Northern Ireland and Brexit: Avoiding a Hard Border EEA or a Special Protocol?

Abstract

One of the three preliminary issues for discussion in the Brexit negotiations is Northern Ireland, in particular, the need to avoid damaging the peace process initiated by the Belfast (Good Friday) Agreement. A consequence of that process is the absence of a hard border between Northern Ireland and Ireland which on Brexit will become an external European Union border. Having detailed the nature of Northern Ireland’s trade, this article examines the United Kingdom Government’s Paper on Northern Ireland which suggests that a new customs partnership between the United Kingdom and the European Union, including an exception for the trade of micro, small and medium-sized enterprises, could obviate the need for a return to a hard border. Having examined the Government Paper, this article examines two other possible arrangements, the first of which is a proposal that Northern Ireland accede to the European Economic Area Agreement. This option is then contrasted with a proposal that a Protocol on Trade on the Island of Ireland be concluded. Modelled on Protocol 3 of the original Treaty of Rome which governed trade within Germany, the Protocol would confirm that like the rest of the United Kingdom, Northern Ireland will leave the EU but would allow existing levels of trade and regulatory cooperation between Northern Ireland and Ireland to continue. The Protocol solution could be extended beyond trade so as to afford the EU an opportunity to consolidate its contribution to the peace process in Northern Ireland.