Mutual enforcement is the democratic solution to Northern Ireland's border dilemma

The upcoming debate on the Second Reading of the Mutual Enforcement Bill from Jim Allister MP in the House of Commons will be a key moment for Northern Ireland.

All unionist MPs have thrown their weight behind the Bill.

The EU has been enormously successful, with the help of nationalists and republicans, in trying to create a fantasy world in which they argue that those who voted for Brexit, actually voted for the Irish Sea Border because, in the context of the Belfast/Good Friday Agreement, the Irish Sea border is what Brexit entails.

This narrative rests on a couple of falsehoods and the Bill calls them out.

The first falsehood is the argument that Irish Sea border must be imposed through the Windsor Framework because it constitutes the only way of delivering Brexit in the context of the Good Friday Agreement which prohibits a hard border across the island of Ireland. There are two problems with this argument.

First, the principal significance of the Belfast/Good Friday Agreement was not that the border between Northern Ireland and the Irish Republic was removed, but that agreement was reached that unless a border poll demonstrates majority support for Northern Ireland leaving the UK, the border is recognised where it is. While it talks about normalising military provision and reducing military installations, it does not say there can be no customs installations or military presence. None of that is to suggest that avoiding a hard border is not highly desirable, just that it is not prohibited by the Belfast/Good Friday Agreement.

Second, while there is nothing in the Belfast/Good Friday Agreement prohibiting a hard border across the island of Ireland, it plainly prohibits the Irish Sea border, as imposed, not just on one but on three bases.

The Belfast/Good Friday Agreement is clear: i) ‘that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people’ – any change, here, plainly covers the Irish Sea border making NI an EU colony, disenfranchising the people of NI on 300 areas of law and placing us in the single market of another country; ii) that Stormont decisions should be subject to cross community consent if either nationalists of unionists request it, which the Windsor Framework dispenses with for the impending Stormont border vote and iii) that the protection to ‘pursue democratically national and political aspirations’ must be upheld. The Irish Sea border removes our right to ‘pursue democratically national and political aspirations’ in a staggering 300 areas of law.

So, if you want to argue we should avoid a hard border across the island of Ireland because of the Belfast/Good Friday Agreement, you will have to argue even more fervently that we must avoid an Irish Sea Border for the same reason.

The second falsehood upon which the Irish Sea Border and Windsor Framework rests is the contention that if we reject a hard customs and SPS border across the island of Ireland, the provision of a hard border down the Irish Sea is the only alternative.

Nothing could be further from the truth. Mutual enforcement, developed initially from within the EU, provides a way of protecting the integrity of the EU Single Market and the UK Single Market without a hard border and, unlike the Irish Sea Border, it does not violate the Belfast/Good Friday Agreement in any way.

The essence of mutual enforcement is that both the UK and the Irish Republic pass their own laws requiring companies producing goods for sale in the other to do so to its standards. Each government also undertakes to collect the relevant duties and transfer these to the other ahead of the goods crossing the border. This arrangement means that instead of the whole of Northern Ireland being subject to the laws of another country (as in Northern Ireland at present) only companies producing goods for sale in the other would be required to do so to its standards, and they are only subject to this legal requirement because of legislation made by their own Parliament, not legislation made by a foreign Parliament.

In all of this the Mutual Enforcement Bill presents a serious challenge both to the EU and UK Government.

First, it brings domestic legislation back into alignment with our obligations in international law set out in the Belfast/Good Friday Agreement, restoring the right of unionists or nationalists to insist on a cross community vote on any matter at Stormont, which is critical if we are to enjoy credible government as a divided society.

Secondly, it pulls the rug from underneath the feet of the EU and UK Governments, demonstrating that there is an alternative to the Irish Sea border, by providing legislation to introduce Mutual Enforcement, including provision for how this should be implemented if the Republic refuses to engage.

The EU might respond by saying that it prefers the Irish Sea border to Mutual Enforcement, but if they do have technical preferences these must surely be laid aside given the strength of their commitment to uphold the Belfast/Good Friday Agreement which the Irish Sea border is now violating so comprehensively.

This is especially so when it is noted that the flow of goods across the Irish Republic – Northern Ireland border only amounted to 0.003% of goods coming into the EU single market in 2020.

Moreover, and quite apart from the Belfast/Good Friday Agreement, in a context where there are two ways of managing the border, if the EU argues for the Irish Sea border over Mutual Enforcement it will needlessly make itself the author of the largest denial of democracy and the greatest imposer of disenfranchisement in modern times, completely undermining its work promoting democracy amongst developing countries.

It is not in their interest to be in this position any more than it is in ours.