The Irish border has proved to be one of the most intractable aspects of Brexit, says Michael Keating, and the proposals put forward by the UK Government show little signs of being endorsed by Dublin or, as a result, Brussels.
One of the most intractable issues remaining in the Brexit negotiations is Northern Ireland and its border with the Republic of Ireland. All sides are agreed that an open border and extensive north-south cooperation are essential to sustain the 1998 settlement, which is already in difficulty for other reasons. All agree that there should be no ‘hard border’ or return to the ‘borders of the past’. At the same time, the Conservatives and their Democratic Unionist allies are adamant that the UK, including Northern Ireland, will leave both the customs union and the EU single market. Much effort has been put into squaring this circle, so far to no avail.
The UK Government has pressed for a technological solution. With electronic customs filing and aerial surveillance, they argue, a physical border can be avoided. This does not answer the problem. A virtual, electronic border is still a border and departure from the customs union and single market will still impose barriers to trade in the form of differences in regulation and product standards and, possibly, tariffs. The real question is not technical but political and economic.
The Irish Government, as one of the 27 EU member states, was able to make the border a condition for proceeding to substantive talks on Brexit and the future relationship. After a tense few days and one false start, a form of words was agreed in December. This included three ways out. First, it was hoped that the new overall relationship with the EU would resolve the problem. Failing that, the UK would propose specific solutions. In the last resort, the United Kingdom would ‘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.’
The UK Government’s interpretation was that the first option was preferable. Yet it has failed to specify what overall arrangement it wants, due to its own internal divisions. It has not come up with specific solutions (option 2). For option 3, alignment could be confined to a specific list of matters relevant to the 1998 agreement. There was a mapping exercise to identify these, which produced over a hundred items but these were so connected with other matters as to make them difficult to disentangle. In fact the 1998 Good Friday Agreement says rather little about EU matters, but as the process has developed over twenty years, it has encompassed a vast range of issues.
The Irish interpretation was that all three options would require full regulatory alignment between the two parts of Ireland. Unless the UK wanted barriers between Great Britain and Northern Ireland (which they said they did not), this would imply alignment of the UK and the whole of Ireland. This has the advantage, from the Irish point of view, of retaining most of the single market provisions between Ireland and Great Britain, which is a more important market for them than the North.
The Commission’s draft withdrawal agreement takes the Irish interpretation. It proposes a common regulatory area in Northern Ireland, which would remain in the customs union and subject to EU product standards. This is essentially the single market, less the provisions for freedom of movement, although Northern Ireland citizens would still have the right of free movement if they opt to take Irish citizenship as, the document emphasizes, is their right.
There have been suggestions that this could all be met by keeping the whole of Ireland in the single market and customs union, putting the border ‘in the Irish sea’. This has almost no political support. Both the Conservatives and the Democratic Unionists see it as a danger to the Union and a move to Irish unity. The Irish Government, in spite of some suspicions in the North, has no intention of using Brexit to lever Irish unification and there is little interest in that among the Irish public. It is keen to retain access to the market in Great Britain, not to put an economic border up. Business and farmers on both sides of the border and both sides of the Irish sea are equally opposed to economic borders and see no merit in just moving the border to another place.
The Labour Party has claimed that its proposal to keep the UK in the customs union will resolve the Irish border dilemma by meeting the first criterion of the December agreement. Certainly, it will avoid tariffs at the border and difficult questions about rules of origin but, without regulatory alignment, it will not eliminate the border. There would still be controls and inspections, notably in the sensitive sector of agriculture.
Some figures on the right of the Conservative Party are now saying that the Good Friday Agreement has served its purpose and should not be an obstacle to Brexit. Other actors in London cannot believe that Brexit should depend on what they see as a marginal issue. For Ireland, it is a vital matter and, by behaving like a loyal European player, the Irish have ensured that it matters for the EU 27 as a whole.