234.The implications of Brexit for Ireland, North and South, are profound. We have therefore considered whether there should be some acknowledgement of the special status of Northern Ireland in the forthcoming Brexit negotiations, and whether there is scope for a bilateral UK-Irish agreement as an element within the final withdrawal agreement.
235.Colum Eastwood argued that there needed to be “a special understanding or recognition of Northern Ireland’s place”. David Ford observed that in the 1998 referendum on the Belfast/Good Friday Agreement, a majority of people had supported the principle that Northern Ireland should have a special status within the UK.
236.As things stand, Northern Ireland will in any case be in a unique situation post-Brexit with regard to the EU: as John Bruton noted, it will be the only territory outside the EU “where every person living there is legally entitled to be a citizen of the European Union, simply by applying for an Irish passport”. He thought that there would be recognition that Northern Ireland had “some special standing”.
237.Dr Etain Tannam suggested that, building on past precedents of protocols and elements added to agreements, there could be formal recognition of Northern Ireland’s special status. Professor Phinnemore argued that the EU regarded itself as a problem-solving organisation, and would thus be open to a bespoke arrangement. Professor O’Brennan, on the other hand, was concerned by the potential objections of other Member States, and thought it would be difficult to define any ‘special status’ in practice.
238.Dr Soares did not like the term ‘special status’, and suggested that, rather than the UK seeking to secure such status for Northern Ireland as part of the withdrawal negotiations, it would be more productive for the Republic of Ireland to negotiate with the other Member States recognition of its particular circumstances, both because of its geography and also as a co-guarantor of the Belfast/Good Friday Agreement.
239.More generally, any negotiation of a ‘special status’ will need to take account of acute sensitivities, particularly in the Unionist community. While we were taking evidence in Belfast, a debate was held in the Northern Ireland Assembly, on a motion proposed by SDLP leader Colum Eastwood, endorsing “the proposal of the Irish Government and others that there should be legal recognition of the unique status of Northern Ireland and the circumstances on the island as part of the arrangements to leave the European Union.” The motion was defeated by a single vote, following opposition from the Unionist parties.
240.The Secretary of State for Northern Ireland, without committing the Government to a formal special status for Northern Ireland, told us:
“We are seeking to achieve a UK-wide negotiation and therefore reflective of the issues and circumstances arising all around the United Kingdom. Northern Ireland obviously has some very specific issues … It is incumbent on us to underline to the EU in the negotiations the special circumstances being set out by the Taoiseach and the Irish Foreign Minister in a number of their existing meetings.”
241.Several of our witnesses reflected on whether the EU should recognise, not only the unique situation of Northern Ireland, but also the circumstances on the island of Ireland as a whole. Linked to this was the question of whether, given the unique nature of the UK-Irish relationship, the UK and Irish governments should seek some form of bilateral arrangement, in addition to any agreement at EU level.
242.As we have already noted, the Irish Minister for Foreign Affairs, Charlie Flanagan TD, was reported as stating that the Irish Government would seek “legal recognition of the unique status of the North and the circumstances on the island”. Fianna Fáil argued that “the final arrangement must give special acknowledgement to Ireland’s distinct position and the unique and special relationship between our two countries”.
243.Bertie Ahern agreed that the EU needed to acknowledge that the implications of Brexit for Ireland were greater than for any other Member State. He also stressed that the discussion of these implications could not take place solely at EU level, because of the status of the Good Friday Agreement as an international agreement. This raises the possibility of parallel bilateral discussions. Mr Ahern, while acknowledging that bilateral discussions might not be able to address trade matters, the Common Agricultural Policy, or the EU Budget, was concerned that “if we just wait for the whole issue to be dealt with at the European level, some things might well be pushed aside in Brussels”. David Ford agreed that there needed to be a bilateral UK-Irish deal, though he was not sure how it could be achieved in practice.
244.John Bruton pointed out that the EU treaties already contained protocols recognising the situation of particular territories, such as the Åland Islands. He therefore thought that there could be special recognition of the circumstances on the island of Ireland, which could be appended to the withdrawal agreement. While any bilateral discussion would need to bear in mind Ireland’s EU obligations, for instance on trade, on other issues he believed that a bilateral arrangement was possible.
245.Some witnesses suggested specific elements that might be included in a bilateral deal. The Consultative Committee of Accountancy Bodies—Ireland stated that a bilateral arrangement should allow for the free movement of workers between the two countries, and a standalone UK-Irish customs and trade agreement. Professor Ryan suggested that there could be a bilateral arrangement not to operate customs controls at the Irish land border.
246.These suggestions clearly demonstrate that any bilateral agreement between the UK and Ireland is likely to impinge upon areas of EU competence, and will thus depend upon on the attitude of the other 26 Member States. Ruth Taillon warned that, although the UK could give certain guarantees to Irish and other EU citizens in the UK, the Irish Government would not have the same flexibility. Patricia King agreed that “the interests of the other 26 … will not be the same as Ireland’s … The issue is how Ireland will be placed in the order of importance in these negotiations.” Pamela Arthurs referred to conversations in Brussels, “where it was made fairly clear to us that it is not within the gift of Ireland or the UK to decide what the border will look like—the other 26 member states will decide”.
247.The Consultative Committee of Accountancy Bodies—Ireland accepted that its proposed bilateral arrangement would require the consent of EU partners, in accordance with Article 3(1)(e) 207 TFEU, which states that agreements between an EU Member State and a “third country” (which is what the UK will become post-Brexit) are not permissible in the field of tariffs and customs. Nevertheless, they argued that it would be “both an unfair and disproportionate act by Ireland’s EU counterparts to stop such an agreement being made between the UK and Ireland or vetoing such a deal being part of any UK withdrawal agreement”.
248.Edgar Morgenroth, in contrast, could not see a path to a bilateral deal, given that responsibility for negotiation on trade and migration issues with third countries lay with the EU. David Ford feared that “the Irish voice in Brussels is relatively small. Even though they have the most significant concerns, they feel they would not be heard alongside the massive continental countries.” Professor McCall predicted that other Member States would be distracted by their own concerns and priorities.
249.John Bruton argued that the lack of understanding of the complexity of UK-Irish relations among EU colleagues reflected the lack of prominence given to these issues during the referendum campaign. Mike Nesbitt accepted that EU partners could not reasonably be expected to understand the complexity of the social, economic and political relationship between the UK and the Republic of Ireland. Nevertheless, he noted that “Europe has invested a huge amount of money, time, effort and political capital in peace in Northern Ireland. That is something we should use to our advantage.”
250.Professor O’Brennan argued that any damage to the peace process would also damage the EU. Dr Etain Tannam agreed that stability in Northern Ireland was in the EU’s interest, given that the pursuit of peace was part of the EU’s original rationale. Professor Phinnemore thought that the EU would be receptive to concerns because of its recognition of the significant impact on Ireland as a continuing Member State.
251.Ambassador Mulhall was confident that EU partners understood the “particular set of circumstances and challenges” surrounding UK-Irish relations:
“In my experience of dealing with our European partners, they see the Northern Ireland peace process as something that Europe can be proud of, having brought an end to an age-old conflict, with the European Union having supported that process significantly over the years through encouragement and financial support. European countries are generally quite aware of the importance of continuing to develop the peace and political processes in Northern Ireland. They are therefore receptive and sympathetic to our particular concerns.”
252.We were told that a particular obligation fell on the Irish Government to make the case for the unique nature of UK-Irish relations within the framework of the Brexit negotiations. John McGrane said: “Ireland has to be brilliant at managing two distinct sets of relationships. We have an undiminished commitment to membership of the EU, but we also have a very special relationship with our friends and connections in the UK.” Colum Eastwood and Shane Campbell both stressed that the onus was on the Irish Government to represent to EU colleagues the views and interests of the people of Northern Ireland.
253.Robin Walker MP told us that the Irish Minister for Foreign Affairs and Trade, Charlie Flanagan TD, saw his role as impressing on the other Member States the importance of island of Ireland issues and the British-Irish relationship. Dr Gillespie agreed that the Irish Government had placed a strong emphasis on the uniqueness of the Northern Ireland settlement, the importance of the peace process (in which the EU had played a key role) and the asymmetric impact that Brexit would have on Ireland.
254.Ambassador Mulhall confirmed in September that Mr Flanagan had at that stage spoken to all of his EU Foreign Minister counterparts to set out Ireland’s national priorities and interests. The Taoiseach had met Prime Minister May, Chancellor Merkel, President Hollande and other members of the European Council, and European Council President Donald Tusk had visited Dublin.
255.Ambassador Mulhall anticipated that EU partners would look to Ireland:
“To explain or help them to understand some of the issues that may arise and may need to be clarified. Likewise, I hope that the British Government and the British system will listen to us when we try to explain to your people that you may be looking for certain things that may not be feasible in our eyes, as a country that will be remaining in the European Union. I think we can play a distinctive role in our dialogue with our partners in the 27, where we belong and where our future lies, but also in our special relationship with the UK, which I hope will be able to help the negotiations to move forward in the direction … that would keep Britain as close as possible to the European Union.”
256.As the instigators of the UK’s withdrawal from the EU, the UK Government has a political and moral responsibility to seek solutions to the challenges that this report has identified. As John Bruton told us:
“The loss to Ireland as a result of Britain leaving the European Union will be even greater than the loss to Britain of it leaving the European Union, but unlike Britain we had no say in the decision. Clearly that creates some negative feelings in Ireland.”
257.The Secretary of State for Northern Ireland told us that the UK and Irish Governments were liaising closely, to identify areas of common interest, where there might be a wish to present a shared position moving forward. Robin Walker MP agreed that the two Governments would seek to work together in a complementary way.
259.We acknowledge that the negotiations under Article 50, on UK withdrawal and on the framework for the future relationship between the UK and the EU, will inevitably focus on issues affecting all 28 states concerned. But the unique position of Ireland, North and South, must not be overlooked.
260.We therefore call on all parties to the negotiations, the EU institutions as well as the Member States, to give official recognition to the special, unique nature of UK-Irish relations in their entirety, including the position of Northern Ireland, and the North-South and East-West structure and institutions established under the Belfast/Good Friday Agreement.
261.We do not underestimate the difficulties, legal and institutional, of translating such recognition into a final agreement. Yet the unique nature of UK-Irish relations requires a unique solution. The preferred approach, we believe, would be for the EU institutions and Member States to invite the UK and Irish Governments to negotiate a draft bilateral agreement, involving and incorporating the views and interests of the Northern Ireland Executive and keeping the EU parties fully informed as this negotiation proceeds. Such an agreement would then need to be agreed by EU partners, as a strand of the final Brexit arrangements.
263.The EU has a strong interest in supporting this approach. It has made a significant contribution to the peace process, both politically and financially. It is therefore not in the interests of the EU, any more than of the UK and Ireland, for political stability in Northern Ireland, facilitated by the Belfast/Good Friday Agreement and subsequent agreements, to be put at risk by Brexit. The EU will also be particularly cognisant of the asymmetric burden that Brexit would place on Ireland, which has made clear that its future lies in the EU.
264.A particular burden has fallen on the Irish Government to bring these issues to the attention of EU colleagues, and we therefore welcome the efforts the Irish Government has made to ensure that EU colleagues are informed about the unique circumstances in the island of Ireland, and the particular challenges of Brexit.
265.But the primary responsibility for drawing attention to and finding solutions to the many challenges we have identified lies with the UK Government. Ireland now faces challenges that are not of its own making. Closer UK-Irish relations and stability in Northern Ireland are too important to put at risk as collateral damage of the Brexit decision. In an era of blossoming bilateral relationships, after long years of mistrust and misunderstanding, we urge the UK Government to be sensitive to the implications of its actions for the people and communities of Ireland, North and South. Anything less would diminish the efforts of all those who have worked so hard for peace and good relations across these islands.
318 Pat Leahy, ‘Government to seek special status for North after Brexit’, The Irish Times (4 October 2016): [accessed 30 November 2016]
319 Written evidence from Fianna Fáil ()
322 See Protocol No. 2 to the Act of Accession of the Republic of Finland, 1994. Decision of the Council of the European Union of 1 January 1995 adjusting the instruments concerning the accession of new Member States to the European Union ().
325 Written evidence from the Consultative Committee of Accountancy Bodies—Ireland ()
326 Written evidence from Professor Bernard Ryan ()
327 (Professor John O’Brennan)
331 Written evidence from the Consultative Committee of Accountancy Bodies—Ireland (). The constraints of the Common Commercial Policy in preventing Member States from negotiating their own separate trade agreements, and WTO rules governing preferential treatment between countries, are explored in full in the forthcoming report by our EU External Affairs and Internal Market Sub-Committee on Brexit: the options for trade.