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Dr Elaine Fahey |
The Brexit negotiations have hit a stumbling
block yet again at a critical juncture. Currently, the move from
Phase I 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 international media.
Looking forward, 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.”