Brexit, Northern Ireland and Territorial Differentiation: An Opportunity Not To Be Missed

Katy Hayward and David Phinnemore | 5 September 2017

Peace Bridge, Malavoda, CC-BY-NC-ND-2.0

‘The UK recognises that different potential barriers in relation to the border may necessitate different solutions and that the UK and the EU should consider this in a flexible way rather than one that assumes a uniform approach.’ (UK government Position Paper on Northern Ireland and Ireland, 16 August 2017, Para 44)

‘In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order.’ (European Council, Guidelines Following the United Kingdom’s Notification under Article 50 TEU, 29 April 2017, Para 11)

Up to this point in the Brexit negotiations, Northern Ireland has been given a profile quite disproportionate to its size. Such attention is primarily due to shared concerns over the form of the Irish land border as a future UK-EU frontier, and the fact that this border question has been linked by all sides to even greater challenges: the stability of the peace process, the protection of the 1998 Good Friday (Belfast) Agreement, and the post-Brexit trading relationship between the UK and EU.

Extra pressure comes from the European Council’s requirement that ‘sufficient progress’ is made on addressing these concerns – as well as other ‘withdrawal’ issues – before discussions with the UK government can commence on the future UK-EU relationship.

The UK government’s position paper on Northern Ireland and Ireland released on 16 August reflects the interlinked nature of these concerns, and points to the importance of economic prosperity in sustaining the peace process. In terms of comprehensive solutions to the concerns raised, it offers little. Yet it does welcome the possibility of a non-uniform, flexible approach to the future position of Northern Ireland, and it is in such a differentiated approach that progress lies.

Why ‘flexible’ solutions are needed

Territorial differentiation (i.e. different arrangements for different parts of a state, including in its relationship to the EU) is a potential ‘solution’ to addressing the particular needs of sub-national territorial units. The European Council and European Commission have been quite clear that the unique situation of Northern Ireland means that any arrangements made for this region post-Brexit will not set a precedent for practice elsewhere. This conceivably means bespoke arrangements that diverge from expected norms, even in relation to customs procedures.

The difficulty of disentangling the various relationships across ‘these islands’ means that the UK has quickly come to assume that the ‘flexible and imaginative solutions’ that the EU has called for in relation to the Irish border may also apply to the UK as a whole. However, it is more likely that a workable compromise can only be found in a scenario in which territorial differentiation in the EU is met with similar differentiation within the UK, and is limited to Northern Ireland as per the position of the EU27.

There is nothing that Westminster should be wary of here. After all, the 1998 Agreement between the British and Irish governments was an international treaty that established the unique constitutional position of Northern Ireland vis-à-vis both states, and that founded unique cross-border institutions in recognition of this.

Polarised politicking about Northern Ireland’s post-Brexit future

Northern Ireland’s distinctive needs in the Brexit process were made clear in the letter from the Office of the First Minister and deputy First Minister (OFMdFM) to Prime Minister Theresa May in August 2016. However, as UK government policy has moved rapidly towards a ‘hard Brexit’ – outside the customs union and the single market – so party positions within Northern Ireland have become increasingly polarised.

The nationalist SDLP and Sinn Féin are campaigning for Northern Ireland to be granted ‘special status within the EU’ – something ruled out by the Secretary of State for Northern Ireland, voted down by MLAs in Stormont and MPs in the House of Commons, and made all but impossible by the UK’s European Union (Withdrawal) Bill. On the other hand, calculating that it is best to be tethered as closely as possible to the Westminster mast as the UK enters uncharted seas, unionist politicians have aligned themselves more closely to a ‘hard Brexit’ position (unequivocally so in the case of the DUP, since its deal with May to support her minority government).

That the positions of the Northern Ireland’s political parties on Brexit have become increasingly hardened along traditional unionist/nationalist lines certainly makes the political context of compromise-finding more difficult. In some ways, UK-EU differences in the Brexit negotiations can be read as a grand projection of internecine conflict within Northern Ireland; the fact that Ireland is on the opposite side of the table to the UK makes this analogy even more pertinent. We know from devastating experience that binary, nation-centric approaches only cause harm in Northern Ireland. Instead, the emphasis has to be upon multilevel, differential arrangements that reflect the complexity of relations across these islands of Britain and Ireland.

Various options for territorial differentiation

The EU has long been characterised not just by multi-speed integration (e.g. Eurozone, Schengen Area) but also by internal differentiation (i.e. particular arrangements for different territories within a member state). Notwithstanding some imaginative scenarios by which this might be made possible with regard to Brexit (for example, Brendan O’Leary’s suggestion that the UK remains a member state and it is left to England and Wales to withdraw), such an option is far from the table – and unlikely to find acceptance from the EU27 anyway (as seen in the European Parliament vote that defeated the GUE-NGL motion on special status).

The EU also has a range of different forms of cooperation and integration with non-member states (external differentiation). Such differentiation – if applied imaginatively – is the most direct way of meeting the many particular challenges that Brexit poses for Northern Ireland. For example, Northern Ireland could retain membership of the single market through EEA membership, an idea that has been explored in some depth. Northern Ireland could in theory also remain part of the EU customs union – a unique arrangement as a region of a non-member state, but not inconceivable given its specific constitutional status and economic needs. This, it is expected, could lead to a customs border of some sort within the UK and is thus not currently on the table.

Alternatively, even fully outside the EU, Northern Ireland could enjoy a version of tailored integration and cooperation arrangements with it. For example, Svalbard enjoys a special status within the context of Norway’s participation in the European Economic Area (EEA). The EU has also made specific concessions to the Russian exclave of Kaliningrad where the application of the Local Border Traffic Zone has (when functioning) several aspects of relevance to Ireland’s border region.

There are also models of territorial differentiation within and at the borders of the EU (e.g. the position of Turkish northern Cyprus today, whose goods can be designated as of EU origin despite being outside the EU, and (during the Cold War) East Germany, treated as part of the EU’s customs territory). There is also is the status of European microstates (such as Monaco and Andorra) and special arrangements for particular regions territorially separate from their governing state, including the Åland islands (Finland), the Faroe Islands (Denmark), and Ceuta and Melilla (Spain). All these cases show that the EU flexibility can be found in relation to economic as well as political practices, as long as they relate to the particular needs of a specific territorial area.

The imperative for territorial differentiation

From the UK point of view, it must be recognised that the 1998 Good Friday (Belfast) Agreement itself created conditions that enable multilevel governance, sectoral-specific and territorially-differentiated arrangements within the UK – not merely because of any ideological tit-for-tat but because of real socio-economic gain. The UK government’s recognition (in the Northern Ireland and Ireland position paper) of the importance of the all-island energy market and the island as an epidemiological unit for animal health is testament to the fact that some issues are best dealt with on territorial, pragmatic grounds rather than state, jurisdictional ones.

A post-Brexit future that involves territorially differentiated arrangements for Northern Ireland within the UK and vis-à-vis the EU might go some way towards alleviating some of the stark economic risks – and, for some, dire political fears – posed by Brexit to an already-fragile region. That all parties around the table explicitly recognise the need for ‘flexible and imaginative solutions’ provides an unprecedented opportunity that must not be allowed to pass.

Katy HaywardKaty Hayward | Twitter

Queen’s University Belfast

Dr Katy Hayward is Reader in Sociology at Queen’s University Belfast. Her research interests include political sociology, European integration, cross-border conflict and cooperation, peace and conflict processes, and Brexit and Ireland.

Kirsty HughesDavid Phinnemore | Twitter

Queen’s University Belfast

Prof David Phinnemore is Professor of European Politics at Queen’s University Belfast and Visiting Professor at the College of Europe (Bruges). His research interests include EU institutional and constitutional development and EU external relations.