Breaking the impasse (part 3) - Respect the Good Friday Agreement

There's a lot of tosh spoken about the Good Friday Agreement (GFA), including by our own prime minister Theresa May. There is no reference to an all-island economy. There is no commitment to avoid a customs border. There is no mention of customs at all. The only commitment on borders is the removal of military installations (completed some years ago).

Principle of Consent

However, the GFA does establish the "principle of consent" for the people of Northern Ireland (NI) :

"acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;"

Some (nationalists) have argued that NI leaving the Single Market & Customs Union is a change in the status quo which breaches the principle of consent. But the actual wording in the GFA (see above) is clear that the principle of consent applies to "Northern Ireland’s status as part of the United Kingdom", not to NI's status with respect to the EU or the Republic of Ireland (RoI).

The EU's current NI-only backstop proposes NI remains part of the EU's Single Market and Customs Union (for goods only) subject to ECJ jurisdiction, creating a customs, regulatory and jurisdictional border with Great Britain (GB). This clearly separates NI from GB in order to facilitate close ties with RoI. While this is not a full constitutional sundering of NI from GB, it is an obvious weakening of NI's place in the United Kingdom and its internal market, which ought to require the consent of an NI majority.

No Deal, No Hard Border

So the GFA does not prohibit a "hard" NI/RoI customs border, nor would the GFA principle of consent (of NI majority) apply to such a border. Nonetheless, all parties see the sense in avoiding a hard NI/RoI customs border.

The UK Government has steadfastly insisted it will not install infrastructure to create a hard border under any circumstances. It has been recently reported that "a working group of senior UK government officials is being convened to devise ways to keep the Irish border free of customs checks and police even if there’s no withdrawal agreement". EU President Juncker & Irish Taoiseach Leo Varadkar have both confirmed that in a "No Deal" scenario, there would be "no physical infrastructure and customs checks on the Border". So even in a No Deal scenario, no-one is going to erect a hard border.

So how would "No Deal, No Hard Border" work ? Quite simply, both sides will collect tariffs/duties and apply customs controls away from the border:

• Importers will be audited and required to submit regular accounts of trade (as they are today for VAT-based INTRASTAT returns used to collect intra-EU trade statistics)
• Market surveillance will check goods placed on the market for regulatory compliance. Even today there is regulatory divergence between North and South where UK specifies more stringent safety tests on top of EU's harmonised CE standards (e.g. fireworks, sofas etc), meaning some products that are legal in the South may be illegal to market in the North.
• Intelligence-led customs/police interventions will target contraband and counterfeits (as per today) and sources of non-compliant goods.

The GFA emphasises and promotes cross-border co-operation between the two jurisdictions (emphasising that there is a North-South jurisdictional border). Specifically, the GFA establishes a North-South ministerial council with designated areas of co-operation. Building on existing strong cross-border co-operation will be crucial to achieving "No Hard Border":

• Sanitary & Phyto-Sanitary (SPS), i.e .animal and plant health, is already designated as an area of co-operation under the North-South ministerial council and could provide the basis for an all-Ireland SPS inspection regime. 
• Co-operation on market surveillance (spot checks on goods on the market for regulatory compliance) is currently covered via membership of the Single Market, but post-Brexit should be covered under GFA cross-border co-operation.
• Joint police/customs interventions are undertaken today against smuggling (contraband, counterfeits, avoiding excise duty etc.). 

GFA as basis for NI customs border agreement

If there is to be an agreement on the NI customs border, it seems logical to establish a North-South customs border management body, building on existing cross-border co-operation. This body would be democratically accountable to the two political jurisdictions (North and South), using existing political infrastructures, i.e. the North-South Ministerial Council and British-Irish Council established under the GFA.

Incorporating an NI/RoI customs border agreement into the GFA would also bring other benefits :

• WTO will be able to recognise the politically sensitive NI/RoI border as an exception to WTO MFN non-discrimination (which might otherwise require the EU and UK to keep all their borders as open as NI/RoI "No Hard Border"). 
• Most importantly, the principle of NI consent becomes central. NI could voluntarily choose to align with RoI in the interests of "No Hard Border", or NI could choose to decline such alignment, if the result is an NI-GB hard border that significantly impacts trade.

The UK should support NI in whatever arrangements it chooses to make with RoI, for example if NI consents to "technical checks" on goods crossing the Irish Sea in order to facilitate "No Hard  Border" with RoI. NI goods could still enter GB without checks on the basis that UK Government trusts its own (NI) inspectors (both market surveillance and SPS). In fact, as a "cherry-on-top", GB could offer to accept RoI goods without checks, by virtue of UK (NI) inspectors involvement in North-South border management bodies. Such an offer would be on the express understanding that it does not extend to EU-26 goods.

The EU should also regard the NI border as an exception, delegating control fully to RoI with freedom to make arrangements via GFA institutions/bodies to achieve "No Hard Border". Provided such arrangements prove sufficiently robust, the EU should leave customs border arrangements to the players on the ground rather than insist on a rigid application of EU customs law. As a safeguard, the EU could impose "technical checks" on goods crossing the Celtic Sea (i.e. between RoI and France/EU-26), if any concerns arise and persist over integrity Single Market / Customs Union integrity.

The EU should also allow RoI to recognise NI as "equivalent" with RoI via North-South border management bodies, which would allow NI manufacturers and economic operators (in aligned sectors) to be recognised as operating within the single market. The Swiss are recognised as equivalent in much the same way via EU-Swiss joint committee - without requiring direct application of EU law or ECJ jurisdiction. Such an offer would be on the express understanding that such equivalence does not extend to GB manufacturers and economic operators.

The major hurdle to this approach is the current suspension of Stormont and power sharing arrangements. The opportunity to shape the debate around the future border arrangements should be incentive to resume Stormont's government. At the very least, Stormont should be convened for the specific purpose of addressing the customs border and/or a North-South border management body should be instituted. Any parties unwilling to participate would sacrifice the right to a voice.

Conclusion

Despite the tosh spoken about the GFA, it is the EU's NI-only backstop proposal which threatens the status of NI within the United Kingdom and its internal market and so threatens the GFA settlement. No self-respecting UK Government should even contemplate signing the Withdrawal Agreement while it mandates economic and judicial borders within the UK.

In fact, the GFA does not mandate "No Hard Border" for NI/RoI. However, via the GFA, NI consent can be expressed and cross-border co-operation enhanced to manage a "soft" NI/RoI border. The withdrawal agreement should be revised to put the GFA and NI consent front and central.

In short, instead of weaponising the GFA and the NI customs border issue, it's high time politicians respected the GFA and built an NI customs border solution based on it.