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9 January 2019

Northern Ireland is the Ultima Thule of the British Isles. A Province of the United Kingdom (UK) , outside the Pale and off the beaten track,  largely agricultural with an industrial and business hub in its main city, Belfast, it has a population of 1.9 million compared with 66.5 million for the UK as a whole (England, Scotland, Wales and Northern Ireland). 

Nonetheless, the Province has been playing a crucial role in the current crisis that has erupted following the decision of the British electorate – in a kingdom-wide referendum on 23 June 2016 – to extricate itself from the clutches of the European Union (EU) after 45 years of turbulent association as one of its 28 member states. 

Britain is commonly seen throughout Europe as the eyes and ears of the United States – a Trojan mule at the beck and call of its transpontine master in the EU capital of Brussels.

Former Foreign Secretary Boris Johnson has pointed out that, in the Brexit (“Britain’s Exit” from the EU) negotiations between the UK and the EU, Northern Ireland has been the tail wagging the British bulldog.  

Why so?

There are two reasons. 

The first is that the governing Tory (reactionary) Party is 9 seats short of a majority in the House of Commons (the principal organ of the UK Parliament). To make up this shortfall and so prop up her government, UK Prime Minister Theresa May has had to solicit the support of Northern Ireland’s Democratic Unionist Party (DUP) in Parliament. In exchange, she has had to concede substantial financial subsidies (in effect, bribes) to Northern Ireland and agree that any Brexit arrangement clinched with the EU would apply in all respects to Northern Ireland. 

The second reason is that Southern Ireland (the Republic of Ireland), an independent member member state of the EU, has insisted that there be no overtly demarcated frontier impeding frictionless trade between Southern and Northern Ireland, customs posts marking the border having been abolished as a result of the“Good Friday Agreement” (signed on Good Friday 10 April 1998) between Southern Ireland and the UK. Customs posts at the border in the past had been the target of attacks by Irish patriots seeking the reunification of Ireland. 

However, despite the absence of customs posts, the frontier between Southern and Northern Ireland still exists. Northern Ireland is an integral part of the United Kingdom – a fact which was acknowledged by Southern Ireland in the 1998 Good Friday Agreement between Britain and the Republic. Therefore, if the UK leaves the EU, Northern Ireland must logically leave as well, while the independent country of Southern Ireland will remain remain an independent state within the EU. 

However, none of the parties involved – neither the British Government, the Southern Irish Government, the European Union or  the Northern Irish Democratic Unionist Party (on whose support in the House of Commons the minority UK Government depends) – want the reintroduction of customs posts. 

This is partly because they fear – with or without good reason – that this may result in a resurgence of  violent attacks by Irish irredentists provoked by the reintroduction of border check-points. It is also because they are all quite happy with the frictionless trade established between Southern and Northern Ireland as a result of the Good Friday Agreement.

However, while not wishing to reintroduce overt border controls, the European Union is absolutely committed to making a clear distinction between the territory of EU member states and the territory of states which do not belong to the EU. 

EU Member States are subject to a common customs tariff for goods entering or leaving the EU across its external borders –  that is to say, the borders of EU member states that do not abut the frontiers (internal borders) of other EU member states. They are also obliged to accept the free movement of people, goods, capital and services within the EU as well as a raft of environment and social provisions. All these requirements are subject to interpretation by the European Court of  Justice in Luxembourg. 

Obviously,  countries outside the EU are not subject to the same obligations. Hence the need, so far as the EU is concerned, for a clearly defined border between EU and non-EU states. 

This brings us back to the Northern Ireland problem. 

If the UK leaves the EU, then Northern Ireland will leave with it. 

Therefore, in reality there is bound to be a border between Southern Ireland (part of the EU) and its northern neighbour Northern Ireland (which will have left the EU).

The Withdrawal Agreement concluded between the EU and the UK resorts to smoke and mirrors to obfuscate, at least temporarily, this border problem.

The agreement has magicked, out of thin air, a “transitional” or “implementation” period between Britain’s leaving the EU on 29 March 2019 and 31 December 2020. During this period the UK has undertaken to respect the EU’s common external customs tariff and its four freedoms, while at the same time accepting the jurisdiction of the European Court of Justice (ECJ). 

Problem solved! Britain will be out of the EU and yet still, to all intents and purposes, inside it. Whizzo! Well done,chaps! 

This is what we called BINO (Brexit In Name Only) in our last post.  

The ultimate aim is to have in place a comprehensive long-term trade agreement between the EU and the UK by the end of the transitional period (which may be extended by agreement between the parties). 

However, what happens if such an agreement is not in place by the end of the transitional period or an extended transitional period? 

In that case, Northern Ireland will remain in the EU customs union and form part of the EU’s internal market for goods, while also accepting the jurisdiction of the ECJ – this until such time as a long-term agreement is stitched up. So frictionless trade between both parts of Ireland would continue. 

However, the rest of the UK would take a different route. Following the conclusion of the transitional period and until a long-term agreement is clinched, Great Britain (England, Scotland and Wales excluding  Northern Ireland) will be in a customs union with the EU. However, unlike Northern Ireland, it will not be in the single market for goods. Moreover, responsibility for interpreting the deal will rest with the UK courts, not the ECJ. 

In order to understand the Talmudic complexity of post-transitional arrangements and in particular the alembicated distinction between customs union with the EU as it applies severally to Northern Ireland and GB, we only hope that it will muddy the waters yet further if we quote verbatim from the opinion sent to UK Prime Minister Theresa May on 13 November 2018 by the UK Attorney General, the Government’s chief legal officer, Geoffrey Cox:

[The numbers refer to paragraphs in the text]

7. “…NI remains in the EU’s Customs Union……GB is in a separate customs union with the EU creating a single customs territory between the EU and the UK, meaning NI and GB are not in separate customs territories…GB goods will … be able to pass between the UK and EU tariff-free. Goods passing from GB to NI will be subject to a declaration process…..”

8. “….The implications of NI remaining in the EU Single Market for Goods, while GB is not, is that for regulatory purposes GB is essentially treated as a third country by NI for goods passing from GB into NI. This means regulatory checks would have to take place between NI and GB, normally at airports or ports….”

9.”….Great Britain will no longer be a member of the EU’s Single Market for Goods or the EU’s customs arrangements. This means that any GB goods crossing the border into the EU will be subject to third country checks by Member State authorities to ensure that those goods meet EU standards. The EU currently requires some of these checks to take place at the border.”

If you can figure that out, you’re a better man than I am, Gunga Din! 

Poor Theresa May, the recipient of this advice! No wonder she’s lost her marbles.

If one tries to see the wood for the trees among all this legalist gobbledegook, it seems, subject to correction, that, post-transition, the rest of the UK will have a different regulatory relationship with the EU than will be the case in Northern Ireland. As a result, some form of border will need to be introduced to supervise trade between Northern Ireland and the rest of the UK.

This dog’s breakfast of an arrangement  is what – in exchange for indispensable DUP support for her minority government – UK Prime Minister Theresa May promised the DUP would not happen. The DUP, naturally enough, have said they will not accept it. 

What is more, legal opinion suggests that the UK will not be able to withdraw unilaterally from the agreement, which could remain in force indefinitely until a long-term agreement superseded it. Thus, the UK could remain bound into a customs union with the EU sine die. 

What kind of Brexit would that be?

What happens now is anyone’s guess.

Antigone1984:

For all the DUP resistance to the political differentiation of Northern Ireland from the rest of the UK, the fact is that Northern Ireland already has its own special political setup. The 1985 Anglo-Irish Agreement between Britain and the Republic of Ireland gave the latter – an independent state – a consultative role in the government of Northern Ireland. The 1998 Good Friday Agreement between Britain and the Republic gave the Province a devolved government in which power is shared between the Protestant majority (focused on maintaining the union with Britain) and the Catholic minority (which largely aspires to Irish unification). It also provided for the establishment of three British-Irish institutions: an intergovernmental conference, a ministerial council and an interparliamentary body. No foreign state plays such a key part in any of the three other states forming the UK. Hence, if the end of the Brexit transition period results in a political regime for Northern Ireland that is different from that for the rest of the UK, that is not without precedent.

Blue skies thinking for a rain-sodden island

Another solution – taboo for the nonce – is for Britain to wash its hands of Ireland once and for all.  That delightful country of hospitable natives has been a cauldron of political trouble for its imperial overlord and a burden on its exchequer since King Henry II of England landed in Ireland to establish his dominion in 1171 AD. 

Moreover, nearer our times, the 1921 Anglo-Irish Treaty instituting partition of the island – unprecedented in the 850 years of English occupation – was a classic “unequal” take-it-or-leave-it treaty foisted on the impoverished Catholic south by Britain’s imperial administration (like those it foisted on East Asia fifty years earlier)  in order to continue to profit from the output of the then prosperous industrialised Protestant north. 

One commentator: “For all I care, Northern Ireland can join up with the Republic, from which it should never have been amputated, or form its own independent mini-state on the lines of Luxembourg or Malta. Britain, for its part, should get shot of this unruly province for good and proper with a resounding “goodbye and good riddance!”. That would be a major positive spin-off from Brexit. If only!”

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You might perhaps care to view some of our earlier posts.  For instance:

1. Why? or How? That is the question (3 Jan 2012)
2. Partitocracy v. Democracy (20 July 2012)
3. The shoddiest possible goods at the highest possible prices (2 Feb 2012)
4. Capitalism in practice (4 July 2012)
5. Ladder  (21 June 2012)
6. A tale of two cities (1) (6 June 2012)
7. A tale of two cities (2) (7 June 2012)
8. Where’s the beef? Ontology and tinned meat (31 Jan 2012)

Every so often we shall change this sample of previously published posts.

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