Closure and Continuity

Trade, sovereignty, rights and freedoms, courts, and constitutional change are lenses through which we can examine how two politically, culturally, and linguistically inextricably linked common law countries have defined their diverging relationship with the EU. 50 years on the divergence is complete. The UK is now a third country, charting a future outside the EU, while Ireland remains one of 27 Member States reporting high levels of trust and support for the EU.

Hence 50 years on we have both the desire for closure (for the UK) and continuity (for Ireland). Both terms suggest stability – a desirable political goal and one to which law, as the framing devise for society, is key. In fact, we argue that closure and continuity are necessary for the relations between both states and their relationship with the EU now and in the next half century.

Trade and regulation

Closure was encapsulated in the political slogan ‘Get Brexit Done’ which came to define the British public and political mood in the aftermath of the 2016 Brexit referendum. But like the slogan, closure on the UK’s EU membership belies the complexities involved. Leaving the EU, including the single market and the customs union, after 47 years of convergence and integration necessitated a radical reframing of trade relations and their regulation in only a fraction of that time.

Far more than red tape, regulation – or standard-setting, monitoring and enforcement – defines the terms upon which goods and services are traded and is at the heart of international trade. Maintaining EU standards would enable the UK to keep borders (and particularly the Ireland/Northern Ireland border) relatively free of ‘red tape’ but does not give closure on the fraught debate over standard-setting beyond them. Different standards can preclude im/exportation, while excessive or poorly resourced monitoring can slow trade down to such an extent as to render it unattractive. Poor enforcement can undermine standards while zealous enforcement can diminish trust between different systems and restrict trade. In trying to navigate these challenges to ensure the continuity of trade, the dynamism of negotiation between Ireland, the UK and the EU was shown in the conclusion of the Ireland-Northern Ireland Protocol, and now the Windsor Framework.

What debates over trade and regulation have shown is that while legal interdependence between the UK and EU has been hugely decreased since Brexit in 2020, it has not disappeared. Arrangements concerning Northern Ireland show that such interdependence for the UK, the EU and Ireland will remain a defining characteristic of their relationships. Looking forward, while legal norms like the Trade and Cooperation Agreement and the Withdrawal Agreement provide the foundational framework, the detailed rules will continue to evolve. Trust, system resilience, and a shared view of what is needed can provide the necessary continuity that allows for closure – and stability – on constitutional questions which border and define the UK, Ireland, and EU relationships.

Constitutional change in the UK

Sovereignty in the UK is tied even more now to the idea of sole and exclusive authority over a territory. Control over laws and borders in conflict with free movement rights, particularly of families and dependents, was a central point of contention for those advocating for UK withdrawal from the EU. This is reflected in the increasingly restrictive approach to migration of non-economically active third country nationals. This was evident even when the UK was a Member State for example in the case of EU children, especially black British children, dependent on the care of a non-EU national in the UK.

The extent to which membership and then withdrawal from the EU precipitated – at some points radical – constitutional reframing in the UK was not anticipated perhaps in part because the UK had struggled politically to see the EU as anything more than the single market. EU membership introduced the concept of a ‘constitutional statute’ placed atop a hierarchy of statutes, as well as limits on parliamentary sovereignty, and also introduced new principles, for example, proportionality into the nomenclature of the British courts. Post-Brexit, questions over the balance of power between the government and parliament have been tested. Successive draft laws have been introduced to assert autonomy and to remove the vestiges of EU law from the statute book but have so far not become law in the face of the need for legal certainty and to meet international obligations.

EU membership and withdrawal have also altered the balance of power between the constituent parts of the UK: Wales, Scotland, Northern Ireland, and England. While the referendum treated the UK as a single entity, Scotland has grown more assertive of its autonomy. The conventions that shape the relations of the different governments in the UK have also been diminished in post-Brexit arrangements further recalibrating the constitution with future changes between the constituent elements and Ireland possible to envisage.

No more so is this seen than in Northern Ireland, which remains without a government while the UK government considers steps less than direct rule from Westminster. Political contestation over post-Brexit governance arrangements, and the impact of the Protocol/Windsor Framework have prevented power-sharing arrangements and forming the executive in Northern Ireland. The changes wrought by Brexit necessitated a constitutional rebalancing that risks, however, further destabilisation. Where sovereignty looks to territory and part of that territory remains contingent as in Northern Ireland, then unusual governance arrangements are created. However, European history shows these do not provide grand solutions. There can be no closure without the sustained efforts required to provide continuity and to reduce contestation to allow arrangements to work, or even flourish within all constituent parts of the UK and at all its borders.

Constitutional continuity and change in Ireland

The issues of closure and continuity also arise for Ireland after this first half century of EU membership. The EU was associated with modernity in Ireland: transforming what was a predominantly agrarian economy and becoming a key European hub for multinationals especially in pharma and tech. The status of women was transformed with EU law providing the tools through which equality could be asserted and latterly providing legitimacy, levers and law that helped underpin ultimately radical reform of abortion law. There were however a number of ruptures that also fractured these narratives of continuous economic and social progress.

First, the EU has had a major impact on the Irish constitution. The constitution can only be changed by referendum of which there have been 38 since it was adopted in 1937. Thirty-four of these amendments have been since the referendum to join the EU in 1972 and eleven of these have arisen out of EU membership. Unlike other referendums which focus on specific issues such as the introduction of divorce or removal of the death penalty, the EU referendums require inclusion of major international agreements within Irish law, often with debate on the EU generally as a proxy for discussion of specifics in the Treaties given the complexity of these documents. With two treaty revisions voted on twice (Nice and Lisbon), the legitimacy of the process is weakened. At the same time, while debates were intense, the Irish electorate have repeatedly revisited and ultimately reaffirmed Ireland as an EU member state.

The courts have been able to incorporate the core principles of primacy and direct effect into Irish law, albeit the threshold was set low for treaty revisions that would trigger a referendum to change the constitution. Having had a slow start, in recent years the Irish superior courts have made far more references to the CJEU some of which have had a major effect on EU Law for example in relation to the status of the European Stability Mechanism; the independence of the judiciary in Poland and data protection. Most recently, and perhaps following the surprise decision of the CJEU that a tribunal set up to give effect to the equality directives could disapply national law under the primacy principle, the Supreme Court has adopted the language of constitutional identity suggesting a core set of principles or ideals vaguely defined which could however be invoked in the future against EU law.

The most fundamental rupture was the fiscal crisis of 2008 – and the requirements imposed by the Troika to overcome it. The impact on certain sectors of the economy were profound with the most long lasting effect being a housing crisis– not specifically attributed to EU policies – now proving a serious problem. In general, Ireland recovered well economically but the promise of prosperity so long associated with the EU was strained. At the same time, cooperation around vaccine purchase and rollout, the limited impact of the Mediterranean migration crisis on Ireland (and the relative ease with which large numbers of Ukrainian refugees have been welcomed), have restored the sense of continuity and optimism in the EU. And of course, Brexit has loomed large. Ireland has benefitted most from EU supports to mitigate negative economic effects of Brexit and will also receive €989 million under the post-covid EU Recovery and Resilience Facility. More significantly, the EU has been willing to develop a multifaceted bespoke response in light of the Belfast/Good Friday Agreement: the Common Travel Area continues, Ireland remains outside Schengen under Protocols 20 and 21, and now the Windsor Framework, have been put in place.

The future of Ireland and the EU

Ireland remains an optimistic EU Member State with little debate on withdrawal, the UK experience of political polarisation, constitutional impact and increased trade regulation having proved salutary. The next EU treaty revision will require a further referendum allowing for renewed debate and engagement at the level of constitutional politics and law. While Ireland was sometimes the only state to hold a referendum, the challenge for the EU is that treaty revision is now much more complex with over 40 parliamentary chambers required to give approval and several states likely to hold referendums.

The EU for now has shied away from treaty revision instead using the low key Conference on the Future of Europe to garner (limited) discussion among citizens. There are at least three issues that will be of concern in the future. First, the war in Ukraine has prompted some discussion on Irish military neutrality, and a discussion on the triple lock whereby UN permission is required to deploy Irish troops abroad. The issue is politically sensitive rendering it likely that Ireland will continue to retain special status under the EU defence regime, as this was a ‘hot button’ issue in previous EU referendums.

Second, Ireland is likely to remain outside Schengen instead retaining the common travel area with the UK which ensures free movement and related rights for citizens of both states. The limited legal status of arrangements between the two states means that high levels of trust and cooperation are required between both governments and their civil servants for it to continue to work. Hence the recent removal of e-visa requirements for those EU nationals crossing the land border is welcome given the extent to which the border is porous for people’s daily lives.

Finally, Ireland is a small state and while legally all states are equal in EU law, and while Brexit has shown the extraordinary extent to which the EU is willing to take on board the particular concerns of one Member State, a key issue in the Lisbon ‘no’ vote was the loss of a Commissioner – which was restored for all Member States. It is likely the EU will continue to grow. New members will continue to raise necessary questions as to how governance is structured – including how the Member States are represented in the institutions, and it will be important but difficult to balance effective representation and effective governance.

The continuity of EU membership for Ireland ensures stability around trade, travel and inward investment. Constitutionally, it can and will continue to accommodate the vision and values of the EU. The impact in the future on the legal order is uncertain as Ireland is now the only fully common law in the EU. In particular the courts and criminal law systems are now outliers in the EU as the only non-civil law regimes (although the civil law is not a monolith so differences can be exaggerated). The criminal law system is protected through the (convoluted) opt outs Ireland has under Protocols 21 and 22. The EU has no interest in dismantling any national legal order that adheres to EU values, but it is not at all clear how the common law will change in the next 50 years. And it begs the question should serious concerns arise between a specifically common law concern and EU law, the Supreme Court would look to the currently vague notion of constitutional identity to seek to shape the relationship between EU law and Irish common law.

50 years on

Economically inextricably interlinked, Ireland had to join the EEC when the UK did in 1973. Both of them tried three times to join, and both have had referendums on Europe since – constitutionally binding in Ireland and consultative in the UK. Beyond this, however, the parallel paths of both the UK and Ireland at the beginning have widely diverged. Ireland has remained an EU member state, with a judiciary constructively engaged with EU Law and the realisation of EU rights. Continuity of Irish membership seems politically certain, though no doubt crises will continue to arise for the EU there will be inevitable moments of constitutional reflection on the meaning and nature of Irish membership. For the UK, Brexit is done but the promise and hope of closure following withdrawal has had to be tempered. The unique situation and constitutional arrangements of Northern Ireland require the recognition of interdependence, while good neighbourly relationships need continuity and engagement.

In reflecting on the past 50 years, we can predict the future with no certainty. However, we can perhaps hope for mutual prosperity and commitment to the values of constitutionalism as we close on this moment and continue to the next.