The government's White Paper is an important step towards avoiding a 'hard' border in Ireland. However, sustaining the rule of law in the Irish border region will depend on institutional co-operation, writes Jan van Zyl Smit (Bingham Centre for the Rule of Law)

van Zyl Smit, Jan

LSE Research Online

Sustaining	the	Rule	of	Law	in	the	Irish	border	regionwill	depend	on	institutional	co-operationThe	government’s	White	Paper	is	an	important	step	towards	avoiding	a	‘hard’	border	in	Ireland.However,	sustaining	the	rule	of	law	in	the	Irish	border	region	will	depend	on	institutional	co-operation,writes	Jan	van	Zyl	Smit	(Bingham	Centre	for	the	Rule	of	Law).By	proposing	a	free	trade	area	in	goods	with	the	EU,	the	UK	Government	White	Paper	published	onThursday	12	July	2018	has	taken	an	important	step	towards	avoiding	a	‘hard’	border	in	Ireland.	Free	movement	ofpeople	(for	UK	and	Irish	citizens,	at	least)	is	already	guaranteed	by	the	Common	Travel	Area	that	predates	bothcountries’	EU	membership.	With	these	two	pieces	of	the	puzzle	in	place,	a	casual	observer	might	think	that	theGovernment	has	produced	a	solution	to	Brexit’s	Irish	border	problem	without	bringing	into	play	the	backstop	–	agreedwith	the	EU	but	still	highly	contentious	within	the	Conservative	Party	and	for	its	DUP	allies	–	of	Northern	Ireland’s‘regulatory	alignment’	with	the	EU.If	only	it	were	that	simple.	The	Irish	border	problem	can	be	framed	in	many	ways.	Using	the	language	of	a	‘hard’	or‘soft’	border	is	obviously	simplistic.	It	also	tends	to	focus	attention	only	on	what	happens	at	the	frontier	itself	–	asseen	in	the	White	Paper,	which	promises	to	avoid	checks	on	goods	at	the	border	but	not	elsewhere.	A	moremeaningful	question	may	be:	what	needs	to	be	done	for	the	Irish	border	region	to	enjoy	the	full	benefits	of	the	Rule	ofLaw?	It	is	worth	asking	because	Rule	of	Law	principles	–	including	legal	certainty,	equality,	access	to	justice,adherence	to	fair	procedures	and	respect	for	human	rights	–	are	valuable	to	individuals	and	businesses	in	ways	thatare	increasingly	well	understood	and	have	been	articulated	in	detailed,	practical	terms	at	both	the	European	and	UNlevel.Thinking	about	the	Rule	of	Law	in	a	border	region	requires	going	beyond	the	traditional	focus	on	what	citizens	canexpect	from	the	institutions	of	their	own	state.	In	truth,	the	Rule	of	Law	must	be	broader	than	that,	as	thedevelopment	of	a	durable	Rule	of	Law	culture	depends	on	individuals	and	private	sector	corporations	as	well	aspublic	bodies	recognising	the	relevance	of	Rule	of	Law	principles	to	their	activities.	It	certainly	makes	sense	to	askabout	the	Rule	of	Law	in	the	specific	context	of	the	Irish	border	region.	Not	only	is	the	border	itself	remarkablyporous,	with	more	crossings	than	the	entire	Eastern	frontier	of	the	EU	and	estimates	of	up	to	30,000	dailycommuters,	and	but	it	has	also,	as	the	1921	line	of	partition,	created	a	flashpoint	for	violence	arising	out	of	theNorthern	Ireland	conflict,	which	the	UK	and	EU	have	strenuously	undertaken	to	avoid	reigniting	through	Brexit.The	Bingham	Centre	for	the	Rule	of	Law,	where	I	am	a	research	fellow,	joined	forces	last	month	with	theleading	human	rights	law	firm	Bindmans	LLP	to	organise	a	panel	discussion	on	Brexit	and	the	Irish	Border:	What	arethe	Rule	of	Law	Implications?LSE Brexit: Sustaining the Rule of Law in the Irish border region will depend on institutional co-operation Page 1 of 2		Date originally posted: 2018-07-23Permalink: http://blogs.lse.ac.uk/brexit/2018/07/23/sustaining-the-rule-of-law-in-the-irish-border-region-will-depend-on-institutional-co-operation/Blog homepage: http://blogs.lse.ac.uk/brexit/Our	panel	of	four	experts	offered	a	range	of	suggestions	on	how	to	promote	the	Rule	of	Law	in	the	context	of	the	Irishborder.	Professor	Henrik	Wenander	of	Lund	University	shared	his	analysis	on	Sweden’s	border	with	Norway,	whichis	outside	both	the	EU	and	its	customs	union,	although	it	is	a	member	of	the	EEA.	Sweden	and	Norway	came	closeto	war	in	1905,	when	Norway	broke	away	from	the	Swedish	monarchy.	Since	then	a	culture	of	close	co-operationhas	developed	at	all	levels,	from	ministerial	dialogue	fostered	by	common	membership	of	the	Nordic	Council	toroutine	cross-border	contacts	between	local	civil	servants.	An	illustration	of	this	is	the	multi-national	social	securityweb	portal,	which	is	particularly	relevant	to	the	ca.	25,000	cross-border	commuters.	Professor	Wenander	noted	thatNorway	and	Sweden’s	common	EEA	membership	means	that	certain	disputes	can	be	referred	to	the	EFTA	court,which	provides	an	important	Rule	of	Law	guarantee	at	the	international	level.	However,	much	of	the	detail	of	theagreed	arrangements	between	Sweden	and	Norway,	or	those	between	other	countries	of	the	Nordic	Council,	iscontained	only	in	national	legislation	and	enforceable	in	the	local	courts	of	each	country.	In	the	absence	of	a	NordicCourt,	institutional	co-operation	underpins	the	Rule	of	Law	for	individuals	or	businesses	with	cross-border	interests.The	Nordic	Council	would	appear	to	be	much	more	active	in	facilitating	co-operation	between	countries	than	theBritish-Irish	Council,	whose	members	are	the	UK,	Ireland	and	the	Crown	Dependencies.		Another	member	of	ourRule	of	Law	panel,	Professor	Janice	Morphet,	of	Bartlett	School	of	Planning	at	UCL	and	author	of	Beyond	Brexit,argued	that	the	UK	Government	should	have	made	greater	use	of	the	British-Irish	Council	to	work	through	thechallenges	of	Brexit	for	cross-border	relations.Austen	Morgan,	a	barrister	at	33	Bedford	Row	and	one	of	the	authors	of	the	Legatum	Institute	report	‘Mutual	Interest:How	the	UK	and	EU	can	resolve	the	Irish	border	issue	after	Brexit’,	argued	that	many	forms	of	existing	co-operationacross	the	Irish	border	need	not	be	disrupted	by	Brexit.	Morgan	mentioned	the	long	history	of	intelligence	sharingbetween	police	forces	to	combat	trans-border	organised	crime.	In	the	context	of	the	1998	Good	Friday	Agreement,he	argued	that	of	the	six	cross-border	bodies	established	only	the	Special	EU	Programmes	Body	would	automaticallycease	with	the	UK’s	departure	from	the	EU.Caoilfhionn	Gallagher	QC,	a	barrister	at	Doughty	Street	Chambers,	maintained	that	common	EU	membership	hadbeen	vital	to	the	conclusion	Good	Friday	Agreement,	not	only	at	the	level	of	relations	between	the	UK	and	Irishgovernments	but	also	for	Northern	Irish	parties	to	the	Agreement	who	had	been	on	opposite	sides	of	the	conflict	andindeed	for	people	and	institutions	operating	under	it.		In	practice,	EU	law	has	given	people	in	border	communitiesmore	effective	ways	of	enforcing	their	legal	rights,	for	example	when	a	social	security	body	recognised	the	right	of	alow	paid	worker	to	use	childcare	provision	in	the	Republic	claim	UK	and	working	tax	credit.	Ms	Gallagher	alsoreferred	to	her	report,	co-authored	with	Katie	O’Byrne,	on	legal	possibilities	for	securing	a	special	EU	status	forNorthern	Ireland,	which	draws	on	the	EU’s	history	of	customising	arrangements	that	would	enable	EU	law	to	applyonly	to	parts	of	a	national	territory	(Cyprus	and	Greenland	are	among	the	analogous	cases).Returning	to	the	White	Paper	of	12	July,	we	find	some	mention	of	cross-border	issues	in	Ireland	going	beyond	thepassage	of	people	and	goods.	For	example,	the	Government	expresses	its	intention	to	maintain	the	Single	ElectricityMarket	and	the	All	Ireland	Animal	Health	and	Welfare	Strategy.	Other	areas	of	proposed	co-operation	include	cross-border	TV	broadcasting	rights	and,	in	the	area	of	policing,	the	maintenance	of	something	close	to	the	EuropeanArrest	Warrant.	Such	policy	proposals	are	clearly	designed	to	minimise	the	disruptive	effects	that	Brexit	may	cause.	Yet	it	is	difficult	to	predict	their	impact	on	the	Rule	of	Law	in	the	Irish	border	region.	If	our	panellists	are	right,	then	wewill	have	to	see	whether	the	forms	of	institutional	co-operation	that	nurture	the	Rule	of	Law	in	a	cross-border	settingcan	take	root	in	the	context	of	momentous	changes	in	the	overall	UK-EU	relationship	that	are	still	being	negotiated.This	article	gives	the	views	of	the	author,	and	not	the	position	of	LSE	Brexit,	nor	of	the	London	School	of	Economics.Dr	Jan	van	Zyl	Smit	is	Associate	Senior	Research	Fellow	at	the	Bingham	Centre	for	the	Rule	of	Law.LSE Brexit: Sustaining the Rule of Law in the Irish border region will depend on institutional co-operation Page 2 of 2		Date originally posted: 2018-07-23Permalink: http://blogs.lse.ac.uk/brexit/2018/07/23/sustaining-the-rule-of-law-in-the-irish-border-region-will-depend-on-institutional-co-operation/Blog homepage: http://blogs.lse.ac.uk/brexit/

Sustaining the Rule of Law in the Irish border region will depend on institutional co-operation

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Sustaining the Rule of Law in the Irish border region will depend on institutional co-operation

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