UK Government’s position paper on the subject of the Irish border

Posted in WTO and international trade

The UK has published its latest position paper relating to its Brexit negotiations with the EU, this time on the issue of Northern Ireland and Ireland.

The UK is Ireland’s biggest trading partner and concerns have been raised that such trade could be adversely affected, particularly if Brexit were to result in any restrictions on free movement of goods or persons between Northern Ireland and Ireland.

The position paper sets out various areas of focus for the Brexit negotiations, central to which are:

  • maintaining the Common Travel Area (between Northern Ireland and Ireland) and associated rights; and
  • avoiding a hard border for the movement of goods.

The paper also outlines the importance upholding the Good Friday Agreement and maintaining co-operation between Northern Ireland and Ireland and the UK and Ireland (so-called North-South East-West co-operation), including in relation to energy.

The principal objective of avoiding any physical border between Northern Ireland and the Republic of Ireland post-Brexit is not new. The policy accords with the Government’s earlier White Paper on “The United Kingdom’s exit from an new partnership with the European Union”, which stressed the UK’s aim to have as seamless and frictionless a border as possible between Northern Ireland and Ireland to protect reciprocal treatment of each other’s nationals once the UK has left the EU. 

While the Government’s overall objective and sentiment behind the proposal are likely to be broadly supported by the EU, the legal and practical mechanisms for how to achieve it are more problematic.

In particular, how does the desire for free movement of goods across the Irish border square with the UK’s proposals relating to the Government’s proposals regarding the ‘Future Customs Arrangements’ with the EU?

As set out in our previous blog post, the UK has proposed two possible approaches for future customs arrangements between the UK and the EU: a ‘highly streamlined customs arrangement between the UK and the EU” leaving as few additional requirements on UK-EU trade as possible; or a “new customs partnership with the EU” which would remove the need for a UK-EU customs border, perhaps by the UK mirroring the EU’s requirements for imports from the rest of the world where their final destination is the EU.

However, in this position paper, the Government suggests that it might be necessary to go further in relation to the how new customs arrangements would impact on the Irish border. The Paper offers up the possibility of a cross-border trade exemption that would recognise the unique economic, social and cultural context of the land border and the fact that many of the movements of goods across it by smaller traders cannot be properly categorised and treated as economically significant international trade. If agreed, this would allow smaller traders to continue to operate as they do now – and according to the paper, in 2015, over 80 per cent of trade across the Irish border was carried out by micro, small and medium sized businesses.

For businesses outside of the exemption, the Government would explore the options for a streamlined customs process, for example, mutual recognition of Authorised Economic Operators. The paper also proposes additional streamlining processes for businesses identified as “trusted traders” who do not qualify for an exemption which could include reduced declaration requirements and periodic payment of duty.

Brexit negotiations are due to restart in a matter of weeks and it remains to be seen how the Government’s proposals will be formally received. For example, the Irish foreign affairs minister, Simon Coveney, had earlier suggested that the border could simply be the Irish Sea, thereby allowing free movement between the Republic and the North – although for a number of reasons this is unlikely to be palatable to the UK Government. What is becoming apparent is that question of the Irish border may prove difficult to separate from wider questions as to future customs arrangements between the UK and the EU.

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