There is no way for NI to remain in the EU after Brexit. Alternatives exist, but they all come at a price.

Last week, Kevin O’Rourke wrote in the Irish Times:

It is logically coherent, if lunatic, to argue that Ireland should quit the EU and join the UK customs union. (Leaving the EU would on its own obviously not suffice to avoid a North-South border: our exit from the EU would have to be of the red, white, and blue variety.)

It is also logically coherent to argue that Northern Ireland should remain within the EU, and I wish it would. That seems like something worth arguing for. But it is logically incoherent to argue that if we remain in the EU and its customs union, and the North leaves both, there can be some special deal that will avoid the need for a customs frontier on the island.

Those who say Ireland should leave the EU know they are in a small minority. Many will not come out and argue for their position particularly strongly for fear of being laughed out of court. The evidence that our prosperity is based on EU membership is overwhelming. Still, expect them, in the months and years ahead, to claim that the return of a customs frontier somehow shows that “the EU” has let Ireland down.

The Brexit campaign shows that such dishonesty can pay. Which is why it is so important that everyone understand that if the North leaves the EU and its customs union, and we remain inside it, there is nothing that the EU or anyone else can do to prevent the return of such a frontier.

The article suffers from muddled thinking when it proposes solutions though. It is not legally possible for NI to remain in the EU while it also remains part of a post Brexit UK. Only sovereign states are members of the EU. This is not a matter of geographical exemptions. It is a matter of political representation, sovereignty and treaty law.

The Greenland precedent is not helpful – in that case Greenland gained an exemption from EU law while the sovereign state (Denmark) remained a member. If that were to be applied to Brexit, then England, Scotland and Wales would have an exemption from the EU while the UK as a whole remained a member, but only in order to represent the people of NI. Such an arrangement would be preposterous.

NI could remain de facto part of the single market but only by a) breaking the UK internal market instead and b) submitting to fax democracy, where NI would have its laws written for it in the EU without any representation at the table (short of what the Irish government might provide gratis). This would require all EU competencies to be devolved to NI, including employment and immigration law. It would likely also require full fiscal autonomy. This would not be devolution, but something closer to Gibraltar-style internal autonomy. Given how deeply the Irish government would then be embedded in the domestic legislative process, it would probably be both simpler and more honest to just have a united Ireland. At least in that scenario, EU agricultural and structural subsidies would continue (but the block grant would vanish).

An easier sell would be to keep NI de facto inside the EU customs union by shifting the RoI’s customs frontier to Larne. This would be an arrangement similar to that of Monaco, which has no official treaty with the EU, but which by bilateral agreement allows France to treat Monaco’s sea border as a French border for all practical purposes. This of course means that the UK’s internal customs union would be severed instead, but such arrangements have precedent. Büsingen am Hochrhein is a small exclave of Germany entirely surrounded by Switzerland, and has long been treated as part of Switzerland for customs purposes. Whether this would be sufficient to save the cross-border economy would depend on how generous and how quickly the new EU/UK free trade deal turns out (don’t hold your breath).

The big unknown is the Common Travel Area. It is just possible that the EU may allow it to continue with the current spot check enforcement regime, considering that the UK’s immigration law is likely to be stricter than the EU’s for the foreseeable future. But this would require a generous helping of goodwill from all sides. Alternatively, it may be possible to move the RoI’s hard immigration frontier to Larne.

None of the above are cost-free options. The emotional cost to Unionists in particular would be heavy no matter what sort of deal is struck, but any arrangement that keeps an open border would surely be cheaper and less disruptive than the default alternative.

A united Ireland is as far off as ever, for the usual well-worn reasons. That may change if after Brexit the UK decides to alter economic policy to NI’s disadvantage (e.g. by cutting agricultural subsidies) or if Indyref2 comes to pass. But NI is still incapable of supporting itself, and it is proportionately less of a burden on London than it would be on Dublin (which is still in primary deficit, let us not forget).

The best case scenario for Ireland (north and south) remains for Brexit to magically go away. But barring a political upset of Canadian proportions that’s a pipe dream.

(This post was first published on Facebook, and then on Slugger)

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