Why is Ireland the rock on which the Brexit talks could founder?

Why is Ireland the rock on which the Brexit talks could founder?

“First, we reconfirmed that there will be no Withdrawal Agreement without a solid, operational and legally binding Irish backstop. And we continue to fully support Michel Barnier in his efforts to find such a model.” – Donald Tusk speaking after the Salzburg European Council meeting, 20th September 2018.

In the last fortnight, the row over the Irish border – until then obscure, abstruse, the preserve of nerds and experts – burst with a radiant clarity into the consciousness of the British public. As Theresa May said in her post-Salzburg statement in Downing Street, what the EU was seeking was a Northern Ireland that “would effectively remain in the Customs Union and parts of the Single Market, permanently separated economically from the rest of the UK by a border down the Irish Sea.” It may be true that few in Great Britain spend much time thinking about Northern Ireland. But they spent far less time thinking about the Falkland Islands until some pretty brutish foreigners made a grab for them, and a similar sentiment of “Hands Off!” lies not far below the skin of most Brits when it comes to the integrity of the national territory.

So is the disagreement between the UK and the EU over the Irish border a narrow technical question, with consequences largely confined to farmers inconvenienced by an international border across their land? Or is it a much bigger thing that engages not only constitutional principle but deeply held national sentiment? While the EU negotiating team would prefer to see it as the former (and indeed believes it can “de-dramatise” it into a mere technical trifle), it is increasingly clear as the end-game approaches that underneath the dispute are powerful national interests and self-visions that are rarely fully discussed.

So what do the players really think about the dispute?

Let’s start with the Irish Republic. It’s hard for visitors to Ireland today to remember that the modern, vibrant, 21st century country they see has a very different history to our own, with raw nerve endings we rarely encounter. Less than a century ago, Irishmen were killing each other, in part over the question of whether it was right to sacrifice the Six Counties in order to secure their new Free State. The issue continued to inform the politics of the state for decades to come, but in the Good Friday Agreement, the Republic made a totemic change in agreeing to amend Articles 2 and 3 of its 1937 Constitution so as to remove the explicit irredentist claim that the whole of the island of Ireland was subject to its sway. It was a futile claim, offensive to Unionists in the North and impossible for the Republic to vindicate in practice, but it had its role as a sort of foundation myth closely tied to the Republic’s vision of itself.

But in amending Articles 2 and 3, the Republic did not – and in terms of domestic politics and Nationalist world-view could not – give up its aspiration to govern the entire island one day. Rather it switched from a sterile claim to a more amicable long-term approach based on increasing integration and the ending of terrorist activity. Common membership of the EU, with its abolition of international trade barriers and its European “citizenship”, was a framework, external to the Good Friday Agreement, within which an eventual coming together could be envisaged. The Good Friday Agreement provides that if the people of Northern Ireland vote in a referendum to become part of the Republic (and if a referendum within the Republic endorses that), then that is what will happen. As the Irish Prime Minster at the time made clear, the British government has no say in the matter.

Now the fact is that nobody in the Republic expects this to happen in the foreseeable future and, outside perhaps extreme Nationalist circles, very few care. The Good Friday Agreement allowed the Irish to “park” the toxic border issue and put behind them what had always been a neuralgic topic. The fact that a united Ireland could happen one day, by consent, was a major step in allowing them to do this. And flowing from the Good Friday Agreement, there has been visible social change: populations that rarely crossed the border now do so in large numbers – to work, to shop, to play – as a significant expression of the increasing integration of economic and social life on the island of Ireland. For Nationalist sentiment today, “peace” in Ireland is not merely the absence of terrorist war: it is a package that includes increasing integration against the backdrop of a legitimate aspiration and a credible, if slow, path to all-Ireland unity by peaceful, consensual means that allows the “border” to be taken out of politics.

The Republic (and Nationalists in the North) fear that Brexit is somehow cheating them of that achievement and putting the border back into politics. The fact is that Brexit is compatible in practically every respect with the letter of the Good Friday Agreement, but it removes the external framework of common EU membership that has shaped developments over the last twenty years and made eventual unity plausible. So, while it is true that an international trade border (in addition to the existing fiscal border) will cause a degree of disruption to trade, that is largely fluff: the real problem is much more profound.

The EU’s position is essentially that of the Republic. Even the most tin-eared Brussels-based diplomat must know that rushing into the quagmire of Irish communal politics is never a course to be lightly recommended, but the stance the EU has consistently taken is basically to ensure that Brexit does not void the external framework of EU membership that in Irish eyes underlies the peace process agreed in 1998. In technical terms, the EU claims this means that Northern Ireland must functionally stay in the Customs Union and most elements of the Single Market. As a  consequence, the trade border between the EU and the UK must lie in the Irish Sea. All their current effort to “de-dramatise” that demand is directed only at persuading us that we’ll hardly notice this new border.

But here we run into the view of the United Kingdom (and of Unionists in the North). While the British Government’s opposition to the EU’s proposal is well established, it has been extremely difficult until Mrs May spoke after Salzburg to find a statement to explain why.

First, those who think the opposition arises from the Government’s dependence on the Democratic Unionist Party for a working Commons majority are wrong. This would be a huge problem even if the Government had the sort of majority that seemed possible when Mrs May called the 2017 General Election.

Rather, the difficulty exists at two much more compelling levels. The first is constitutional and immediate and impinges primarily on Northern Ireland’s place in the UK. The second is practical and contingent and has profound implications for the UK as a whole.

At the constitutional level, the retention of Northern Ireland in the Single Market and Customs Union would create a rent in the fabric of the United Kingdom that no independent country would agree to at the request of an external power, except under humiliating duress. It would reduce British sovereignty in Northern Ireland to a hollow title, as large swathes of local laws (those not made under devolved powers) came to be made by the EU, affecting the broad array of economic, social and environmental matters that the European super-state currently claims as its own, as well as any new powers it obtained in relation to the Single Market and allied matters. The role of the British government would be reduced to little more than the continued provision of the substantial fiscal transfers the Treasury sends to Northern Ireland. As Mrs May realises, no British government could agree to a package like that and survive.

But, even if it could, it would be unconscionable in the 21st century for that to come about without the explicit lawful agreement of Northern Ireland; and even more so if the upshot was that many of the laws under which Northern Ireland was governed were made with no representation in the European Parliament or in the European Council. There is a danger that the EU is perceived as treating Northern Ireland in much the same way as the Austro-Hungarian Empire and the Ottoman Empire traded Balkan provinces in the nineteenth century. It is astounding that Brussels either seems incapable of seeing this or, if it does, finds it an acceptable way of proceeding.

The argument that, because Northern Ireland voted to stay in the EU, its people have already pre-validated Mr Barnier’s proposal is bogus. Northern Ireland voted to stay in the EU as part of the UK. It voted not to change its current status. What Mr Barnier proposes is a massive change in its current status. The issue in hand, despite Mr Barnier’s deft efforts to lull us into contemplation of technological ways of making an Irish Sea border painless, is not about the border checks at all, but about the entire question of Northern Ireland’s status and its fragile democracy.

The more practical and contingent reason for objecting to the EU’s plan is – or should be – even more compelling. But it requires a moment’s reflection on the sequencing of the negotiations, sequencing the UK foolishly and lazily accepted without murmur after David Davis’ attempts to amend them were (for reasons yet to be disclosed) sat on in the summer of 2017.

It needs to be borne in mind that the Withdrawal Agreement is to be signed and ratified as an internationally binding treaty before trade talks begin (all the UK is to get for now on future trade is a non-binding declaration.) The Withdrawal Agreement is to include (amongst other things) the Irish “backstop”, which, if the EU has its way, will be a legally enforceable commitment to leave Northern Ireland in the Single Market and the Customs Union and to erect a trade border in the Irish Sea. But, though legally enforceable, the EU does not intend necessarily to enforce it, not if the same objectives can be met by other agreed means. In Mrs May’s view, the Chequers White Paper does that trick. By keeping the whole of the UK partly in the Single Market, Mrs May hopes to dispense with the need both for a goods border on the island of Ireland and for any sort of border between Great Britain and Northern Ireland.

The EU hates the Chequers plan for a number of reasons, but let’s say they accepted it or something very like it. Would they then, as Mrs May hopes, give up their demand for an Irish backstop in the Withdrawal Agreement? The answer must be no, not as things stand: Donald Tusk resoundingly rejected that in Salzburg: “We reconfirmed that there will be no Withdrawal Agreement without a solid, operational and legally binding Irish backstop.” He did so because EU leaders are perfectly aware, even before Michael Gove let the cat out of the bag, that an independent UK could decide to move away from Chequers in practice, either incrementally or dramatically, as time goes by, forcing them to consider erecting a border on the island of Ireland to “defend” their Single Market. They want to forestall that with an insurance policy and that is what the “backstop” is. Even if it were not immediately invoked, because a better means had been found of achieving the same goals, it would lurk for ever like a virus in the marrow, ready to be activated if the EU required.

This has implications for British trade policy, not to mention sovereignty, for decades to come. It would mean that, if we wanted to change from Chequers (or any alternative we agreed), we could only achieve that by abandoning Northern Ireland and leaving it behind in the Single Market and Customs Union. That condition alone would make it politically almost impossible for a future British Prime Minster to stand up in the House of Commons and advocate breaking our alignment with the Single Market, whether in the guise of a common rule-book or some other device. Indeed, the trigger could be much smaller: so slavish and detailed is the adherence proposed in the White Paper to the common rule-book, EU VAT law and economic and social legislation that even a decision to abolish the Tampon Tax could be enough to activate the backstop. (For those who have forgotten, VAT – at 5% – is still being charged on female sanitary products, despite a vote in the House of Commons to abolish it.)

No Brexit supporter could accept an outcome that left the UK incapable of a proper independence in the future without sacrificing effective control of part of its own territory. But it is equally hard to see why any Northern Ireland Unionist could accept a situation in which the province became a sacrifice Britain needed to make in order to break free. Unionist sympathy on the mainland is sound but not strong. Can the DUP really be sure that, if forced to choose at some future date between the benefits of global free trade and retaining Northern Ireland, sentiment in Britain might not see merit in letting the province go?

The impasse therefore seems complete and deeply rooted in powerful sentiment and self-vision on both sides. And yet the law is entirely on the UK’s side. In international law and under the EU’s own treaties, the UK as a whole has given notice to quit the EU. It was not a partial or conditional notice and the EU has no legal standing at all to demand that one part of the departing state be treated differently from another. It is purely a strong-arm tactic in negotiation: give us what we want in Ireland or there’ll be no talks on trade.

Of course, the EU is perfectly aware that the price of taking that stand could be No Deal and the sacrifice of formal agreement on its own citizens’ rights and a large amount of money. Despite the ravings of crazed Remainers (many of them sadly on the benches behind her, some even on her front bench) who will seek to undermine her by saying that No Deal is impossible, Mrs May could well be called on to show her mettle on this point quite soon and make good on her pledge that, with that Irish backstop or anything like it, the Withdrawal Agreement can never be signed.

Both sides stand on the brink waiting for the other to flinch. This is a hopeless and dangerous position. Despite Mr Tusk’s words, both need to step back and accept that the future of peace in Ireland is not a fit subject matter for the sort of legalistic straitjacket of which these talks consist. Rather, this is a communal issue that in almost any other circumstances would be recognised as needing patient diplomacy, external mediation, dialogue and confidence-building measures.

The UK and the EU should drop the dangerous “backstop” from the Withdrawal Agreement and commit to using best endeavours, outside the Article 50 process, to achieve the minimal border infrastructure in Ireland consistent with the UK’s new status as a “third country”, using as far as possible technological solutions, electronic filing and remote enforcement, very much as Mr Barnier now agrees would work on an Irish sea border, were one to be introduced as he wishes.

But this is not all about gizmos for monitoring the border. The UK must also be mindful of the legitimate anxieties of the Republic and Irish Nationalists more generally that the progress of the last twenty years is at risk and ensure that the elements of the peace process agreed in Belfast in 1998 are buttressed with new measures, and not undermined, even if a minimally visible trade border is introduced between the Six Counties and the Republic. Economically at least, the Republic has a profound interest in finding a way out of the impasse. This is the time for statesmanship all round.

Unless there is a shift, and irrespective of the “future relationship”, there will likely be no Withdrawal Agreement and therefore no transition period and no trade talks. Instead, to coin a notable phrase from David Dimbleby, on 30th March next year, “We’re out.”