Blog Featured

Ironically, it will take a ‘no deal’ to solve the Irish border issue

Written by Anna Bailey

Only when the Northern Irish border is freed from the stifling political constraints of the UK-EU withdrawal negotiations can work on practical solutions begin…

Only when the Northern Irish border is freed from the stifling political constraints of the UK-EU withdrawal negotiations can work on practical solutions begin. We already know what will happen to the border in the event of ‘no deal’ – nothing. Contrary to popular myth, ‘no deal’ offers the best way forward for developing practical, non-divisive solutions for the unique border situation, writes political scientist Dr Anna Bailey.

In 1066 and All That, Sellar and Yeatman quipped that whenever Mr Gladstone tried to work out the answer to the Irish Question, “the Irish secretly changed the question.”

No doubt this would raise a wry smile from Lars Karlsson, former director of the World Customs Organization. Karlsson was commissioned by the EU Parliament to author a report on if and how an invisible customs border could be delivered on the island of Ireland. Taoiseach Enda Kenny had made clear that neither he nor Downing Street would countenance a return to a hard border, “and by that I mean customs posts every mile along the road”. Karlsson’s report, Smart Border 2.0, duly detailed how existing technology and international best practice could be harnessed to avoid the need for a hard border.

But the report went down like a lead balloon in Brussels and Dublin. Why? Unbeknown to Karlsson, the EU and Irish were now working with a different definition of ‘hard border’: one in which any checks or controls in themselves constituted a ‘hard border’, no matter how far from the border they were conducted. That pretty much meant that any arrangement other than Northern Ireland remaining in the EU’s single market and customs union would constitute a ‘hard border’.

1066 and All That turned from historical satire into prophecy. The Irish in cahoots with the EU had changed the question.

What is today’s Irish Question? Let us firstly be clear firstly what it doesn’t include: people. The Common Travel Area between the UK and Ireland dates from a full fifty years before the countries’ entry into the then-EEC, and guarantees freedom of movement for British and Irish citizens over the whole territory of the UK and Ireland, including full rights to work and vote. These arrangements date from long before the EU even existed, and are guaranteed to continue.

The issue is one of trade – specifically, goods. From the EU’s perspective, the concern is to preserve the integrity of its single market and customs union. Yet in the sensitive Northern Irish context, 100% border compliance is something of a pipe dream, as existing practice demonstrates. Smuggling across the Irish border already takes place, since Ireland and the UK have different rates of VAT and excise duty. Anti-smuggling measures are conducted, but in a way that is sensitive to the border context. In other words, the tail does not wag the dog. Policy on tax and excise comes first, then enforcement is developed appropriately.

So, what will happen with the border in the event of ‘no deal’? This has been presented as a great unknown, an uncertainty so acute that it throws the past two decades of peace in Northern Ireland into doubt. Fortunately, examining the overriding political incentives of all the actors involved gives us a pretty good idea of what will happen in practice. And the outcome can be summarised in one word: nothing.

There will not be a hard border in the sense of new infrastructure at the border. We can say this with absolute certainty. The UK government has repeatedly said it will not install border infrastructure. The Irish government has also repeatedly said it will not install border infrastructure.

Is there any reason to doubt these statements? No – quite the opposite, in fact. Both countries – and, importantly, the EU too – have an overwhelming geopolitical incentive to refrain from doing anything that could be perceived as hardening the border. It is hard to imagine a worse form of reputational damage than being the side to risk ‘bringing violence back to Northern Ireland.’ Taking such a risk, even though it is in truth remote, is unthinkable. Thus, in the event of ‘no deal’, on 30 March 2019 the Northern Ireland border will operate exactly as it did on 29 March 2019.

But what about both sides’ legal commitments? It is not only the integrity of the EU’s precious single market that is at stake, but compliance with WTO rules, which preclude the UK and the EU from granting each other de facto trading privileges, even if those privileges only applied to one tiny province. Failure to enforce goods checks and tariffs at the Northern Ireland border while continuing to do so at other borders would constitute a breach of the WTO’s ‘most favoured nation’ rule, which prevents such special treatment. So, what will happen on 30 March 2019, when the UK and Ireland are in breach of WTO rules? Again, absolutely nothing.

Contrary to popular myth, the WTO does not have clipboard-carrying inspectors checking borders for possible infractions of WTO rules. In fact, the WTO does not have inspectors at all. The WTO itself does not take any action against its members for breaches of its rules. It is a member-driven organisation: a complaint against one country can only be brought by another member country.

At this point, realpolitik once again trumps formal rules. Imagine if a third country brought a complaint to the WTO that it was being discriminated against due to the UK and Ireland not imposing checks at the Northern Ireland border. This would be international relations dynamite. Given the internationally-recognised delicacy of the border issue, such a move would be considered an act of extreme diplomatic aggression against the UK, Ireland and EU, on a par with imposing sanctions on a hostile regime. Again, which country is prepared to risk the condemnation of the international community as the provocateur prepared to risk ‘bringing violence back to Northern Ireland’?

Even in the unlikely event that another WTO member – Russia, say – did decide on such a provocation, the UK, Ireland and the EU would most likely cite in their defence Article XXI of the GATT. This states that, ‘Nothing in this Agreement shall be construed… to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests… taken in time of war or other emergency in international relations.’ In other words, WTO rules can be waived if a security risk is present. Given that the UK, Ireland and the EU all maintain that infrastructure on the Irish border would create such a security risk, Article XXI would seem to fully exempt them from constructing such infrastructure.

None of this is to say that the UK and Ireland will not take any action whatsoever in respect of the border in the event of ‘no deal’. There will be expectations from fellow WTO members that all sides will make ‘best efforts’ to abide by its rules – to the extent that security concerns permit. And of course, the EU will still be concerned with the integrity of its single market and customs union. If and when ‘no deal’ happens, Ireland and the EU will have no alternative but to work with the UK on the available practical solutions.

Contrary to what is commonly asserted, it is not the lack of technical solutions that is the problem. The main hindrance to solving the border issue to date has been the fact that it has become ensnared in the politically-charged withdrawal negotiations. This was never going to be conducive to a solution. UK and Irish officials have been prevented from working together on potential solutions since this could be seen as constituting ‘negotiation’, and the EU will only allow its own officials to negotiate. Most crucially, once the Irish government made the political decision to unconditionally support the EU’s negotiating position, Irish officials were prohibited from developing technical solutions, lest they undermine a ‘political solution’. In other words, both the EU and Irish feared that the availability of technical solutions could strengthen the UK’s negotiating hand. Ironically, making the border issue part of the withdrawal negotiations meant that it was in Ireland’s interests to repress technical solutions – which is exactly what happened.

Once the border is freed from the stifling political constraints of the withdrawal negotiations, practical compromises will be possible. The UK has already proposed a customs waiver for small and medium-sized businesses, which account for around 80% of cross-border trade and for the most part trade only in local markets. There is also the potential for the EU to invoke the “frontier traffic exception” in Article XXIV(3) of the GATT, to declare the whole territory of Northern Ireland as a border region to the EU customs union. In strict legal terms, such measures would represent a chink (albeit a microscopic one in terms of value) in the wall of the EU’s Common External Tariff. But if the EU is serious about its commitment to no hard border in Ireland, it should be prepared to make such small compromises, just as the UK and Irish authorities have done since 1998. To use its own favourite phrase, the EU cannot ‘have its cake and eat it.’

For transport of plants and animals, given the obvious reality that diseases are incapable of transmitting themselves across huge bodies of water, a single sanitary and phytosanitary zone on the island of Ireland would make sense. Unlike the imposition of foreign regulatory and customs regimes, this would not have any constitutional implications. The EU already has a ‘common veterinary space’ with Switzerland, so there is no reason why it should not consent to one with Northern Ireland.

There is always a solution if the political will is there – the Good Friday Agreement itself is testament to that. The Good Friday Agreement also teaches us that it is only possible to reach solutions by de-dramatising the negotiating context and ensuring that all affected communities get to play their part – in other words, the very opposite of what is possible in the context of the UK-EU withdrawal negotiations. The Withdrawal Agreement’s backstop, with its indefinite nature and potential to undermine the Union, provides the very opposite of certainty for Northern Ireland. Only when the border issues are removed from the highly politicised context of the Brexit negotiations can the political posturing end and work on practical solutions begin. At present, only a ‘no deal’ outcome offers such a hope.

About the author

Anna Bailey