Can we breathe a sigh of relief?
Keith Best, a former Member of Parliament and now Secretary of the national European Movement, writes about Friday's agreement at the end of Phase 1 of the negotiations.
As Walpole said (albeit in a very different context) “now they are ringing their bells but soon they will be wringing their hands.” An enormous amount of effort and anxious telephone dialogue was devoted to the description to be given to the status of Northern Ireland. The battle lines had already been drawn with a surprising degree of consensus as to what this might be. The DUP were clear that there should be no hard border between the Irish Republic and Northern Ireland which meant a trading arrangement without tariffs. Moreover, it was stressed that much of the Good Friday Agreement was underpinned by both the Republic and the UK being members of the customs union. The pontifications from No.10 and other Cabinet Ministers that there could be no “one country, two systems” solution predicated that whatever obtained in Northern Ireland should also apply to the rest of the UK (not least so as to head off any demand for NI-type separate treatment for Scotland and Wales). So both the wording and, essentially, the meaning of “regulatory alignment” between the EU and the UK is of critical importance.
What the DUP seem not to have noticed so far, however, is that although this confluence may obtain at the beginning there is then nothing to prevent the UK, after the so-called two-year implementation period from diverging from this alignment for other parts of the UK or, indeed, for Northern Ireland itself in the future. As Britain’s Parliament is supreme it can change the law at any time once free from the constraints of a formal relationship with the EU. Even if such alignment were expressed to be in perpetuity in legislation there can be no entrenchment binding subsequent Parliaments. Any subsequent outright or coalition Corbyn Government, not needing the Parliamentary support of the DUP, might well be persuaded to change the rules.
So what does the recent agreement actually state? “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. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. 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 all-island economy and the protection of the 1998 Agreement.”
These are noble sentiments but, and I shall be amazed if the DUP have not spotted this already, who will determine whether or not the “solutions” meet these criteria in the event of a dispute? Presumably, the ECJ? What will be the penalties if the agreement is not honoured? There is no provision for that other than the wrangling that would be associated with a dispute as to whether or not the agreement was being honoured. The obligation is clear: that if there is no agreement to any “solutions” the UK will maintain the then current rules of the Internal Market and Customs Union. As the Prime Minister and others have maintained consistently, such a provision would have to apply to the whole UK. So, we are left with being where we are now! What goes around comes around!