By early 2018 the question of the Irish border had become the single most important issue in the Brexit negotiations. For those who wish to keep the UK within the Single Market and the Customs Union, exploiting the Irish border issue is their best bet. We have seen this already in statements made by political figures on both sides of the political divide. Tory grandee Lord Patten has described Brexit as an incendiary move that threatens the fragile peace in Northern Ireland.[1] Keir Starmer, the Labour Party’s shadow secretary of state for Brexit, has said that Labour would unconditionally support remaining within the Customs Union if there is any suggestion of a return to violence in Northern Ireland.[2]

 

For many observers, the Irish border issue encapsulates what one pundit has called Theresa May’s “Brexit trilemma”.[3] The prime minister is promising three things, only two of which are doable at the same time. These are: a promise to leave the Single Market and the Customs Union; a promise of no border between Northern Ireland and the rest of the United Kingdom; and no return of a border between Northern Ireland and the Republic of Ireland.

 

Fudging the border leads to “no Brexit” or “no deal”

 

This trilemma does indeed exist. So far, the government has tried to resolve it in two ways. First, it has accepted the idea of a “backstop” which would apply during the period between the UK’s official exit from the EU in March 2019 and its conclusion of a new economic relationship with the EU. This backstop is intended to guarantee that no border of any kind is introduced on the island of Ireland by partially keeping the UK within the Customs Union and the Single Market with respect to movement of goods and some regulatory alignment.

 

Secondly, the government has urged its civil service to work on technical solutions to the trilemma. The goal is to permit the Irish border to be – at the same time – a UK/EU border and to have no physical infrastructure or controls in place to control that border. The prime minister’s preference has been to avoid the need for any border controls through a “customs partnership” that allows the UK to act in a double capacity: as overseer of its own EU/UK border and as a collector of revenue for the EU with respect to goods transiting through the UK on their way to an EU destination. Figures such as Boris Johnson and Jacob Rees-Mogg prefer a “Maximum Facilitation” arrangement, which would see the return of a more conventional border in theory but one where technology and “trusted trader” arrangements would absolve the need of any physical presence on the border.[4]

 

There are technical problems with both of these options. Neither are likely to succeed in entirely avoiding a land border in Ireland, though the kind of border they would require has nothing of the imposing infrastructure and control that one imagines with the term “hard” border. Free movement of people is guaranteed by the pre-EU Common Travel Area between Britain and Ireland in any case, and most customs and excise work nowadays takes place away from borders. Indeed, the existing border in Ireland already has some practical economic reality, since taxes and fuel duties vary between Britain and the Republic. Nevertheless, some cameras and some capacity to make spot checks will probably have to be added at the border, however inventive the technical solutions available.

 

In addition, last week the EU’s negotiator, Michel Barnier, “clarified” the EU position on the backstop in a way that ratcheted up the uncertainty and risk surrounding the Brexit negotiations. Barnier denied that it could apply to the UK as a whole, saying it was an exceptional offer made only to Northern Ireland. Were it to apply to the UK, it would have to take the form of a complete application of all EU rules, from the Customs Union through to every aspect of the Single Market based on the “indivisible” four freedoms of movement of goods, services, capital and labour.

 

Whether or not this represents a change in the EU’s position, the practical effect of Barnier’s offer is to divide the UK’s internal market and introduce a border in the Irish Sea. This is unacceptable to the Democratic Unionist Party (DUP), whose members of parliament are currently propping up the Conservative minority government. It is also not what Remain supporters in Northern Ireland voted for. If they had been asked to choose between unifying with Ireland or voting for Brexit, many say they would have voted Brexit. As the government depends on the DUP for its survival, accepting Barnier’s offer would be political suicide.

 

The only options remaining are to accept that the UK will remain in the Single Market and the Customs Union until a new economic relationship is finalised between the UK and the EU. Indeed, this may well be the intention of Barnier’s “clarification”. If so, the EU will have every reason to draw out these negotiations for as long as possible in the hope that the UK eventually gives up trying and settles for permanent “rule-taker” status or even asks to be readmitted to the EU. Any final deal will also have to be ratified by all EU member states, which could derail the agreement, as almost occurred with the EU-Canada free trade deal.[5] This option means no border between the North and the Republic, but it also means no Brexit.

 

The only alternatives are a “no deal” exit from the EU in March 2019 or a change in the EU’s position. The latter is unlikely, which makes “no deal” a very real prospect if the UK government remains committed to implementing Brexit.

 

Drop the backstop

 

The fundamental problem here, which makes the border issue appear so intractable, is sovereignty – more specifically, an unwillingness on the part of the UK to exercise its sovereignty in Northern Ireland. Since the UK has accepted in principle the idea of the “backstop”, there is no incentive whatsoever for the EU to negotiate further with the UK. The backstop, after all, is as close to the status quo as the EU can get. This makes any technically innovative solutions very difficult to introduce, as they rely on cooperation on the EU side as well.

 

The UK government should therefore take the backstop off the table. Barnier’s recent interpretation of it as a Northern Ireland-only offer makes this easy to do, since this was never what the British government intended. To remove the backstop, however, means doing precisely what the UK government has refused to do ever since the negotiations with the EU over Brexit began: to assert its sovereignty in Northern Ireland.

 

The willingness to exercise British sovereignty is something that the current generation of UK officials and politicians have little experience of. Decades of avoiding the exercise of sovereignty at the national level in favour of making domestic policy through international negotiations means that most officials are looking for any reason to minimise the change that Brexit may bring. However, the general problem of Britain’s sovereignty is particularly sharply focused in Northern Ireland.

 

Britain’s sovereignty in Ireland was contested throughout the twentieth century. Only following the 1998 Good Friday Agreement did the Irish Republic drop its constitutional claim on British territory in Northern Ireland. Sinn Fein’s acceptance of the Agreement simultaneously marginalised support for making war against British rule in the North. The price Britain paid for ending the violence was that another state – the Republic of Ireland – was given a say in the affairs of one part of British territory. The symbols of that other state were officially recognized within the territory and Britain recognized that its rule in Northern Ireland depended upon continuing consent from a majority of the people of that territory. The border itself was not mentioned in the Good Friday Agreement, but one result of the Agreement has been that the border has largely disappeared as a practical reality. The prospect of any sort of reassertion of British sovereignty over Northern Ireland in the form of a visible border is therefore greeted with apprehension.

 

The armed wing of Remain

 

The chief anxiety is that Northern nationalists will react to any re-imposition of a physical border with violence. This particular example of shroud-waving is perhaps the most egregious example of the Remain elite’s “Project Fear”. The evidence for a return to violence in Ireland is thin. Sinn Fein has already ruled it out. The marginal “dissident” republican groups, opposed to the Good Friday Agreement, might react violently. But they have in any case mounted episodic attacks on various targets throughout the past 20 years. The question is whether Brexit will result in their violence attracting wider support among Northern nationalists, as the Provisional IRA did in the very different political circumstances that prevailed before the 1990s. There seems little reason to think that it will, especially in the event of a new trading regime that would minimize any physical infrastructure required at the border. If the physical border remains largely a question of cameras and intelligence-led checks there is little reason for it to antagonise Northern nationalists. Veteran republicans from the border areas have suggested that there is no taste locally for a return to violence.[6]

 

What is most striking about the discussion of a return to violence in Northern Ireland is not the potency of the actual threat but the willingness of politicians to invoke that threat as a reason for avoiding any change. The potential threat of violence by tiny organisations, which represent a very small part of the Nationalist population in Northern Ireland, is being exploited to frustrate a decision made by the majority of the UK population as a whole. Behind the intransigence of Michel Barnier and Leo Varadkar we find potential threats from diehard republican grouplets, effectively recruited as the armed wing of the European Union. In London, we find a British political class that has been willing to send its armies on bloody adventures in Iraq and Afghanistan, but is unwilling to face down even the slightest hint of violence closer to home to ensure that a democratic decision over the constitutional future of the UK can be implemented.

 

The simple truth is that there are technical solutions to managing trade over borders between states that are EU members and states that are not. They are used every day in countries like Switzerland.[7] The problem on the Irish border is not that these technologies cannot work; it is that the political will to accept their deployment does not exist. The UK government currently lacks the will to reassert its sovereignty in Northern Ireland. This allows the Dublin government, British Remainers, and the EU institutions to weaponise Northern Ireland, insisting that no progress can be made in the Brexit talks until the UK government accedes to a deal that effectively keeps all or part of its territory within EU structures. The only way to cut this Gordian knot is for the British government to reassert its right to manage the border as it sees fit.

 

References

[1] “Lord Patten says Brexit policy ‘clueless and delinquent’”, BBC News, 2 May 2018.

[2] “Sir Keir Starmer makes NI warning over Brexit deal”, BBC News, 29 January 2018.

[3] See DCU Brexit Institute Launch - Panel Discussion, 25 January 2018.

[4] For a favourable discussion of “MaxFac”, see Graham Gudgin and Ray Bassett, “Getting Over

the Line – Solutions to the Irish border: Why the UK (including Northern Ireland) can leave the Customs Union, avoid a hard border – and preserve the Good Friday agreement”, Policy Exchange, 4 May 2018.

[5] Amandine Crespy, “CETA has laid bare the need to reconfigure sovereignty in the EU”, LSE Brexit Blog, 26 October 2016.

[6] “The ex-IRA men: ‘United Ireland? It’s all guff’”, Irish Times, 8 April 2017.

[7] See “Where Next On Brexit? Lessons From the Swiss Model”, Policy Exchange, 19 April 2018.

​

 

About the authors

 

Peter Ramsay is Professor of Law at the London School of Economics. Christopher Bickerton is Reader in Modern European Politics at the University of Cambridge. They thank Pauline Hadaway for her input.

​

This work represents the views of the authors only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.