The Strange Case of Northern Ireland's Disappearing Rights in the EU-UK Withdrawal Negotiations

Abstract

The draft European Union (EU)-United Kingdom (UK) Withdrawal Agreement did not suddenly coalesce in November 2018. It was the product of a process involving multiple iterations, some of them public, including the Joint Report of December 2017, the EU Commission’s draft text of March 2018, and the UK negotiating position of June 2018. From the outset of this process, securing the Good Friday/Belfast Agreement and an open border in Ireland were accepted by all negotiating parties as priorities for the first phase of Brexit negotiations. What rapidly became evident, however, was that there was no shared understanding of what those goals required. Through these snapshots of the negotiations the Good Friday/Belfast Agreement’s requirements were framed and reframed. As a result, understandings of concepts of non-diminution and non-retrogression shifted across these documents. So too did the categories of rights-holder within Northern Ireland, and the degree to which EU rights will still be able to be relied upon in what, following the completion of the withdrawal process under Article 50 of the Treaty on European Union, is set to become territory external to the EU. This contribution examines how the potential scope of EU rights protections operating in Northern Ireland narrowed during the negotiations towards the draft Withdrawal Agreement and reflects upon whether this narrowing is better explained by the UK’s robust negotiating position, or by the extent to which the EU institutions became concerned with the implications of the potential reach of the special status on offer for Northern Ireland for the coherence of EU law.