The British and Irish governments should negotiate a new bilateral agreement to minimise the impact of Brexit on British-Irish and North-South relations, according to a new report by the EU committee of the House of Lords.

The agreement, which would have to be approved by the European Union, “should guarantee open land borders and sea boundaries, support cross-Border trade, and preserve EU funding for cross-Border projects”, the report says.

Describing Brexit as a “huge challenge” for Ireland, the cross-party committee warns that, if Britain and the European institutions pay insufficient attention to the impact on Ireland, Brexit could undermine the peace process in the North and the improved relations between the two islands.

“Both the UK and Irish governments desperately want to avoid a return to hard borders.

“But the Republic of Ireland will remain in the EU, and any agreement to allow an open Border to remain will have to be agreed by all the other EU member states. That’s not a given,” the committee’s chairman, Tim Boswell, said.

“We need early agreement on all sides that the UK and Ireland should be allowed to reach a draft bilateral agreement, one that protects the unique nature of UK-Irish relations, of Northern Ireland, and of North-South relations on the island of Ireland.”

The report concludes that it will be impossible to maintain the open Border if Britain leaves the EU’s customs union, so an innovative solution will have to be found.

Border checks

Michael Jay, a former British diplomat who is a member of the committee, told The Irish Times that if Britain does leave the customs union, the question of what kind of Border checks would be imposed between North and South would become a very serious issue.

“People talk about the possibility of having electronic controls of one kind or another, or controls away from the Border itself, so that the Border itself doesn’t become a hard Border. But these are easy to talk about but much harder to put into effect,” he said.

The report suggests that the only ways to retain the current open Border in its entirety would be either for the UK to remain in the customs union or for the EU to agree to a bilateral UK-Irish agreement on trade and customs.

Given the EU’s exclusive competence to negotiate trade agreements with third countries, such an arrangement would be unprecedented.

“They’re going to have to work out something which has never been done before.

“So there’s going to have to be quite a lot, I suspect, of thinking outside the box, of thinking about solutions which don’t fit into the way the EU has evolved but solutions which need to be found,” Lord Jay said.

Bilateral talks

The committee envisages that the British and Irish governments should negotiate a bilateral agreement parallel to the article 50 Brexit negotiations due to start before the end of March.

It suggests that the EU should be kept abreast of the bilateral talks from the start, because any agreement would need the approval of the other EU member states and the European Parliament as part of the final Brexit deal.

“Clearly the situation to avoid is the British and Irish governments coming up with something that the other 26 [countries] then decide is in some way difficult or unacceptable,” Lord Jay said.

“So there needs to be constant contact, but I think that the motivation would come from the Irish government and the British government deciding that this was the best way to ensure that the unique circumstances of Ireland, North and South, and the potentially very serious implications of Brexit, both for Northern Ireland and the Republic, are fully taken into account.”