Surf and turf

As blogger David Allen Green has pointed out, whoever produces the first draft of a legal document has the advantage. While the EU has been criticised for its backstop-Brexit draft, the UK has conspicuously failed to produce any draft at all, and shows no signs of doing so. The final transition agreement is thus unlikely to differ from the EU’s draft in anything other than some finer details and cosmetic language.

This was of course predicable and widely predicted back in December.

90% of the backstop draft is legalese for “the UK is out on its ear after the transition period ends, but anything that is in progress at that moment remains under EU jurisdiction until it is finished.” The other 10% reads (more or less) “the trade border will be in the Irish Sea unless the UK comes up with something that we like better in the meantime.”

The UK is not toast by any means. This agreement is still just a slightly altered default position, the current default being a catastrophic, no-transition crashout at midnight on March 31st 2019. All of the language is designed so that if some better agreement were to be reached within the transition period, this agreement could be washed away.

But the EU’s draft is important in that it narrows the menu of possible outcomes to three broad categories. Like an office christmas party, the choice will be surf, turf or vegetarian, with the only variation available being the style of potatoes.

Firstly, the red-meat turf option. Until a withdrawal agreement is signed, a no-deal hard Brexit is always a possibility. At best, this would be WTO rules on day one. Or the UK might follow through on its threat to ignore WTO rules requiring border customs controls, and thereby start a trade war with just about everyone that matters. Or it could fail to join the WTO, and throw itself on the mercy of the open sea. Given that the UK would have just violated a solemn agreement with the largest trade bloc in the world, mercy would not be forthcoming.

None of the above are appetising, but all are quite possible. And all would inevitably mean a hard border in the terrain, whether on the UK’s orders, the EU’s, or the WTO’s.

So perhaps surf would be more digestible. The backstop agreement, or some derivative of it, could be agreed now, but the long-term relationship talks could fail. This would mean that the backstop deal would become reality on 31st December 2020 and the border would remain in the sea. Unionists would be horrified, but some of the little-Englander Brexiteers might see it as a price worth paying.

Or thirdly, vegetarianism. A close, permanent trading accord could be agreed in the 21-month transition period. Perhaps nothing in the backstop deal might have to be implemented. But any alteration would certainly come at a cost to the UK’s red lines, leaving carnivorous Brexiteers dissatisfied. And based on the current government’s track record, it would likely be a humiliation.

At the moment the vegetarian option looks most likely, despite the political chaos it would cause in Westminster. This is because of two plain facts. Firstly, the UK doesn’t have an alternative on the table. And secondly, once the backstop deal is signed, it’s either a surf border or I Can’t Believe It’s Not Brexit. And a surf border is anathema to both Remainers and Brexiteer unionists.

With luck, unionists and Remainers will come to understand that they are on the same side. But there could be another two years of political histrionics before that decision becomes inevitable.

The only plausible get-out-of-jail-free card for the carnivores would be a swift and decisive border poll. But that decision is entirely out of their hands.

(Originally published on Slugger)

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And man created the nation in his own image

When we say we belong to a particular ethnicity or nationality, we are implicitly saying that we share traits in common with the other members of this group. Or are we saying that the other members of this group share traits in common with us? There is a subtle but important distinction.

In the popular imagination, the formation of an ethnic or national identity is an objective process whereby the members of the group find commonalities amongst themselves and thereby come to regard each other as kinsmen. But people are rarely objective. Our views of ourselves do not necessarily match those others have of us, and our views of them will not always match their self-image.

This is particularly problematic when disparate groups come (or are forced) together to form a larger grouping. Group A may see themselves as kinsmen of group B, but the feeling may not be reciprocated. This is because even though A’s self-image may correspond to their image of B, B’s self-image may not correspond to their image of A. This error can come about in two ways – either one does not fully understand one’s own identity and fills in the blanks from an outside source (so-called “false consciousness”), or one does not fully understand the identity of others and projects one’s own identity onto them. This can be illustrated by considering the relationships between the English, the Scots, and Irish unionists and nationalists (being aware of course that these terms are woefully inadequate).

Many people consider the English and the Scots as kinsmen in a British nation. But if you ask a sample of Englishmen and a sample of Scotsmen to define “Britishness” you will get a wide range of answers. John Major’s famous response to this question – long shadows on cricket grounds and warm beer – would strike most outside observers as a description of Englishness rather than Britishness. In this case an Englishman has projected an English identity onto Britain as a whole. The Scots and the Welsh are less likely to make this error, having a heightened awareness of their relative size and status.

Unionists are often accused of a similar offence, although this time as a minority projecting their own identity onto a much larger group. It has been remarked that the Ulster-Unionist vision of Britishness is not the same one that the English or Scots see, Orangeism being one notable divergence. In addition, many unionists self-identify solely as “British”, without even any regional qualification. This has led to accusations of false consciousness, of adopting another’s identity to replace their own.

But this is a misunderstanding – one only has to watch an international football match to understand that unionists are viscerally aware of the distinction between their own identity and that of the English, Scots and Welsh. The adoption of “British” as a self-identifier is not due to the lack of an identity, but partly at least to the lack of a better name. Euphemisms exist, but none of them are accurate. Bluntly descriptive names exist, but none of them are considered polite.

And yet there is still confusion over symbolism – Union flags and GSTQ are used as local identifiers by Englishmen and unionists alike (in contrast to the Scots and Welsh), suggesting that there is still something partially-formed about both identities. This confusion is infectious – in the Republic, it is my experience that many people think that unionists believe themselves to be English. But then, people in the Republic have an understanding of the term “British” that no unionist would recognise.

Similarly, nationalists have often been accused of projecting their own identity onto all Irishmen, unionists included. Indeed, the fear of ethnic homogenization was one factor behind the creation of a distinct unionist identity out of previously separate (monarchist) Protestant and (republican) Dissenter factions. Accusing all Nationalists of operating a cultural steamroller is preposterous, not to mention insulting. But the unionist fear of it is very real, and this also drives the adoption of the larger, more powerful, British identity in preference to any local equivalent.

The challenge to both political Unionism and political Nationalism alike is how to build a common identity that can transcend both Ulster Britishness and northern Irishness, when both those local identities define themselves in opposition to the other’s chosen collective identity. “Ulster is British!” and “the Six Counties are Irish!” are both statements of a larger political conflict, where rival states clash over territory. But they are also simultaneously about a smaller identity conflict, where each group refuses on principle to conform to the other’s expectations.

(This article originally appeared on Slugger)

Shibboleth and sibhialtacht

The Irish-language issue is back in the headlines again. Despite the best efforts of campaigners such as Linda Ervine, it is still the case that most ethnic-unionists define themselves at least in part by their rejection of the Irish language. Never mind that some of their ancestors must have spoken it, as evidenced in many cases by their own surnames. Unionists have abandoned the mother tongue of their ancestors in much the same way that German-descended Americans have abandoned theirs.

While other Americans cling proudly to their double-barrelled identities, German-Americans are now identifiable only by their names, and their culture is simply called “American”. Much of this was down to anti-German sentiment during the First World War, when “liberty sausages” were the original “freedom fries”. German-Americans were forced to choose between their past and their future, and their history became the price of their prosperity.

The Gaelic Irish ancestors of today’s unionists had a similar choice imposed upon them, and they too gave up their language (and religion) in order to secure their place in a hostile environment. The melting pot that eventually became unionism inherited not only the Planter’s disinterest in a language that held no cultural resonance, but also the ex-Gael’s conviction that the Irish language, like the Catholic church, was a prison from which they had been liberated.

Ethnic-unionists don’t just happen to not speak Irish. They are partly the descendants of those Gaels who intentionally left the language behind, and this active rejection, clouded by the passage of time, became part of the founding myth of unionism. When campaigners argue (correctly) that the Irish language is part of our shared heritage, they’re not being as persuasive as they think they are. Unionists know this already. It’s precisely what they’re afraid of.

One commonly-proposed “compromise”, that Irish should only be used or promoted in those areas where it is wanted, is merely another example of the shared-out future that has allowed politicians to evade the hard but necessary decisions. Instead of tattered flags flying from lampposts, ethnic ghettos would be identified by shiny, state-funded signage. It is hard to see how this would help to bring communities closer together.

Surely it would be better for Nationalists to compromise on the extent of any ILA in order to ensure that it comes free of any taint of segregation. Not every victory has to be achieved in the first campaign. An explicit commitment that English would remain the first language of NI would cost nothing. Campaigners should also be careful not to conflate cultural preservation with anti-discrimination. They may overlap, but they are not the same.

And it would be wise of Unionists to back down from their not-an-inch opposition and debate the legislation on its detail, rather than its symbolism. For the immediate future, the direction of change in NI is inevitably going to be away from Unionism’s comfort zone. The rebalancing of power between Unionism and Nationalism is not yet over, and political Unionism does not have a stellar track record of managing expectations.

Like all the rest of NI’s most intractable problems, the issue here is not some technicality that can be engineered around. It is a matter of face, perception, status and fear.

(This post appeared originally on Slugger)

The limits of transactional politics

Contract law is a vast subject, but at root, it is the process of making and enforcing agreements between two parties that do not fully trust one another. Any mutual mistrust is compensated for by mutual trust in some other mechanism.

This could be a dispute process set up by the contract, an authoritative third party such as the courts, or simply the ability to abrogate the contract and walk away. Contracts and agreements are transactional – each party accepts responsibility for a well-defined action, but that responsibility is only valid so long as all other parties live up to theirs.

When the contract is completed no further action is required, and when a contract is abrogated all responsibilities are void. Everybody pays something and gains something else in return. It would be foolish to do otherwise, for fear of being seen as an easy mark. Contracts and agreements are thereby one of the basic foundations of civilisation. But they are not a foundation of society.

Civilisation relies on written records, objective norms, and a system within which strangers can coexist. But society predates civilisation. At the heart of society are interpersonal relationships, informal conventions and, most importantly, mutual trust.

One does not normally rely on the law when dealing with family and friends. We constantly perform small favours for each other in good faith, and only rarely keep a running tab. When a personal relationship becomes subject to a court of law, it is a sign that something fundamental has gone wrong.

One also does not normally sign a contract before entering a shop, playing a game or crossing the road. All these things are subject to the law, but only as a last resort. We are trained from childhood to say thank you, pay what we owe, take our turn, and generally assume that other people are trustworthy until they prove otherwise.

We all subconsciously obey the golden rule and only occasionally need to be reminded of it. Even in lawless parts of the world (perhaps especially in lawless parts), informal norms function as a vital social glue. Honour and dignity survive and thrive in places where barely anything else can.

Northern Ireland is not a lawless land today, nor was it at the height of the Troubles, even if at times it may have appeared so on the evening news. It does not lack laws or institutions, imperfect as they are. It does, however, lack trust. Not trust at the level of entering a shop or crossing the road. If anything, NI is more open and genuine than the stereotypical modern society – but only on the condition that certain subjects are avoided. These are the shibboleths that can instantly turn a social gathering cold, and render politicians incapable of rational thought.

I don’t need to name them. We all know what they are.

So while some troubled parts of the world have a strong society at a personal level and a weak civilisation on top, NI finds itself with a strong civilisation but a weakened society underneath. The former may not seem so strange – in honour-driven societies, there are of course subjects such as religion that is best avoided. But it is rare to find a politically stable country where the most urgent political arguments remain socially taboo.

For the majority of the time, we can live as equals in one social space. Shopping, working, eating out, even having a pint (in certain pubs). But when the touchstone political subjects come up, we declare that the person we sit beside for eight hours a day five days a week is one of Them, and that we cannot talk to Them directly, only through Their political representatives.

Just like an estranged couple lawyering up in preparation for an ugly divorce, we politician up in expectation of an argument that we can’t bear to engage in personally. It is, of course, a defence mechanism. But once we politician up, nuance and compromise are treated as deadly weaknesses. Politics at one remove becomes as transactional as a contested divorce, a corporate acquisition, or a strategic arms treaty. The countless delicate relationships of society are reduced to line items. The grace and generosity that we take so much pride in vanish like the morning mist.

It was memorably said of the Republic’s equal marriage referendum that it was the result of honest conversations around kitchen tables in every town in the state. A once-controversial issue was discussed directly, and in good faith, at the personal level. Many of these conversations were difficult and uncomfortable. But they were made possible because the people on either side of the issue shared, and continue to share, a kitchen table.

The necessary strong social relationships were already in place to build a frank political discussion upon. There were no spokesmen, no politicians in these thousand tiny debating chambers. Society moved, and civilisation followed. Nobody demanded that the losing side was entitled to compensation.

Around whose kitchen table will Northern Ireland’s divisive political issues be honestly discussed? Where are the enduring social bonds that can support the difficult compromises required? When will we stop insisting that any change is a concession to Them that must be paid for in full?

(This article originally appeared on Slugger.

One thing that unionists might want

In a previous article, I made the bold assertion that “Nationalism has nothing that Unionism wants”. What I should have said was “Northern Nationalism has nothing that Unionism wants, and Nationalism in general has nothing that Unionism wants… yet”. While Northern Nationalism may still not have much to attract Unionism, after 30th March next year the Republic will have something that unionists may quickly find themselves jealous of.

MEPs.

While their colleagues in Stormont and Westminster get seemingly endless airtime, Northern Ireland’s three MEPs have been quietly getting on with the job in Brussels and Strasbourg. Outside the political mechanics of the elections themselves, the only occasion any NI MEP made the front page was when Paisley heckled the Pope. But this lack of press coverage does not reflect a lack of importance; the European Parliament is a powerful body, and one in which individual members enjoy more influence than any backbencher in either Westminster or Leinster House.

On current plans, the three MEPs will vacate their seats on March 29th 2019 along with the rest of the UK’s delegation. And with them will go one of NI’s strongest tools for protecting its economic interests. Whether it is manufacturing exporters in Ballymena, content producers in Bangor, or dairy farmers in Fermanagh, the EU’s regulations, as drafted in the European Parliament by MEPs, are the framework of the modern economy.

And Brexit will not change this one bit.

As the British Government struggles to reconcile its red lines with the cold realities of a hard Brexit, virtually every economic lobby group from the CBI to the TUC is campaigning for the UK to remain as closely aligned to EU law as possible. On top of that, the Irish Government has secured a commitment that there will be “full regulatory alignment” between North and South, which effectively means between East and West also. The only plausible alternative to a cliff-edge Brexit demands that the UK as a whole continues to follow EU regulations, but without any representatives in the parliament where these regulations are drafted.

Norway’s so-called “fax democracy” is sometimes overstated. Norway has to transcribe into national law all EU regulations in the areas covered by the EEA. And yes, it has more influence on the drafting process than sometimes admitted to, as it meets regularly at governmental level with EU members in order to defend its interests. But there is no question that its voice carries less weight due to its lack of representation in the increasingly powerful European Parliament. And so it will be with the UK. It is big enough and rich enough that its concerns will never be completely ignored. But it will be Downing St making the representation, not local politicians. NI will find its voice to be very small when compared to that of London or the South East.

But not silent. It is unthinkable that Sinn Féin’s remaining MEPs would fail to stand up for the interests of their party’s electorate north of the border. Northern Nationalism will therefore have a direct line to the corridors of power via the local SF advice centre, something that political Unionism will find difficult if not impossible to replicate. Small businesses and farmers from the unionist community will find themselves either asking their local MP to ask the relevant minister to make representation on their behalf at the next bilateral summit, or holding their noses and contacting their local Sinn Féin representative.

It will be a long time before ordinary unionists fully trust Sinn Féin. But what if there were some friendly MEPs who were less objectionable to unionist sensibilities, and whose members sat with more influential groups than the relatively small European United Left? The other parties in the Republic have a golden opportunity, even a moral imperative, to take on the responsibility of representing the economic interests of Northern unionists in the EP. Without expectation of any quid pro quo, without any implied consequences for the constitutional status. Just because it’s the solemn duty of a public representative to represent the public.

Would that be something that unionists might want?

(This post originally appeared on Slugger)

Our son of a bitch

The headline of Doug Beattie’s article in the Belfast Telegraph yesterday illustrates how sloppy language and sloppy logic hinder rather than help the process of understanding. Leave aside the article itself for now; one sentence in the headline alone (“Republicans weren’t victims, they were victim-makers”) contains a prime example of both.

Firstly, the sloppy language of “Republicans” fails to distinguish between the Provisional IRA and those people who never picked up a gun but would still regard themselves as Republican. In the same vein, when people blame “Unionists” for the actions of Unionist politicians or “Brits” for the actions of the British Government, it can be argued that a commonly understood shorthand is being used – but in Northern Ireland the use of imprecise language is an open invitation to misunderstanding that many will enthusiastically accept.

This is a common ambiguity in the English language, the infamously context-dependent bare plural. When a statement is made about “Republicans” it can be read as “particular Republicans”, a few hundred members of the PIRA, but it could also be taken to mean “all Republicans”, a two-digit percentage of the electorate. It is probably safe to say that Beattie (or his subeditor) intended the former, and it is also probably safe to say that a significant percentage of actual Republicans took the other meaning.

Secondly, the sloppy logic of the false dichotomy implies that one cannot be both a victim and a victim-maker. It should not take much effort to think up an endless list of counterexamples. One can be both a victim and a perpetrator of violence, and indeed being a victim of violence can encourage one to subsequently become a perpetrator. This is not rocket science, but it is conveniently forgotten in the heat of argument.

But all this is just one example of excessive generalisation, a common rhetorical flourish that produces pithy soundbites but poor analysis. And when it is used like this to apportion blame upon others, the danger is that instead of singling out the guilty one has lumped the guilty in with the innocent.

“Unionist”, “Nationalist”, “Republican”, “British”, “Irish”… each one of these terms is not just an abstract category, but an identity that is clung to by hundreds of thousands of people each. When you apportion blame to hundreds of thousands of people in one sweeping statement the instinctive reaction is not going to be that obviously you only meant to blame some of us. Guilty and innocent are treated alike, blurring rather than sharpening the moral lines.

As the apocryphal Roosevelt quote goes, “he may be a son of a bitch, but he’s our son of a bitch.” Under fire, identity trumps all. And so people who may not otherwise have much in common find themselves standing side by side. If the intent was to drive a wedge between guilty and innocent, the exact opposite has now been achieved. “Brits out!” may not have been intended to mean everyone who identifies as British should be driven into the sea, but that’s how it was understood, and it only strengthened the Unionist British identity. Every troubles-era Unionist should know this in their bones, but too often an equally thoughtless, sweeping soundbite makes its way back across the barricade and galvanises the other side.

With every general statement blaming Unionists for discrimination, Republicans for terrorism, Brits for state brutality, the separate identities of Northern Ireland are wound more tightly in shared indignation, and actively driven apart.

(This article originally appeared on Slugger

Making friends with the cat next door

One of the most disappointing things to come out of recent NI political history was Sinn Féin’s much-vaunted, but quickly forgotten, Unionist Outreach project. In theory, this had a lot of potential. In practice, it was like a toddler trying to make friends with a cat.

To make friends with a cat, you have to make no mistakes. It doesn’t matter how many nice noises you make, or how nonthreatening you make yourself appear. One wrong move and the cat is on the other side of the wall, and you have to start again from scratch.

And that’s assuming that the cat has any inclination towards making friends with you in the first place.

As Mick has so often pointed out, Irish Nationalism is strategically very weak. Unionism has what they want – a blocking majority – but Nationalism has nothing that Unionism wants in return. The republican movement once had a cessation of violence to offer, but they consistently overestimated just how valuable that was, and it was spent getting the GFA over the line. Recognition of the PSNI and devolution of justice got us St Andrews and the chuckle brothers. But that was a decade ago, and there’s nothing left in the bank.

Transactional politics, where the art of the deal is paramount, has run out of road. The system is broken again, and there is nothing left for SF to trade except a return to the status quo ante, which the DUP seem to value as much as the Emperor Qianlong valued European goods.

If anything game changing is to be brought to the table, it is Nationalism that must bring it. Nationalists will protest that this is unfair, and they would be right. Politics is unfair. It is the advocate of change that has to put in the work, because their opponents are not going to help.

And so we return to the cat.

The cat has nothing personal against the child. It just sees no potential reward from engagement that could possibly balance the risks. The way to make friends with the cat is threefold: offer a tasty reward; make no threatening moves; and have infinite patience.

The reward must be generous – there is no point offering the cat a dead bird; it is perfectly capable of getting one of those for itself. Cooked chicken is good; steak is better. It doesn’t necessarily mean you are promising the cat steak dinners every day. Think of it as a loss leader.

The prohibition on threatening moves is absolute; trust is hard won and instantly lost. Whatever you do, don’t even think of mentioning even the distant future prospect of tummy tickling.

And patience is a virtue. The worst thing you can do is change your cat strategy just when the cat is starting to re-evaluate its risk/reward calculation, for then you have demonstrated the deadliest sin of all – insincerity.

Transactional politics is the politics of enlightened self-interest. By definition, it cannot further the common interest.

(This post originally appeared on Slugger)

Onwards and inwards

One theme that comes up disappointingly often in politics, and Northern Irish politics in particular, is the strategic retreat into metapolitics. If you fear that you’re losing the argument, change the subject so that the argument is now about how well or badly the argument has been conducted. This is particularly powerful if the original argument had itself been about who had been badly treated in an even earlier argument. If done carefully, one can effectively prevent any conclusion from being reached in finite time.

It’s not difficult to see how this tactic became popular in the halls of Stormont.

The simplest such metapolitical argument is to note how uncivil the debate has become, and use that to argue for the suspension of debate. But more sophisticated variations on the theme can be constructed, and NI political parties have become very good at it.

This comes to mind today because of the latest series of statements on the Irish language by Robin Swann. Concubhar has already dissected some of it, but the metapolitics that jumped out at me in particular was this:

We are concerned that in a society which is already beset with divisions, the current debate surrounding an Irish language act is serving to further divide society.

Instead of focussing on that which should unite society – the need to tackle waiting-lists, the crisis in school budgets, and the need to create new and better jobs – Northern Ireland is being all but held to ransom by Sinn Fein demands about a language that was politicised by them and used and abused by them for their own selfish reasons.

No observer of NI politics can deny that the Irish language is divisive and has been politicised. But accusing your party political opponents of being solely responsible for politicising an issue is itself an attempt to politicise the politicisation of the issue. The more energy is spent arguing about who is to blame for the argument (about who is to blame for the argument (about who is to blame…)), the less likely it is that anything will get decided on its own merits.

The irony that this post is a metapolitical commentary on metapolitics has not escaped me. And so we continue, onwards and inwards.

(This post originally appeared on Slugger)

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)

After Brexit: the options

As time went on, speculation reached fever pitch. The internet was full of crazy theories about developments that would overturn everything we knew, seemingly convincing timelines of events that would soon unfold, and ingenious analyses proving that things were either nowhere near as bad as they seemed, or much worse than anyone imagined.

I am of course talking about Game of Thrones.

And in the end (no spoilers, I promise!) the vast majority of these excitable scribblings fell away, shown to be the half-baked wish-fulfillment that they always were. The best plot twists in a good story, whether fictional or historical, are the ones that hindsight tells us we should have been able to predict, but didn’t because we were distracted by something else. Yet given enough monkeys with typewriters, there will always be somebody who called it right, whether by divine inspiration or by dumb luck.

The same will apply to Brexit. Fevered speculation at the moment is concentrating on a second referendum to reverse the outcome of the first, Article 50 never being invoked, a federal UK being both inside the EU and outside it simultaneously, England declaring independence from Scotland and other such clever, clever schemes. I’ve even indulged in it myself, enjoying the endless horizon of possibility. But there are constraints on the seemingly infinite selection of options available, and it is vastly more likely that the outcome will be disappointingly prosaic. So, in that spirit I’ll try to lay out the less clever scenarios that have some chance of actually happening.

Nothing

The “referendum, what referendum?” option.

It is entirely possible that nothing will happen, that Article 50 will never be invoked, that some excuse will be found to backtrack on the referendum result – but this would be a risky option to take, both domestically and in the EU. Domestically, simply ignoring a referendum result (no matter how many times you explain “non-binding”) would call into question the legitimacy of the government. And the UK’s position in the EU is already compromised – no political leader would be able to deal with the UK in good faith while the Damoclean sword of a surprise Brexit remained dangling overhead. Cooler heads will prevail, and talk of forcing the UK’s hand will quiet down, but toothpaste cannot be squeezed back into the tube, and nobody’s patience is infinite.

The only theoretical scenario where UK/EU relations could return to the status quo ante would be following a LibDem general election landslide on a manifesto commitment to grovel for forgiveness. Much more likely that the government would collapse, perhaps repeatedly, and the UK’s chair in Europe sits empty while the rest of the world moves on without it.

Likelihood: **… Tempting, but unsustainable.

Customs Union / Common Market

The Turkish option.

The Customs Union is one of the oldest parts of the EU, dating back to the EEC’s founding in the 1950s. It is likely that the UK will retain CU access in any negotiations, as its terms are relatively uncontroversial. It allows for tariff-free trade between its members, a common external tariff rate and a common negotiating position in trade talks with third countries (e.g. TTIP). There is no requirement for freedom of movement in the CU, so this would allow for the immigration changes that were the central issue in the Leave campaign.

The only wrinkle would be that some Leave campaigners (UKIP in particular) were in favour of “negotiating our own trade deals”, which is incompatible with CU membership, but of all the promises to take back this would be one of the easiest. And it could be argued that “access to the Single Market” would be satisfied by the Customs Union (“access to” being distinct from “membership of”).

Turkey, Andorra , San Marino and Monaco already have this relationship with the EU. Norway, Iceland, Liechtenstein and Switzerland however do not, the main sticking points being agriculture and fisheries which are protected by (mutually) high tariff barriers in each case.

Likelihood: ***** With or without SM, see below.

Single Market

The Swiss option.

People often talk about the Single Market as if it and the Common Market were synonymous, but the SM is a more recent development, coming in to force in stages leading up to (and beyond) the original target date of 31 Dec 1992. Its main innovation is the delegation of market regulation to the European institutions, in order to more quickly remove non-tariff barriers to trade between its members – earlier efforts having ground to a halt under repeated national vetoes. The SM is what most people think of when you say “EU”, and it is the creation of the SM that first caused the UK to rethink its relationship with the (then) EEC, leading to Thatcher’s handbag deployments and the Sun’s infamous “Up Yours Delors” front page.

It cannot be repeated often enough that it is the conditions of the Single Market (freedom of movement, laws written in Brussels, budget contributions) that the Leave campaign was aimed squarely at.

It is possible for the UK to stay in the Single Market, either through EEA membership (this would need the consent of Norway, Iceland and Liechtenstein, which would complicate negotiations) or more likely through a Swiss-style bilateral treaty. In either case, it would mean reneging on some or all of the main promises of the Leave campaign. It is worth noting that the Swiss deal does not include financial services – the UK would be desperate to have these included, making its negotiating position in other areas weaker.

(There seems to be one school of thought among Leavers that the UK’s current predicament is the fault of weak politicians who won’t bang the table hard enough during negotiations, and that all the UK needs is a tougher stance to extract more concessions. To that hubris one can only say: if Thatcher’s handbag couldn’t get the concessions you want, what chance do you think you have?)

There is currently no non-EU country that is a member of both the Customs Union and the Single Market, but there is no reason in principle why this could not happen. In practice, simultaneous membership of the CU and SM is effectively full EU membership without the CAP and without a vote. It would be hard to sell any Single Market option (either inside or outside the CU) as a victory for democracy, and a Conservative government that came back with a deal that failed to address the three main Leave complaints (immigration, regulation, taxation) would be vulnerable to attack from UKIP (who are already positioning themselves in anticipation).

Despite those concerns CU+SM is the most likely scenario, one that most Remainers and a sufficient number of Leavers will accept. But because of those concerns, it will probably not be the last word on the subject.

Likelihood: ****. (with or without CU) Minimum economic chaos, maximum political chaos.

Scottish Independence

If Scotland wants to remain in the EU after Brexit, then the only way to do so is to declare independence from the UK. EU members are by definition signatories to the Treaty on European Union (aka the Maastricht Treaty), and only sovereign states under international law have the capacity to sign treaties. The Greenland precedent does not apply, because in that case it is Denmark who is the signatory and therefore the member. Opt-outs and opt-ins are not mirror images. Any territory wanting to be a member of the EU must do so via a sovereign signatory, whether that be itself or its parent state. That means that clever workarounds such as a federal UK will have no bearing on EU membership. You’re either a sovereign state or you’re not.

And this hard choice may be the undoing of Scottish independence, at least in the short term. Scottish resentment may have grown, but its economic predicament has just become more difficult – even setting aside the oil price. Before Brexit, it was a plank of the independence movement that an open border would remain between Scotland and the rUK on the same basis as its Irish counterpart. If the rUK tightens its immigration rules and/or leaves the customs union after Brexit, then a hard(er) border would have to be drawn.

It should be noted however that one commonly-cited impediment to Scottish independence within the EU is nonsense. Scotland cannot be forced to adopt the Euro if it does not want to, even if it is made to sign away the UK’s treaty exemption. Sweden shows the way:

Sweden maintains that joining the ERM II (a requirement for euro adoption) is voluntary, and has chosen to remain outside pending public approval by a referendum, thereby intentionally avoiding the fulfilment of the adoption requirements.

Likelihood: **… (Short term) ****. (Eventually)

The Catalan Precedent

The big “if”.

If both Brexit and Scottish independence happen, and if they happen within a short enough timeframe, it may be possible to strike a deal to allow Scotland to continue its EU membership – either by inheriting the UK’s membership at the moment of independence (which would require a feat of choreography and an innovative interpretation of international law) or by preparing well in advance so that Scotland could be admitted at the stroke of a pen afterwards. Scotland is currently enjoying a moment of remarkable goodwill, but this will only translate into a special arrangement if it can be written in a way that does not set a Catalan precedent, and therefore escapes a Spanish (or Belgian) veto.

A Catalan precedent would be set if the EU allowed a region of a member state to secede and afterwards join the EU without going through the full accession process from scratch (which under Article 49 can be vetoed by any member state). Spain fears that Catalonia and the Basque country would be encouraged to secede if they were able to join the EU afterwards, so threatens to use its Article 49 veto on their (hypothetical) membership applications. If a precedent were to be set that Article 49 could be bypassed, then this veto threat would be worthless. So Spain (and for similar reasons, Belgium) will in turn veto anything that might set such a precedent.

This was brought up in the original indyref as a stumbling block. Scottish independence would have to be followed by the full membership process, just like everyone else. This process would be shorter than for most countries, as Scotland already applies all relevant EU law, but would still be onerous. The UK might be able to persuade Spain and Belgium not to veto Scottish membership outright, on the basis that an amicable divorce would not set a precedent for a contentious one. But Article 49 would have to be obeyed.

In the case of Brexit, the UK would no longer be a member of the EU after Scottish independence – unlike the Catalan case where Spain would absolutely want to stay in – so it could (theoretically) be argued that this would not set a Catalan precedent either. But this decision would ultimately be a political one, and would depend heavily on the mood music. Expect utter carnage if Gibraltar comes up at any point in the discussions.

Likelihood: ????? This bookie is refusing to take bets.

The Irish Border

If the UK stays in the Customs Union then there will be no need for customs controls, and the smugglers will be disappointed – more so if the UK also stays in the Single Market. The great unknown then boils down mostly to immigration control. The current Common Travel Area arrangement relies on the immigration rules for the UK and Ireland remaining broadly equivalent. Shared membership (or non-membership) of the EU, and shared non-membership of Schengen meant that the two states were mostly free to arrange this between themselves. But if the UK tightens its rules regarding EU citizens then Ireland will, for the first time since independence, be unable to follow suit due to its EU obligations.

The only recourse in that event will be for the UK to impose immigration controls on travel to the UK from Ireland, to prevent EU citizens from entering the UK by the back door. Ireland may be able to get away without imposing controls, so long as UK immigration rules are consistently stricter (you only need to impose controls going from a less-strict jurisdiction to a more-strict one, not the other way).

If that is the case, then the most likely arrangement will be to impose controls at the sea/air border, on travel from the island of Ireland to GB. Security checks take place on all sea and air routes already, and these will be further hardened into de-facto immigration controls (but without admitting it, for fear of upsetting the unionists). This effectively leaves NI outside the UK border (and inside the EU) for immigration purposes, but inside the UK for all other purposes.

The price will be more sharing of data between the two border agencies, tolerating EU citizens entering NI so long as they don’t try to get a job, and annoying the unionists who see through it.

Likelihood: ****.

A Border Poll

There will be no border poll for the foreseeable future. The GFA is clear on the conditions, and any decision made by the SoS without supporting evidence would be subject to judicial review.

(And on a side note, Sinn Fein might take a leaf from Cameron’s book and stop banging on about about a border poll – it would do no harm to their unionist outreach programme, if they care about it that is…)

In the longer term however, there may be hints of movement. Young people-of-a-unionist-background of a liberal or left-wing persuasion have been openly questioning the UK government’s (and English voters’) ability to act in NI’s best interests, and their own commitment to a UK-wide identity. While this will not translate into any significant change on the border issue in the near future, it does demonstrate that young people-of-a-unionist-background (we really need better names for these things) do not have infinite patience with the UK government either.

And don’t forget, the practical arguments against a UI haven’t gone away you know.

Likelihood: ….. (Short term) ***.. (Eventually)

Renegotiation

The Hail Mary pass.

It is of course possible that more countries will threaten to follow the UK out the door. If this happens before the UK actually leaves, then there is a slim chance that they could collectively demand treaty change as a price for changing their minds. The UK by itself has already got as much as the EU will give, and has vanishing hope of yet another renegotiation (ah, go on). But with France, Netherlands, Denmark joining in?

Europe has always proceeded by crisis, but a treaty renegotiation in the middle of the current one may expose gulfs too wide to bridge. See the next option.

Likelihood: *…. Stranger things have happened.

Collapse

The hospital pass.

On the other hand, the spectacle of a second, and then a third country voting to leave the EU could trigger a mass loss of confidence and a sudden collapse. Morsels such as the Customs Union might be salvaged from the wreckage, but otherwise it would be a blank slate and a step into the great unknown. Governments freed from the corpus of EU law would be quick to enact reforms in the narrow national interest to deal with the economic and social fallout. Some of these reforms will be more effective than others, some will be less liberal than others and some will be downright nasty.

Likelihood: *…. Terrifyingly possible

(This post was first published over on Slugger)