Nothing has been solved – who will lose out?
The Irish Border is an over-constrained problem: all available options have been ruled out by the promises made. The Phase 1 agreement allows talks to continue but does not resolve the inherent contradictions. At some point it will be clear who loses. Michael Romberg works through the issues of the insoluble problem that Brexit has created.
The Leavers Lose Out?
Paragraph 49 of the joint EU/UK report makes clear that if a hard border cannot be avoided by other means, “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.” While that fallback does not require alignment on everything, the mapping of the Good Friday agreement showed how extensive the co-operation across the Irish border is, with at least 142 areas affected.
The aim is to remove the threat of a hard border by the future relationship. The UK thinks that means Canada++++ - some sort of trade agreement that gives us much more access than Canada has without any of the obligations that Norway has. Boris calls it “having your cake and eating it”. Keir Starmer criticised the Government for failing to try to obtain it. However, Michael Barnier has made clear that that is not an available option: the choice is Canada, which even Theresa May thinks would be damaging, or EEA.
The Commission in its little-discussed report to the Council on the negotiators’ joint report makes clear its scepticism about the British Government’s aims. The Commission refers to the British stated aim of avoiding a hard border and says: “This intention seems hard to reconcile with the United Kingdom’s communicated decision to leave the internal market and the Customs Union.” (Page 9).
So one solution is that the UK stays in the Single Market and the Customs Union – a closer relationship even than the Norway/ EEA model – with free movement, ECJ, budget contributions and no independent trade deals. Leavers would not be happy.
The French will not lose out
Michael Gove and Chris Grayling have indicated that we could obtain “regulatory alignment” without having to follow EU rules.
It is hard to see why the EU would agree to a soft border without almost 100% alignment with the Single Market and Customs Union. Otherwise they would be leaving themselves wide open to smuggling of forbidden, sub-standard, or otherwise non-compliant goods. The French are said to be particularly worried about this aspect of the Irish Border question.
The Commission report goes on to say about the fallback position “In this context, implementation and oversight mechanisms for the specific arrangements to be found will be established to safeguard the integrity of the internal market.” (Page 9) We know how the EU will approach that discussion: ECJ oversight, all EU rules apply.
The EU27 will surely not let the integrity of the Single Market and Customs Union be compromised.
The DUP Loses Out?
Paragraph 49 of the joint report provides the basis for betraying the DUP. If UK-wide agreements cannot solve the problem, then “… the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland.” Paragraph 50 sets out the mechanics and promises unfettered access for Northern Irish goods to the Great Britain market – but is silent about the flow of goods in the opposite direction.
So the UK could allow Northern Ireland to stay in the EU Single Market and Customs Union even if Great Britain leaves. There would then be a semi-permeable barrier between Northern Ireland and Great Britain. Great Britain would allow unfettered access from Northern Ireland, but the hard EU frontier would divide the UK for goods flowing in the opposite direction.
That solution is surely unacceptable to the DUP and to British Unionists (although perhaps not anathema to the Northern Irish public). The Scots and London have already said they would want it for them if it was on the table. It is not clear how it would affect UK trade agreements or our position under “Most favoured nation” rules at the WTO, but we would have some explaining to do there.
The Irish Lose Out?
The statement by the Taoiseach Leo Varadkar is confident that he has achieved his objectives and that the deal will stick in some form. But maybe it will be the hard Brexiters who win and the Irish who lose.
There could be a hard border after all. The term has not been defined. So one possibility is that there will be a hard Brexit at the UK level so there will be border checks, but they will be managed well. That was the Government’s intention in its August 2017 position paper on the Irish border, which promised unspecified but wonderful technical fixes.
The Problem is Insoluble
There is no solution to the problem of Brexit and the Irish Border. All options have been ruled out (the Irish Republic is not going to leave the EU and join in a Customs and single market union with the UK). The Prime Minister’s Commitments to Northern Ireland do not allow for a workable solution. The only question is: who loses most?
Remain is of course the only good option for the Irish Border. There is far more at stake than trade. Dealing with the collision of national aspirations is exactly the sort of problem that the EU – the great European peace project - was invented to help resolve.
It is a great shame that in spite of Northern Ireland’s 56:44 Remain vote the DUP with 10 MPs effectively represents the province in Parliament. There is one independent MP from Northern Ireland. But Sinn Fein attaches more importance to its policy of abstentionism than to stopping Brexit by having its 7 MPs turn up and vote against Brexit by calling for a referendum on the terms.