In December last year, I started writing a post on Ireland and Brexit, which I never published because it seemed to have been overtaken by events: on 8th December, just barely in time for the EU mid-December summit, Theresa May agreed to preserve the Good Friday Agreement and the transparent border between the Republic and Northern Ireland. She had no choice: Donald Tusk had made clear in early December that EU-27 would be standing together and would collectively support the Irish government’s defence of Irish interests in preserving peace and a transparent border.
🎵Clowns to the left of me,
Jokers to the right, here I am,
Stuck in the middle with EU🎵
— The Irish Border (@BorderIrish) March 9, 2018
On 28th February, the EU Commissioners produced a draft agreement based on the outline Theresa May had agreed to in December. The UK did not produce its own draft agreement. Theresa May simply rejected it, claiming that no UK Prime Minister could possibly agree to the deal she had in fact agreed to in December.
But: if there’s going to be a deal for the UK at all before Brexit, it has to be set down in a form 27 EU governments can vote on and agree to, by 30th September this year. And that’s cutting it very, very fine and assuming that the agreement is something all 27 EU countries can vote Yes to.
And yesterday, Donald Tusk reaffirmed the EU position: the UK must provide a solution which includes a transparent border between the Republic and Northern Ireland, or EU talks will not continue.
As I see it, the UK government has four choices ahead of it:
- Hard border, customs and immigration, between the Republic and Northern Ireland: this ends the Good Friday Agreement, and the Troubles – already stirring, according to report – kick off again: also the Republic of Ireland will veto any deal the UK wants with the EU and the UK is looking at the catastrophe of no-deal/hard Brexit.
- Transparent border, customs and immigration, between the Republic of Ireland and Northern Ireland: hard border, customs and immigration, between NI and rUK: this preserves the GFA, can be part of a deal the Republic won’t veto – but the DUP will not agree to it and the DUP’s support is what is keeping Theresa May’s government intact.
- Transparent border, customs and immigration, between the Republic of Ireland and Northern Ireland: no border (status quo) between NI and rUK: to satisfy WTO and the EU on customs, the UK would have to adopt regulatory alignment overseen by the European Court of Justice across the whole of the UK, for all matters affecting trade in Northern Ireland: to satisfy the EU on immigration, the UK and the Republic would probably have to join Schengen.
- Remain in the EU. This is constitutionally possible by majority vote in the Commons – theoretically, any time up to 29th March 2019 – but neither Theresa May nor Jeremy Corbyn will ever agree to it.
Option three preserves the Good Friday Agreement, and can be part of a deal the Republic won’t veto – but 60 Tory MPs, more than enough to unseat Theresa May or instigate a general election, will veto this arrangement. Most Brexiters won’t be happy with a deal that effectively keeps the UK in the EU; most Remainers won’t be happy with a deal that effectively keeps the UK inside the EU but loses the UK its votes on the regulations that the UK will now have to abide by. Jeremy Corbyn seems to prefer this option, but Corbyn doesn’t have a say in the deal unless there is a general election between now and October.
As for why the UK would have to agree to join Schengen: I think a bespoke arrangement would have been possible, but I also think that negotiating that needed to have started a lot earlier.
The UK and the Republic have had a common travel area for longer than he EU’s existed – but there has never before been a situation for the UK/Ireland CTA where one part of it was in the EU and guaranteeing free movement, and the other part of it was outside the EU. If anyone who enters the UK can get free access to the EU via the NI/Republic border with no checks, and anyone who enters the Republic of Ireland can get free access to the UK from the EU via the NI/Republic border… well, it seems to me, both the EU and the UK would want some checks somewhere.
And the Good Friday Agreement requires there to be no border checks at all between the Republic and Northern Ireland.
If both UK and the Republic join Schengen, that’s an arrangement that is already set up – and as I understand it, the main reason the Republic didn’t join Schengen was the CTA with the UK and the UK not wanting to join Schengen.
The basic situation for NI is the same as for Gibraltar, except that the Gibs have less leverage than the Nornirish and will be far worse off with hard Brexit. In both instances, an odd border/sovereignity problem that has always caused conflict, could be resolved by the situation of the countries both sides of the border being in the EU.
Other possible options
General election sometime between now and end of October: any general election will cut at minimum two months out of UK negotiation time, and is unlikely to create any better resolution about Brexit. (General election season in the UK is generally between March and October.)
Tory leadership election to topple May and put someone else in charge, either someone devoted to hard Brexit and willing to have no deal with the EU, or else someone who wants to avoid Brexit or mitigate it.