‘Flexible and Imaginative’: The EU’s Accommodation of Northern Ireland in the UK–EU Withdrawal Agreement

Published date01 April 2021
Date01 April 2021
Subject MatterArticles
International Studies
58(2) 201 –218, 2021
© 2021 Jawaharlal Nehru University
Reprints and permissions:
DOI: 10.1177/00208817211001999
‘Flexible and
Imaginative’: The
EU’s Accommodation
of Northern Ireland in
the UK–EU Withdrawal
Katy Hayward1
The 1998 Good Friday (Belfast) Agreement that cemented the peace process
formalized Northern Ireland’s position as a region integrally connected to
both Great Britain and the Republic of Ireland. The multilevel governance and
cross-border cooperation this entailed was enabled by common UK and Irish
membership of the European Union. The UK’s decision to leave the EU posed
risks to this settlement. In response, they engaged in a quest for ‘flexible and
imaginative solutions’ to this conundrum. The unique arrangements established
through the Protocol on Ireland/Northern Ireland in the UK–EU Withdrawal
Agreement (2019) mark an innovative and ambitious development for the EU.
First, it de facto includes a region of a non-member state within its internal
market for goods and, second, it delegates the enforcement of its rules to that
non-member state. The Protocol represents a significant departure for the EU
in terms of its typical engagement with external actors. Most significantly, it will
not only represent a ‘live’ concern for the EU but a unique type of responsibility.
1998 Good Friday (Belfast) Agreement, border management, dynamic alignment,
multilevel governance, Protocol on Ireland/Northern Ireland, Withdrawal
1 Professor, Queen’s University, Belfast, UK.
Corresponding author:
Katy Hayward, Queen’s University, Belfast, BT7 1NN, UK.
E-mail: k.hayward@qub.ac.uk
202 International Studies 58(2)
On 29 March 2017, the British Prime Minister, Theresa May, wrote to the President
of the EU Council, Donald Tusk, to trigger Article 50 of the Treaty on European
Union and set the clock ticking on the UK’s exit from the EU. In doing so, she
proposed a set of principles for the UK–EU discussions. One such principle was
that ‘we must pay attention to the UK’s unique relationship with the Republic of
Ireland and the importance of the peace process in Northern Ireland’ (HMG,
2017b). She elaborated:
The Republic of Ireland is the only EU member state with a land border with the
United Kingdom. We want to avoid a return to a hard border between our two
countries, …to make sure that nothing is done to jeopardise the peace process in
Northern Ireland, and to continue to uphold the Belfast Agreement. (HMG, 2017b)
For its part, the EU emphatically concurred. The guidelines issued by the
European Council for the withdrawal negotiations also acknowledged ‘the unique
circumstances on the island of Ireland’ and the need to support the Belfast (Good
Friday) Agreement.i As such, it recognized that ‘flexible and imaginative solutions
will be required, including with the aim of avoiding a hard border, while respecting
the integrity of the Union legal order’ (European Council, 2017, emphasis added).
The common principle was clear and—from the perspective of people of all views
across the island of Ireland—very welcome. However, as with so much in the
Brexit process, the interpretation of this principle was very different between the
two sides. What it meant to ‘avoid’ a ‘hard border’ on the island of Ireland, let
alone what was required to achieve it, was to become one of the most bitterly
contested aspects of the UK–EU negotiations.
This article considers the ‘flexible and imaginative’ solution that was ultimately
found by the UK and EU to achieve this joint objective. This took the form of the
Protocol on Ireland/Northern Ireland that was incorporated into the UK–EU
Withdrawal Agreement that was ratified in January 2021. It notes the differences
between the two sides that led to this point. It also outlines both the extensiveness
and the limitations of the flexibility and imagination that had to be shown by both
sides in coming to this arrangement. The argument put forward is that this marks
a new undertaking in the self-conceptualization of the European Union—the full
consequences of which will only be revealed over time.
Avoiding a Hard Border
The Conundrum
From the very beginning, there was a tension in the approach of British Government
ministers to the challenge of avoiding a hard border on the island of Ireland in
Brexit. The Prime Minister frequently used the phrase ‘no return to a hard border’,
which (no doubt unintentionally) evoked memories among those who had been

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