to negotiate special terms to facilitate easier movement of goods originating in either jurisdiction in Ireland across the Border to the other? What about the movement of persons? This is more complex. A main demand of the “leave” campaign was the right to reduce immigration from other EU countries. So whatever about other aspects, the UK is most unlikely to accept “free movement of persons” – one of the single market’s “four freedoms”.
At present, although it respects the right of EU citizens to enter, the UK insists on its right to check passports at ports of entry. So it declined to join the Schengen system of open borders between participating states, incorporated into the EU treaties by the Amsterdam Treaty in 1998, and now obligatory for new EU member states. Because so much travel from this country goes to, or through, the UK, Ireland joined the UK in a protocol which allows us opt out from Schengen. Article 1 permitted the UK to maintain controls at points of entry – not to block, but simply to “verify” the right of EU citizens to enter; Article 2 allowed Ireland, too, to opt out on the same conditions for so long as we maintain the “Common Travel Area” (CTA). So while all members respect the right of “free movement”, two distinct systems co-exist within the EU – the UK/Ireland CTA which retains passport checks, and Schengen where no passports are required. What will happen now? Two issues will arise. One is a legal point: the protocol allows Ireland an opt-out from Schengen “for as long as” the CTA is maintained. Does this mean that if it ends we will have to join Schengen? The other a practical point – how can we maintain the CTA if Ireland allows free movement to EU citizens and the UK does not? The UK will want to ensure Ireland is not an open back door for EU migrants to cross the Border into the UK.
There is an interesting precedent, now half-forgotten. Between 1940 and 1952 the British government operated passport/identity checks – not between this State and the UK but between the island of Ireland and Great Britain because of the difficulty of controlling the long land Border with the South. David Cameron has spoken of this possibility. If that happens then there could still be easy movement in both directions across the Border.
Irish citizens
Because of the special legal position of the Republic under the 1949 Act, which I cited above, the British government may also treat Irish citizens moving to Britain differently from other EU citizens whose right to entry it wants to curtail.These are matters for detailed negotiation. The EU treaties already include special protocols for areas such as
Greenland
and the
Netherlands Antilles
.
There is a strong case for a special provision to preserve the unique peace settlement in this island, which the EU and the British government helped to achieve. However, I believe any such protocol should also recall the all-important agreement that concurrent consent remains a necessary condition for future Irish unity so as to reassure unionists that we are genuinely concerned about our common interests and not seeking to weaken the 1998 agreement by stealth.
Noel Dorr is a former Irish diplomat. He served as Irish ambassador to the UN and secretary general of the Department of Foreign Affairs, among other roles