An abandoned Customs Facilitation Office at the border between the Republic of Ireland and Northern Ireland. Photo: PA

As we enter the UK’s last full year as a member of the EU, negotiations are about to begin to determine the long-term relationship with the EU27. The Progress Report of December 8th 2017 recorded agreement on UK ‘divorce’ payments, the rights of EU citizens and arrangements for the land border between the UK and Ireland. The Cambridge Law Professor Simon Deakin takes the view that “while this is merely a joint report on progress in phase one of the Brexit negotiations …. Its contents are likely to be incorporated into the withdrawal agreement envisaged by article 50.”

Some UK Ministers have suggested that its contents can be amended and point to the Report’s opening statement that “nothing is agreed until everything is agreed.” In addition, paragraph 46 of the Irish border section of the Progress Report states that “the commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the EU and the UK and are, as necessary, specific to the unique circumstances on the Island of Ireland.” 

All is thus to play for—but Deakin’s interpretation is likely to dominate EU thinking, and unless the UK is prepared for ‘no deal’ on trade, it will dominate.

Any non-negotiability of the Progress Report’s contents will present a real problem that will come to haunt the stage two negotiations. Specifically, big problems are likely to arise over what should be a small issue: the Irish land border.

A triumph of Irish diplomatic manoeuvring

The prominence of the Irish border in the stage one negotiations and in the Progress Report (where it occupies 14 out of 96 paragraphs) was a triumph of Irish diplomatic manoeuvring over common sense.

The crux of the problem is the Irish demand, and UK undertaking, to avoid a hard border on the island of Ireland. The Report is silent on where or how this commitment was made and focusses instead on how this commitment is to be operationalised. The key paragraph states that “The UK’s intention [is to avoid a hard border] through the overall EU-UK relationship. Should this not be possible the UK will propose specific solutions to address the unique circumstances of the island of Ireland.”

“In the absence of agreed solutions, the UK will maintain full alignment with the rules of the Internal Market and the Customs Union which, now or in the future, support North-South co-operation, the all-island economy, and the protection of the 1998 [Good Friday] Agreement.”

The important issue here is whether the UK is promising to maintain full regulatory alignment—however interpreted—only within Northern Ireland, or alternatively across the entire UK.

Some have taken the former interpretation, but most, including Professor Deakin, take the latter. Taken at face value it appears to commit the UK to observing all EU current and future regulations merely to avoid a hard border in Ireland.

The latter interpretation imposes huge hostages to fortune and represents a massive wagging of the UK dog by the Irish tail.

A change in position

One thing often overlooked in discussions about the Irish border issue is why a hard border should be avoided. The most widely stated reason for avoiding a hard border is to maintain the ‘peace process’ in Northern Ireland. This is a vague term and it is unclear what ‘process’ is being referred to.

Many, including Tony Blair and John Major, imply that what is at stake is ‘peace’ itself, and hence a return of the violence of the 1968-1998 ‘troubles’. This is incorrect. No-one at senior level in Northern Ireland has suggested that largescale violence will resume, including the leaderships of the two main nationalist parties in Northern Ireland.

Everyone on the island would prefer no checks or stops on personal travel. This is already agreed on the UK side, although it is less clear whether the EU will insist on checks on individuals carrying small amounts of goods.

In their position paper of last August, the UK Government also proposed that goods trade would involve no border posts or lorry stops. Instead electronic monitoring, trusted trader rules and exemptions for small business would be put in place. (Jean Claude Juncker dismissed these constructive proposals as “magical thinking”—presumably because the EU was unlikely to take as a relaxed view as the UK of the need for border checks.)

The EU supported the Irish government in rejecting the UK proposals. But it needs to be made clear that this hard stance dates only from last summer  around the time that Leo Varadkar took over as Taoiseach.

Enda Kenny had been co-operating with the UK. Irish preparations were underway for electronic border monitoring. Quiet discussions were taking place between civil servants in Ireland and Northern Ireland. Kenny kept northern Unionists politicians informed of his discussions with Brussels.

Varadkar stopped all of this, for reasons never made clear. One possibility is that he realised that however accommodating the UK was prepared to be on the border, the EU was always likely to be less flexible and to demand border checks.

The rise of national identity

The other possibility is that there has been a switch in Irish focus from the practicalities of personal travel and trade checks (which the UK assumed was the issue), to the more political and psychological issues of national identity.

The fact is that the Republic of Ireland and northern nationalists have not given up their active desire for Irish Unity. The Irish Foreign Minister, Simon Coveney, recently caused concern among Unionists in asserting to an Irish parliamentary committee that he wishes to see Irish unity within his “political” lifetime.

Varadkar has also recently speculated on the conditions under which unity could occur. The opposition to a hard border, or indeed any border, should be seen with the context of this continuing desire for unity.

Although there is already a currency border, and differences in excise duties—occasioning  much smuggling and hence surveillance by police and customs officials—the greater salience of a border between the UK and EU makes it clearer that Northern Ireland is part of the UK, despite the rights of its citizens to claim Irish citizenship.

The more psychological aspects of the border issue were well-expressed in a recent letter to Varadkar from 200 prominent northern Nationalists, claiming that “Brexit threatens to reinforce partition on this island and revisit a sense of abandonment.” Nationalist Ireland, it was argued gave up its claim to Northern Ireland in return for a seamless border and cross-border co-operation.

Northern Ireland’s unionists might accept that this is what the Republic’s Government and northern Nationalists believe, but not that this has much substance in either law or reality.

The Irish claim on Northern Ireland had no legitimacy in international law. Nor was meaningful North-South co-operation opposed by Unionists. It was instead prevented by the on-going violence of the Troubles. Reassurances to the northern nationalists are built into the 1998 Good Friday Agreement and are not in any danger.

No threat to the Good Friday Agreement

A persistent claim of the Irish Government, fully backed by the EU, is that an invisible border is necessary to protect the Good Friday Agreement. Not only does the Good Friday Agreement not mention the border, but it also makes little reference to the EU other than to note its existence.

The Irish Government has instead extended references to the Good Friday Agreement to include not only the Agreement itself—which is an international treaty—but also any subsequent arrangements made under the auspices of the Good Friday Agreement’s North-South Ministerial Council (NSMC). This includes issues such as the ability of ambulance services to operate freely on either side of the border taking people to the nearest hospital irrespective of country.

It is unthinkable that the UK would wish to unwind such sensible co-operation, and once again any potential problem comes not from the UK but from the EU.

The Irish government appears to have quietly judged that EU inflexibility was unlikely to be overcome, and that Ireland’s best course of action was to attempt to force the UK to effectively remain within the Single Market and Customs Union—or at least to force Northern Ireland to do so.

The latter idea was quickly squashed by the UK, leaving the Irish with only the options finally built into the Progress Report.

An insoluble problem

To the UK, this renders the Irish border issue virtually insoluble without backtracking on the decision of the 2016 Brexit Referendum. The hope must be that enough progress is made on free-trade and regulatory alignment in stage two of the Brexit talks to take the heat out of the Irish issue.

Free trade will not be a problem to the UK—although they should perhaps threaten to exclude agriculture if financial services are also excluded. Full regulatory alignment across the whole UK will however close off options for trade with the USA and other non-EU nations and hence is not a practical option.

In practice, it seems that the UK negotiating position is not to offer this. The FT, for instance, reports that regulatory convergence will be sought for pharmaceuticals and aviation. Such sectoral detail would not be needed of all activity was to be aligned.

This leaves the border issue unresolved. The proposals in the Progress report are inconsistent in promising no border controls, either with Ireland or between Northern Ireland and GB, without abolishing tariffs or the need for third-country origin checks. The UK Government has ducked this issue, perhaps hoping that further down the line the EU will not risk failing to get their money for the sake of some minimal border checks in Ireland.

More publicity is now needed on the shallow nature of the Irish demands, to undermine their legitimacy as a precursor to insisting on a UK, rather than Irish, interpretation of the Progress Report.

3135393845cba6d2ba1a130.84877088