Irish need to follow EU rules ‘difficult to reconcile’ with open border plan

Ireland's obligation to follow European Union rules will be difficult to reconcile with keeping the border open in the event of a no-deal Brexit, MPs at Westminster have heard.

Isabelle Van Damme, an expert in international trade law, told the Northern Ireland Affairs Committee that Dublin would have to enforce the EU's customs code.

“It will be difficult for Ireland to unilaterally to take particular action in regards to trade. The Irish side has obligations as a matter of EU law to apply the common customs code. Ireland will be bound by EU rules and that will be difficult to reconcile that with its desire not to have the hard border,” she said.

Ms Van Damme was one of three lawyers to give evidence to the committee on the implications of the withdrawal agreement and the backstop for Northern Ireland.

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Stephen Laws, who was one of the British civil service's most senior lawyers, said the backstop was not fundamentally a legal matter.

‘Lack of trust’

“There might be a legal solution to this but that doesn’t address the real problem,” he said. “The problem isn’t that there isn’t an exit from the backstop. The problem is that there is a lack of trust on each side that is triggered by the backstop and finding a solution to the lack of trust is more difficult perhaps than finding a solution to the backstop.

“On the one hand, people fear that it may be an attempt to lock us in to something and that fear is generated partly by the fact that we have the capacity to leave the European Union at the moment with two years’ notice. And why would it be any worse to have the ability to exit whatever arrangement comes next with a similar period, or as it’s meant to be temporary, a shorter period of notice?”

Hamper Britain

Martin Howe, from the pro-Brexit Lawyers for Britain, said the backstop would hamper Britain in negotiating trade deals with countries around the world. He said it would put Britain at a disadvantage in negotiations with the EU about their future economic relationship.

“You cannot hold out for your essential interests. If you fail to reach agreement these terms come into effect, that constrains your negotiating power. Why should the other side give you better terms unless you are able to offer them something else in return that is better for them?” he said.