by Martin Odoni

The European Union has every right to run out of patience with the United Kingdom over its meaningless negotiating position on ‘Brexit’, including the decidedly indecisive stance on the fate of Northern Ireland. Sure enough, the EU’s chief negotiator, Michel Barnier, is drafting a formal ultimatum for the British Government to make a decision on what Northern Ireland’s relationship with the Republic of Ireland will be after Brexit. The lack of clarity or conviction from the British so far in negotiations has probably been the biggest sticking-point in the whole process, and is doubtless maddening to many in Brussels.

However, I am going to offer a rare moment of sympathy – or at least understanding – to our embattled Prime Minister, Theresa May, and her Brexit Secretary David Davis. In truth, the Conservative Party as a whole has brought the logjam on itself, but however one might get there,  it is never pleasant being in a no-win situation. And there is a possibly insurmountable problem over settling the Irish border that I do not envy them the task of untangling.

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The Good Friday Agreement is irreconcilable with a ‘Hard Brexit’

The six counties of Northern Ireland endured nearly three decades of Protestant/Catholic sectarian conflict – frankly civil war – from the late-1960s to the late-1990s. Although a complete peace has never really been achieved, the province has had two decades of unusual stability, and remarkably little bloodshed, thanks to a treaty agreed between the UK, Eire, and the various factions representing the (mainly Protestant) Unionist and (mainly Catholic) Nationalist communities in 1998. That treaty, known as The Good Friday Agreement, was one of the finest triumphs of European diplomacy in the Twentieth Century. It found a workable process for serving the interests of Ulster communities, those who wished to remain British, and those wishing for unification with Eire, including a devolved power-sharing Assembly of elected representatives at the Castle of Stormont. The details of the GFA are quite complex.

The problem that may prove insurmountable is that a total breakaway from the EU by the UK appears completely incompatible with the GFA. Literally, the two policies cannot exist side-by-side; they actually contradict each other.

One of the rules of the GFA was that trade conditions on both sides of the Irish border have to be pretty much identical, mainly to deter smuggling. Whatever the British choose to do, the Irish Republic does not want to leave the European Union. Whether we think Eire would be better off outside of the EU, as some suggest (it would not), is neither here nor there; they are not leaving the EU any time soon. So this means that, in order to maintain cross-border market-harmony, Northern Ireland has at least to stay in the EU Customs Union.

Northern Ireland must share market conditions with Eire

But if the UK opts for a ‘Hard Brexit’, that means, by definition, detaching from every feature of the EU, including the Customs Union. So to maintain the harmony with Eire, Northern Ireland would have to leave the UK. But that cannot happen either, as the GFA also guarantees the right of Unionists to remain British if they so wish. The majority of Unionists remain ‘loyal to the crown’, so to speak.

One idea that is sometimes floated is that Northern Ireland should remain in the Customs Union while the rest of the UK does not. Sadly, this also looks unworkable, as there would have to be border controls between Northern Ireland and the British mainland. That would violate Article VI of the Acts of Union of 1800. The whole of Ireland, under these Acts, became part of the UK, and, despite the secession of the rest of the island in the 1920’s, the Act still remains in effect in the north today. Article VI created a British customs union, one that would be violated by introducing border controls between Northern Ireland and the rest of the UK. Meanwhile, not imposing such border controls would defeat one of the stated objects of Brexit, which is to “take back control of our borders.” It is a nonsense platitude anyway, but the pertinent point here is that anyone wanting to sneak into the UK could just enter unchecked through Ireland.

Border tensions

A hard border within Ireland will cause a lot of anger for social reasons too. Nationalists and Republicans will be rightly outraged if free access to their fellows in the south is curtailed, and will feel that they are being forced back under direct and exclusive British governmental control. It is therefore no exaggeration to suggest that there is a real danger of a ‘Hard Brexit’ restarting war in Northern Ireland.

These problems would be largely avoided if the British Government opted for a ‘Soft Brexit’ i.e. to stay in the Customs Union. But of course, that looks a remote possibility at best too. The lunatic fringe of the Tory Parliamentary Party, and the extremist Brexit supporters around the country, appear unwilling to tolerate anything less than a complete British severance from the EU, and any attempt May makes to move away from that will trigger a rebellion in Parliament, and probably the collapse of her Government.

One cannot please any of the people all of the time

Hence the ongoing deadlock over finding an Irish border settlement. It is almost impossible to find a solution that will please enough people, and is just one of the many reasons why the ‘Brexit genie’ should never have been allowed out of its metaphorical bottle. The Conservatives created this mess, largely for internal party reasons, so it is right that they should be the ones to have to clean it up. But it is also wrong that they are, because they show such profound inability to carry the process out in a competent fashion.

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