The Northern Ireland border problem

The Northern Ireland border problem

The Northern Ireland border problem may turn out not to be the mother of all problems for the United Kingdom’s exit from the European Union, but instead the key to preventing BREXIT from becoming a catastrophe.

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By Matthew Parish

The Northern Ireland border problem is very simple to state and hence most difficult to resolve. Northern Ireland, a small region on the island of Ireland, is a contested territory between the Republic of Ireland and the United Kingdom, operating under the de facto sovereignty of the United Kingdom. Its population is roughly half Protestants owing fealty to London, and half Catholics owing the same to Dublin. The solution reached some twenty years ago to several decades involving cycles of violent insurgency and suppression was a regime of consociational government in Northern Ireland’s regional capital Belfast: that is to say, local provincial rule in which both Protestants and Catholics would be guaranteed specified levels of representation. Both London and Dublin would occupy consultative roles in the operation of a set of autonomous regional institutions.

This was the resolution developed by the Good Friday Agreement in 1997. One of the axioms of the Good Friday Agreement was freedom of movement across the entirety of the island of Ireland and the British Isles. All border controls would be abolished. This was possible by reason of the existence of two sets of supranational institutions. One is the “Common Travel Area”, which provides that persons in both the United Kingdom and the Republic of Ireland are not subject to immigration or travel restrictions when travelling between the two.The other is the European Union, which provides for its members to work in a common customs zone. There can be no tariffs in respect of goods moved between the member states of the European Union. Now the United Kingdom is scheduled to leave the European Union.

It is possible for a state to be outside the European Union but inside the common customs zone. Those countries are described as being in the European Economic Area. Norway is an example of such a country; Iceland is another. Again, in principle there can be no tariffs between a member of the EEA and the EU (although in practice there are exceptions). But to be a member of the EEA, a state needs to accept the EU’s rules on free movement of persons; EU rules on the regulation of goods; and the jurisprudence of the European Court of Justice. The United Kingdom has stated that it does not wish to remain a member of the EEA. Hence there will be tariffs between the Republic of Ireland – which will remain inside the EU and the EEA – and Northern Ireland, which will leave the EEA along with the rest of the United Kingdom.

Therefore there must be a “hard” border between the Republic of Ireland and Northern Ireland, not to inspect passports or identity documents but to inspect cargoes subject to customs duties. Abolition of the border between Northern Ireland and the Republic of Ireland was an essential tenet of the Good Friday Agreement, as the border had represented a point of conflagration, violence and ethnic tension particularly between Protestant-majority British security forces and Catholics using the border. Substantial effort was made physically to dismantle the border, which had been militarised and anyway had never followed a neat line, there being more than 200 public roads traversing the borders and a wealth of private land including a lot of farmland.

It is widely perceived, by all of London, Dublin and Brussels, that re-imposing border controls between Northern Ireland and the Republic of Ireland, were that to become an external border of the EU, would be undesirable. At the time of writing the devolved Northern Ireland Assembly has been suspended because the parties in Stormont (the seat of the Assembly) are unable to agree to form a government. There are protests by Northern Irish Catholics against making the border “hard”, i.e. subject to any sort of control. Demilitarisation of the Northern Ireland border was perceived as a substantial success of the Good Friday Agreement. Its reversal might be perceived as doing critical damage to the peace settlement in Northern Ireland.

There have been various solutions proposed to the problem, but none of them works except for UK membership in the EEA which the UK has said that it does not want. One option is to keep Northern Ireland in the EEA but for Great Britain to be outside. That would require a border to be created between Northern Ireland and Great Britain, to which Northern Irish Protestants (who support the current government’s parliamentary majority in Westminster) are resolutely opposed. Technological options will not work. Before the Good Friday Agreement abolished the Northern Ireland border, smuggling across the border was rampant. Norway and Sweden have 80 public roads along their border. Some main borders are manned with customs agents, and occasionally immigration officials. A few other borders have number plate recognition systems, so that if customs officials want to stop a vehicle they can do. Many borders remain unmanned by either officials or cameras. The system is reinforced by heavy penalties for smuggling.

Even then the system is highly imperfect. The Northern Ireland border would probably prove substantially more difficult to man, because there are far more border crossings along a border that contains far more twists and turns over a much shorter distance. Technological solutions to the Northern Ireland border problem have been considered and discredited. Moreover Norway is in the EEA, but still has to maintain a manned border because many goods are subject to some level of tariffs. If the United Kingdom were to leave the EEA, the tariffs and hence the checks would be much more substantial. The higher the tariffs, the more likelihood there is of smuggling because the greater the money there is to make by evading them.

Another solution – that preferred by the United Kingdom – is that the United Kingdom does not remain in the EEA but nevertheless has a tariff-free arrangement with the Republic of Ireland. The European Union will not accept this. Under such a scenario, the Republic of Ireland would become a legitimate door for access by the United Kingdom to the EU’s single market, without the United Kingdom taking upon itself any of the obligations of single market membership (including paying the EU for membership, which all EU and EEA member states have to do). The European Union is determined not to permit the United Kingdom to occupy this sort of privileged position relative to its own member states. If it did then the single market might soon dissolve, as every state withdrew from the EU but insisted upon a similarly privileged status to that enjoyed by the United Kingdom.

This is the Northern Ireland border problem, and it is the issue upon which the negotiations for the United Kingdom’s withdrawal from the European Union are currently stalled.

Absent the United Kingdom reversing its decision to withdraw from the European Union, or reaching a determination to remain in the EEA indefinitely, the problem seems irresolvable by conventional consensus. This is a cake there is no way to cut. Either the United Kingdom installs a new land border between Northern Ireland and the Republic of Ireland, or the EU grants to the United Kingdom a concession it has not granted to anyone else: a pick-and-choose approach to membership of the EU single market. Various discussions of temporary arrangements are just an exercise in delaying the inevitable impossible choice of continued membership of the common market or reinstalling a Northern Ireland border.

At the current time the parties are bounding towards a March 2019 exit date for the European Union in a particularly stubborn way. The politics of the game are complicated by the fact that all of London, Brussels and Dublin want the United Kingdom to stay in the common market. This is because the principal school of economic wisdom, premised around the theory of comparative advantage, prescribes that you do not willingly exit the world’s largest free trade zone. Nevertheless this school of economics, which until fairly recently prevailed by consensus, has come under attack from a form of neo-mercantilism which prescribes that to reduce a balance of trade deficit it may be desirable to impose tariffs upon imports, at the very least as a negotiating tool to reach agreed tariff reductions with one’s trading partners that balance trade deficits and surpluses so as to be more equitable whereas they are currently perceived as not being so.

This has led into a political movement in favour of withdrawal from the EU’s common market, on the basis that the costs – particularly in terms of the free movement of persons and acquiescence to the European courts – are too high a price to pay and the United Kingdom would be better off to balance its trade deficits by adopting bilateral trade agreements outside the common market. The number of British elected parliamentarians who subscribe to this kind of theory is such that they are perceived as currently holding the balance of power in a final decision of the British legislature upon the terms of the United Kingdom’s departure from the European Union, and/or in a vote of confidence that, with opposition support in a hung parliament, might bring the British government down. Hence London cannot say that it wants to stay in the common market. A hard core of Eurosceptics in the governing Conservative party are angling to use their House of Commons balance of power to prevent precisely this outcome.

The current Conservative Prime Minister’s strategy appears to push everyone into an impasse, managing the chaotic political currents in London and Brussels and the torrents of media exposure resulting from ceaseless frictions between the two capitals over the issue, to do an eleventh-hour deal. Presumably the terms of that deal will involve indefinite continuation of a transition period in which the United Kingdom will remain part of the EU’s common market, if not in name then in substance. To appease the EU, the deal will have to contain at least the optics, from the EU’s point of view, that even if the United Kingdom could theoretically later vote to leave the common market in fact it would not do so because the political process in London of keeping the United Kingdom in the EU, in alliance with the Northern Ireland Protestants (who can always be threatened with the prospect of a border between the United Kingdom and Northern Ireland), will neutralise the British Eurosceptics.

At the same time, London has a powerful tool to discipline both Brussels and Dublin. The United Kingdom simply has no intention of constructing a border between Northern Ireland and the Republic of Ireland. If it is to be built and manned then this will not be done, as it was during “the Troubles”, at the instance of Her Majesty’s Government. Instead it will have to be the Irish that build the wall, with the financial and logistical support of Brussels (because Dublin does not want the wall either). At that point, Northern Ireland will suddenly become an EU problem rather than a British one. That is something nobody in Dublin or Brussels wants.

I predict that there will be no “hard BREXIT”. Everyone has too much too lose. A last-minute fudge will be found, and the United Kingdom will remain in the EU’s common market indefinitely. And so it should be. This is sensible, logical, in accordance with best practice, and in the final resort the United Kingdom has an ace card up its sleeve that it has not yet elected to reveal – at least, not in public. The Northern Ireland border problem may turn out not to be the mother of all problems for the United Kingdom’s exit from the European Union, but instead the key to preventing BREXIT from becoming a catastrophe.

Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He has published two books and over 250 articles on the subject. In 2013 he was elected as a Young Global Leader of the World Economic Forum and he has was listed as one of the three hundred most influential people in Switzerland. He is currently a candidate of the United Kingdom of Great Britain and Northern Ireland for appointment to a position of Under Secretary General of the United Nations with an agenda for institutional reform.

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3 Responses

  1. Anthony (Antoine) DENIS

    Dear Sir,
    I have just read your article “The North Ireland Border Problem” .
    For many reasons, I have shown great interest in the development of the Brexit process from its beginning.

    I am a 65-year-old retired Frenchman, living in the Eastern part of France near the German border, where we have been dealing with border and customs problems – and solutions – for many years since and before the foundation of the EU.

    Hence my personal reflection on a workable (at least theoretically acceptable as a backstop, but who needs more ?) solution to the Irish border dilemma , based on a customs clearance procedure at the “Seller’s” premises (“at domicile”) on both parts of Ireland, applicable to:
    a) goods originating from Northern Ireland, entering the Irish Republic and intended for export to the Irish Republic or the rest of EU;
    b) goods originating from the Irish Republic, entering Northern Ireland and intended for export to Northern Ireland or rest of the UK.

    The advantages are as follows:
    – No physical hard border; no checks at the border on the Island;
    – No mandatory checks at (air)ports for goods originating from both parts of Ireland, hence no “customs border” between Northern Ireland and the rest of the UK in the Irish Sea;
    – Payment of the required taxes and completion of other regulatory checks at the “Seller’s” premises, with use of all computer resources for this purpose, including direct exchanges of data with the customs authorities of both parties.
    – Delivery of a “certificate of compliance” with the applicable customs requirements – including standards and tax regulations – according to the destination of the goods.

    As regards litigations (standards, contractual conformity of the goods, product liability, etc.), the simplest way would be to grant to the applicant the right to seize the jurisdiction of the place of delivery (effective or contractual) of the goods (hence ultimate competence, either of the European Court of justice in the EU, or of British courts in the UK.

    “Compliance with standards and regulations” could even become a matter of private commercial law by inserting a specific clause in the sale contract between Buyer and Seller such as follows:
    If Seller is a North Ireland firm and Buyer is located in the Irish Republic:
    Seller shall comply at their own expense with the provisions and requirements of all European and Republic of Ireland statutes and subordinate legislation, standards, regulations and directives…
    If Buyer is a North Ireland firm and Seller is located in the Irish Republic:
    Seller shall comply at their own expense with the provisions and requirements of all Union United Kingdom and North Ireland statutes and subordinate legislation, standards, regulations and directives…

    For Seller firms too small or ill equipped to carry out the “clearance at home” procedure, a few clearance facilities could be set up in both parts of the Island, for the purpose of delivering the aforementioned “certificate of compliance” and thus making it possible for these firms to benefit from the same export procedure as described above.

    I leave these few ideas to your appreciation, remaining at your disposal for whatever purpose it may serve.
    Best regards,
    A. DENIS

  2. Ken Holt

    Excellent summary of the problem as one would expect from Matthew Parish. Just a minor niggle:- Paragraph 13 “who can always be threatened with the prospect of a border between the United Kingdom and Northern Ireland” should read “who can always be threatened with the prospect of a border between Great Britain and Northern Ireland”.

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