Conclusions and recommendations
Introduction
1.The UK, Ireland and the EU unanimously agree that there can be no return to a hard border on the island of Ireland and that the many forms of cross-border cooperation which have developed since the Good Friday/Belfast Agreement must be protected. Irrespective of the profound consensus around this view, disagreement over how to deliver this shared goal has brought the UK’s exit negotiations to a standstill and increased the likelihood of the UK leaving without a deal on 29 March 2019 and the possibility of not leaving at all. (Paragraph 6)
2.The backstop arrangements succeed in obviating the need for border infrastructure or any related checks or controls on goods travelling across the land border between Ireland and Northern Ireland. The arrangements achieve this by requiring Northern Ireland to maintain a high degree of alignment with EU rules and, as a consequence, raise new barriers to the flow of goods from Great Britain, which is not required to maintain the same level of EU regulatory alignment, to Northern Ireland. Under this model, goods travelling from Great Britain to Northern Ireland would undergo a new declarations process and, in some cases, regulatory compliance checks. This solution sacrifices the integrity of the UK internal market in order to facilitate frictionless cross-border trade between Northern Ireland and Ireland. It is a solution which four of Northern Ireland’s pro-Remain political parties describe as a vital insurance policy but has proved unacceptable to the House of Commons in its current form. (Paragraph 18)
Solutions
3.We recommend that Paragraph 23 of the Political Declaration be amended and the preamble to the Protocol be clarified in a judiciable form to make absolutely clear that the backstop arrangements are designed to prevent a hard border only and should not be taken as the baseline starting position for negotiations on the future UK-EU relationship. These changes, which are compatible with the EU’s stated intent, would build confidence for the UK that the EU is genuinely open to a future relationship that will enable it to have an independent trade policy. (Paragraph 32)
4.The UK’s decision to leave the EU necessitates change. It is understandable that in the context of a post conflict society change to the status quo is met with caution. It is incumbent on all parties to work together to ensure that these changes do not undermine the normalcy of cross-border relationships on the island of Ireland. (Paragraph 39)
5.Establishing an agreed understanding of the terms used to describe the border and North/South cooperation is crucial. These criteria will delimit the possibilities of the future UK-EU relationship. Some witnesses interpret the avoidance of a hard border with maintaining, in every detail, the current regulatory and customs environment in Northern Ireland. Under this interpretation, any change, from a switch in mobile roaming charges to increased veterinary inspections, may constitute an unacceptable hardening of the border. (Paragraph 40)
6.The lack of clarity over key terms in the Withdrawal Agreement, which sets out the conditions any future UK-EU agreement must meet in order to succeed the backstop, is not conducive to trust or transparency. It heightens the scope for misunderstanding. The Withdrawal Agreement must not repeat the mistakes of the Joint Report in allowing differing interpretations of key commitments to persist unresolved into the next stage of negotiations. We recommend the EU and UK clarify, in legally recognisable terms, before the 12 March 2019, their joint expectations regarding these key phrases to ensure that both sides share the same understanding of what a future relationship, that can supersede the backstop, could look like. (Paragraph 41)
7.The impasse over future arrangements for Northern Ireland in the Withdrawal Agreement is symptomatic of a fundamental lack of trust between the UK and EU in the negotiations. The UK has committed that any future relationship will avoid a hard border on the island of Ireland and respect the integrity of the EU’s single market. The EU has committed to start work immediately on finding specific solutions for avoiding a hard border. However, mistrust has led both the UK and EU to focus on securing legal guarantees to protect their own positions as they see them, rather than negotiating a future agreement which can deliver on the stated aim of avoiding a return to the UK-Ireland border of the past. (Paragraph 54)
8.All the proposals we have heard for a maximum facilitation approach would require the EU, UK and Ireland to share highly integrated digital systems such as TRACES, ECMS, VIES and the Common Transit Convention, put in place special solutions for agricultural goods and to collaborate in the implementation of highly sophisticated risk-based enforcement measures away from the border. This is not a simple, quick-fix solution and implementing it in Northern Ireland would represent a world-first. The balance of the evidence suggests that, far from being a ‘unicorn’, such a solution is possible and that it could be designed, trialled and piloted within the 21-month implementation period, which would be a substantial achievement. The key obstacle is the lack of trust and goodwill between negotiating parties rather than the absence of systems and technologies. It is not a promising start for the next phase, the determination of the future trading relationship. (Paragraph 55)
Published: 9 March 2019