Brexit, ‘regulatory alignment’ and the Irish border
By Dr Elaine Fahey, Reader in Law at the City Law School
The Brexit negotiations have hit a stumbling block yet again at a critical juncture.
Currently, the move from Phase 1 to Phase II of the negotiations is stalled as the British Prime Minister tries to keep her confidence and supply a deal with the Northern Irish DUP party in check. The UK and Irish Governments have ostensibly agreed ‘regulatory alignment’ on December 4th as a way to avoid a so-called hard border. What this means is very important.
If Northern Ireland and the Republic of Ireland (ROI) were to be ‘aligned’ in their laws, no question of border checks would arise. The Irish Government has emphasised repeatedly that the Good Friday Agreement, peace and the lack of a North-South border is at the core of their Brexit ‘expectations’ to move from Phase 1 to 2 of the Brexit negotiations.
‘Regulatory alignment’ would allow doctors North of the Border to write prescriptions for patients to take to their pharmacist South of the Border, with knowledge of the drug standards and systems applicable on the Island through the operation of EU law. Or it would allow food supplies to be distributed and supplied North and South so as to continue existing sales and provision arrangements across food supply chains, between famers, shops and chain stores across the Island.
Regulatory alignment is, however, also the only likelihood between the UK and EU for the development of a ‘deep and special’ partnership cum trade agreement. Whether alignment with EU law is called that or convergence does not matter in principle, as the Irish Taoiseach has repeatedly emphasised to the international media, a core question is: What form of ‘regulatory alignment’ the Prime Minister is committing to?
Scotland, Wales and even London now wonder what this means and whether they should want it - ostensibly most appear to. Some hard Brexiteers argue that it may to be ‘too close for comfort’ to the EU. In reality, however, a ‘deep and special partnership’ will necessitate regulatory alignment or even very deep regulatory convergence form a legal perspective. This is unequivocally the case as the basis of all EU trade agreements to date.
Even EU-CETA requires Canada to comply with all EU laws.
It is hard to understand the regulatory alignment agreement as such a controversy then. Instead, it exposes the extraordinary divisions underlying the expectations as to what is achievable under existing EU law.
Such divisions necessitate further reflection, deliberation and patience - and uncomfortably - time, the latter of which is now running out prior to the European Council meeting next week.