Brexit, all comes down to this: The Irish Question.

As on so many other occasions over the past 200 years, the English, and it is mainly the English, do not know to handle the existential problems that Ireland creates for UK politics.

As we have done previously in this Briefing, it is well to remind ourselves that the UK voted to leave the EU. It was not pushed out, expelled or asked to leave. It decided to leave, and UK Prime Minister, Theresa May, determined, fairly much on her own it seems, that leaving meant leaving the single market, the customs union, the jurisdiction of the European Court and ending the free movement of people. The problems of Brexit are entirely of the UK’s making.

The EU didn’t start the fire.

Despite initial shock and deep disappointment, the EU has never sought to challenge the decision of the UK to leave. It accepted the decision and told the UK that its departure would have to be dealt with in accordance with Article 50 (A50) of the Lisbon Treaty. The key language in A50 reads:

In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

The Council guidelines identified three key elements that had to be dealt with in the Withdrawal Agreement (WA):

1. Settlement by the UK of its financial obligations to the EU arising out of commitments entered into as a member
2. The rights of EU citizens living in the UK and UK citizens living in EU member states at the time of the UK’s exit
3. The avoidance of the recreation of a “hard border” on the island of Ireland between Ireland, a remaining member of the EU and Northern Ireland, departing as part of the UK. (See: https://beergbrexit.blog/2018/03/12/ni-special-economic-zone/)

There does not have to be a comprehensive agreement on the “future relationship” between the UK and the EU. Just an agreement on the “framework” for such a relationship. The UK’s recently published White Paper (WP) tries to pre-empt the “framework” and set out the provisions of the substantive deal it would like to see.

The WP is going nowhere.

Not only because the EU will not accept its attempt to slice and dice the EU’s “four freedoms” (the free movement with the EU of goods, capital, services and people) to the UK’s advantage, but also for procedural reasons – as the EU can only enter into discussions on a comprehensive agreement with the UK when it becomes a “third country”, when it has left the EU.

However, it would not be difficult to craft a framework formula which says that future discussions between the EU and the UK will take fully into consideration the aspirations and ambitions of the UK as set out in the WP while respecting the autonomy of decision making of the EU and the integrity of its internal political and economic processes and principles. Nothing ruled in, nothing ruled out. At least for the moment.

Realising that there are no circumstances in which it would be ready to leave the EU in March 2019, the UK asked for a transition period, a standstill arrangement during which it would follow all EU rules and procedures. It would be a de-facto if not a de-jure member of the EU. The EU offered such an arrangement, to run from March 2019 to December 2020, subject to the conclusion of the WA and acceptance by the UK that during this time it would not have the right to participate in EU governance structures.

Of the three key elements that the EU Council has said need to be covered by the WA two are fairly much agreed, the settling of financial obligations and the rights of citizens. The border in Ireland is what stands in the way.

Last December, the UK and the EU agreed a Joint Report on the progress of the Brexit negotiations. Paragraph 49 of that report, the “Ireland backstop” reads:

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.

This was seen as a commitment by the UK government to keep Northern Ireland aligned with the rules of the EU customs union and single market. It was this alignment, along with the Ireland/Northern Ireland/UK Common Travel Area, dating back to the 1920s, that saw the end of the physical border in Ireland in the 1990s. No need for a border if you do not have to check either goods or people.

But at the same time the UK government made a commitment to the Northern Ireland Democratic Union Party (DUP), on whose 10 votes in the House of Commons it depends for its majority, in paragraph 50 of the Joint Report. It reads:

In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

Commentators were quick to point out that if May kept to her “red lines” of leaving the single market, the customs union and the jurisdiction of the European Court then it would not be impossible to honour the incompatible commitments made in paragraphs 49 and 50. She could only honour one of the two.

Within days of signing the December report, the UK government suffered a bout of “negotiator’s remorse”, that black mist which descends when the reality of what has been agreed slowly dawns and the consequences become clear. It has since being looking for ways to hollow out the Article 49 commitment.

Or, as the lawyer and journalist, David Allen Green puts it somewhat more elegantly:

“So what we have at the moment is an attempt by the UK to find ways of managing that risk, other than the backstop.” here

But both the Irish government and the EU are keeping the UK’s feet to the fire. As the Irish Tánaiste (Deputy Prime Minister) and Foreign Minister, Simon Coveney, tweeted this week,

If UK Govt don’t support current EU wording on Backstop in draft Withdrawal Agreement, then obligation is on them to propose a viable and legally operable alternative wording that delivers same result: no border infrastructure. Clear UK commitments were made on this in Dec+March.

Adding to the pressure, the EU’s Brexit negotiator, Michael Barnier said yesterday when meeting new UK Brexit Secretary, Dominic Raab:

“On the withdrawal agreement it is a matter of urgency to agree on a legally operative backstop for Ireland and Northern Ireland,”

“We need an all-weather insurance policy.”

Today, Friday, July 20, Theresa May said in a speech to a conference in Belfast:

“The economic and constitutional dislocation of a formal ‘third country’ customs border within our own country is something I will never accept, and I believe no British prime minister could ever accept”

As an old labour relations negotiator, I read words carefully.

Mrs May does not say here that all borders are ruled out. What only appears to be ruled out is the “economic and constitutional dislocation” of a “formal ‘third country’ customs border”.

Keep in mind that we are only talking about backstop language that will be included in the WA which, if agreed, will provide for a transition period during which the full details of the EU/UK relationship will be negotiated.

If a future agreement eliminates borders between the UK and the EU then the backstop would not be needed. What is needed now is bridging language on the backstop that allows the WA to be signed off, so avoiding the UK leaving the EU next March in circumstances that would be highly damaging for all parties.

Mrs. May’s words, quoted above, begs the question: when is a border not a border?

I suspect for most people a border means some sort of visible physical infrastructure, barriers and buildings which house border guards and custom officials who stop and inspect people and goods. If there is no such physical presence is it a border?

Between Ireland and Northern Ireland there is a border 500 kilometres long, with multiple crossing points. Today, as the UK government itself admits, the technology to invisibly police such a border does not exist. It may well exist in the future but it could take years to develop and perfect.

On the other hand, goods that travel from the mainland UK to Northern Ireland do so through a limited number of seaports and airports. There are already a range of checks on some products that pass through these ports. To date, no one has argued that these checks somehow cause “constitutional dislocation” between Northern Ireland and the UK. Further, Northern Ireland differs in some social laws, such as those on abortion and gay marriage, from the mainland. Does that amount to “constitutional dislocation”?

Were Northern Ireland to remain aligned with EU custom and single market rules if the rest of the UK was not then goods coming into NI from mainland UK would have to be checked to ensure conformity with EU standards. Would doing this invisibly at ports really constitute a border and would it undermine the constitutional integrity of the UK?

Instead of describing it as a border could it be described as simply “regulatory compliance facilitation”?

If differing social rights touching on abortion and gay marriage are not regarded as “constitution dislocation” then how can electronically checking a washing machine at Belfast airport be so regarded? Ask any person from Northern Ireland how difficult it can be to get Northern Irish banknotes, which are denominated in UK Pounds, accepted in shops or bars in London, Birmingham or Manchester.

It may be argued that such an arrangement would be unacceptable to the DUP. But the DUP is not representative of majority opinion in Northern Ireland when it comes to the EU. Northern Ireland voted 56% to 44% to stay in the EU completely, not just in the single market and the customs union.

Every economic analysis since the referendum clearly shows that in the event of the UK leaving the EU without a deal Northern Ireland would be hit harder than any other part of the UK. A price worth paying to avoid invisible checks on some goods at ports and seaports because the DUP brands such checks as “constitutional dislocation”?

Keep in mind also that the treatment and management of goods moving from Northern Ireland to Britain after Brexit is entirely a matter for the UK government.

What we are talking about is managing traffic from mainland UK to Northern Ireland in order to ensure that there is no backdoor into the EU for non-conforming goods through Northern Ireland, into Ireland and on to mainland Europe.

All that is being asked of the UK government at this time is that it honour the backstop on Ireland that it agreed last December, a backstop which may never have to be used.

Would an undertaking now to “regulatory compliance facilitation” between the mainland and Northern Ireland really lead to the breakup of the UK if it had to be activated? A “no deal” Brexit is more likely to do that.

There will come a point when, if all else is agreed, the UK parliament is going to have to decide whether the demands of the DUP takes precedence over the greater good of the whole UK.