Making ourselves heard in the Brexit cacophony
As the only UK region with a land border to a remaining EU member state, Northern Ireland faces unique and complex challenges during Article 50 negotiations.
We expect to learn soon whether the crown prerogative entitles the government to trigger Article 50 of the Lisbon Treaty, and formally begin the process of the UK’s disengagement from the European Union (EU) without the need for explicit prior authorisation from Parliament.
The issue is currently the subject of an appeal by the government to the Supreme Court, against a previous High Court judgment which decided that the crown prerogative did not in itself authorise the government to invoke Article 50.
If prior parliamentary approval is needed, which would likely be in the form of an Act of Parliament, this creates an opportunity for those opposed to Brexit in the Houses of Commons and Lords to try and block or delay triggering Article 50. Ultimately, however, it is likely that at most this would just delay the government’s timetable of invoking Article 50 by the end of March.
Once notice has been served under Article 50, there is a two-year period in which the UK must negotiate the terms of its exit from the EU, failing which the UK automatically ceases to be an EU member state.
The only exception is if the UK and all other 27 EU member states agree to extend the deadline, which is unlikely in practice.
Unless there is a trade deal otherwise agreed, once it becomes a “third country” and ceases to be an EU member state, the UK will begin trading with EU countries on the basis of the terms laid down by the World Trade Organisation (WTO).
This would lead to the imposition of tariffs, at levels to be determined by the UK, on imports from all other countries, including from the Republic.
Under WTO rules, the UK could not agree a lower set of tariffs with just some countries, such as the EU states — it would have to adopt a single set of tariffs that applied to all imports into the UK, regardless of their country of origin.
In the same way, under WTO rules, tariffs would be imposed on exports from the UK to EU countries, including to the Republic. Currently, the percentage tariffs imposed by the EU range from low single digits to over 30% for certain agricultural products.
If the UK becomes a third country, there will need to be some form of customs and immigration controls between Northern Ireland and the Republic. The UK and Republic could not between them agree a relaxation of such controls, because the EU (rather than individual EU countries) has jurisdiction over external customs issues and principles of free movement.
But it would in principle be possible for the EU and UK to agree that such controls are waived. However, negotiations with the EU over the terms of the UK’s exit and the shape of its future trading relationship with the EU will take the form of an immense exercise in horse-trading.
This means balancing the parties’ respective positions on a range of issues, including from free movement of persons, to agriculture and fisheries, to access to the EU market for UK financial services and cars.
In these complicated negotiations, real efforts will need to be taken by a range of interested parties to ensure attention is paid to the specific circumstances and needs of Northern Ireland and its interactions with the Republic.
If recent political developments leave Northern Ireland without a devolved administration during this crucial period, the task of making its voice heard amid a cacophony of competing interests is certainly more difficult.
- Guy Lougher is partner and head of Brexit advisory at law firm Pinsent Masons