On 4 December, the UK and the EU failed to reach an agreement to move on to the next stage of the Brexit talks, with reports suggesting the Democratic Unionist Party had refused to accept proposed concessions on the Irish border. Anand Menon explains why there are strong reasons for shared regulatory frameworks on both sides of the Irish border to continue following Brexit, and why it remains exceptionally challenging to resolve the issue.

Ireland is hogging the Brexit headlines. While some reports on Monday suggested that the UK and EU were close to a solution on the vexed question of the Irish border, still others indicated that the Democratic Unionist Party, on which Theresa May depends for her slim Commons majority, would not accept any differentiation between Northern Ireland and the rest of the United Kingdom.

And yet such differentiation has to be granted if the UK government intends to square the circle it has drawn. Somehow, the UK must leave the single market and customs union while providing the Republic with the political commitment it has demanded that the intra-Irish border must remain invisible.

Much has been written and said about the tangled politics of the Irish border. Yet a couple of issues tend to get lost in the hubbub. First, while obviously the government in Dublin is hugely concerned about what happens to the intra-Ireland border, it is also arguably the most anxious among the EU27 to move on to phase two of the Brexit process and begin negotiating a close and mutually beneficial trade relationship. And for good reason. A recent report by the Irish Central Statistics Office underlines the close trading links that bind the two countries.

Ireland is simultaneously demanding that its requirements for the withdrawal phase be met while being the most anxious to proceed. And of course this is partly because of fears related to a violent sectarian past. But a focus on this has shifted attention from the variety of more mundane, yet equally important factors militating in favour of continued regulatory alignment between the north and south of the island. Simply put, divergence would impact on people’s lives in a variety of different ways.

Throughout last summer, British, Irish and EU officials undertook a detailed “mapping” exercise intended to examine all the areas of north-south co-operation which would be affected by Brexit. They identified more than 140 such areas. The exercise has served to underline the serious challenges posed by any regulatory divergence between the Republic and the North.

Healthcare is one area that stands to be profoundly affected. Joint membership of the single market ensures single standards for medical devices, mutual recognition of medical qualifications, mutual acceptance of cross border ambulance activity and so on. Patients on the island of Ireland can fill prescriptions written by doctors on one side of the border in pharmacies on the other side of the border.

But for this to happen, doctors and pharmacists need to be working to the same standards and need to know medicines are approved in both the North and South. The EU provides the legislative framework to make this possible. Continued regulatory harmonisation is the only way to ensure it continues to be so.

Likewise, when it comes to agriculture, above and beyond the questions about trade and tariffs that dominate public debate, the single market and common rules are crucial. So, for instanceauthorities on both sides of the border co-operate closely when it comes to managing the risks associated with animal health. For example, they meet regularly to work on contingency planning in case of an outbreak.

This co-operation happens through the North South Ministerial Council working groups and is based on provisions and conditions laid down in EU legislation. Removing this framework from Northern Ireland would not only impose a border, and make co-operation more complex, but would increase the risk of an outbreak of disease.

Transport, too, would be massively affected by regulatory divergence. A variety of bus services cross the border on a regular basis. Services scheduled by Bus Éireann, Translink and other private operators, services going from Donegal to Scotland which collect passengers in Northern Ireland, local operators bringing children to school, tour buses and privately hired buses all benefit from the common regulations that exist. Bus services that cross the border do so easily because the services are regulated at an EU level. EU legislation ensures that bus services comply with the same vehicle safety standards, driver hour regulations and other safety measures.

It also enables authorities on both sides of the border to harmonise co-operation in enforcing safety measures. Removing this framework would hinder the ability of services to operate across the border, adding additional complexity and burdens, undermining confidence in the safety of services, and reducing the ability of authorities to ensure that all adhere to high safety standards. Ultimately, of course, it would be ordinary passengers who would suffer.

And finally, consider energy. Consumers on the island of Ireland benefit from the existence of a wholesale single electricity market, with all of the economic and social benefits that come with that. The single electricity market is an integrated wholesale electricity supply system built entirely upon binding EU legislation and policies. If it unravels because Northern Ireland no longer applies EU legislation, the electricity supply market on the island will fracture. If nothing else, the loss of efficiencies of scale implies that electricity will become more expensive for consumers.

So the Irish border question is not simply about sectarianism. Nor, indeed, is it all about tariffs. It is also about rules, and the impact those rules have on ordinary people on both sides of the border. These citizens live in a world in which the existence of the same regulatory framework shapes numerous aspects of their daily lives.

Obviously, ensuring an absence of regulatory divergence will be challenging. The political problems are all too familiar, but they are not the only ones. There will also be issues around Northern Ireland’s place in the UK’s own internal market (and whether, for instance, the terms of new UK trade deals dealing with, say, chlorinated chicken will apply to the province).

Whatever path is chosen will be problematic. But don’t expect Dublin to stop demanding some certainty about the lives of its citizens, however much it also wants to move on to talks about trade.

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Note: This piece originally appeared in the New Statesman and at UK in a Changing Europe. The article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: Andrein (CC BY-SA 3.0)

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About the author

Anand MenonKing’s College London / UK in a Changing Europe
Anand Menon is Director at The UK in a Changing Europe and Professor of European Politics and Foreign Affairs at King’s College London.

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