What is a hard border and what is a soft border? Of all the issues thrown up by the UK exit from the EU the easiest to resolve was and is the land border between Northern Ireland and the Republic of Ireland. Both territories comprise the Island of Ireland, with its own distinct economy, that is dominated by the agricultural sector on which Great Britain is reliant. There is a shared history and family links cross the border, extending across the Irish and Celtic Seas to the other Island. The troubled relations between the two Islands has never been better. The Good Friday Agreement [aka the 1998 Agreement] that brought peace, also brought the time and space to foster a greater understanding of the other side, to a degree of reconciliation that many could never have imagined.
This is not surprising to those of us brought up in the exiled Irish communities littered throughout GB. It seemed that once settled on John Bull’s island, it did not matter what Province you came from or what your religious belief was. You were all just Irish travelling the one road to who knows where. The fact that 25% of the population of GB claim at least one Irish grand-parent results in an unique relationship that transcends politics. This is reinforced by the free travel and interplay facilitated by the Common Travel Area. Both Islands are outside the Schengen Area, which helps maintain the CTA into the future, just so long as there is joint-working to police the external border of the CTA. What could go wrong? The British and Irish governments are committed to maintaining the status quo, with the acquiescence of all the EU institutions. The fly (or flies) in the ointment is that the EU is legalistic and mechanistic; and blinkered with Eurocrats focused on the Project of ever greater unity and integration, along with expansion. This is rather conflicted because they are inconsistent, like reeds blowing in the wind.
With everyone seeming to sing from the same hymn sheet it should just have been a matter of addressing the practical issues to ensure the frictionless border enunciated by David Davis. The new trading agreement between the EU and UK would remove any economic political barriers. But instead of prioritising the negotiation of that trade agreement, it was kicked into the long-grass by the EU who insisted that its three concerns of citizen’s right, the financial settlement, and the Irish border must be settled first before any consideration be given to trade and future separation issues. The perception that the financial settlement and plugging the hole in the current EU budget was their main concern is well founded, but it was the easy to resolve Irish border concerns that ended up taking centre stage and threatening progress. This was a triumph of the Political over the Practical. The cart had been deliberately put before the horse to influence the final outcome.
Leading up to the Referendum the spectre of a return to the hard border of the Troubles was a component of Project Fear. Vote for leaving and the result would be army patrols and watch-towers on the border, with rigorously controlled official check-points and long queues of traffic resulting, and the destruction and obstruction of minor crossing points. The main proponent of this ‘disaster’ was Sinn Fein as their project for reunification looked to be in jeopardy by Brexit. They orchestrated demonstrations on the border at main roads by setting up mock check-points and obstructing traffic that was meant to recreate the past. SF maintain that they are not trying to take advantage of the Brexit process in order to force a referendum on reunification. Nor did they collapse the power-sharing NI Executive a year ago to force the adoption of their own agenda. Nor do they tell their own supporters that they are against abortion when all the evidence says they are pro-abortion. SF lie bigtime.
Even during the Troubles the border was porous as it weaved its way through open countryside, with the emphasis on open. It was impossible to fully control. It was not a lethal border, unless you were patrolling it. For the safety of the military, helicopters were used to transport them to the watch-towers in bandit territory and no-go areas. Smuggling of contraband was rife. This was not a hard border and never has been, and never will be because whatever the rules and regulations they will be ignored by people on both sides of the border. The reality is that the border cannot be controlled. Dublin and London know that, Brussels does not accept that because it threatens the integrity of their Union and that will never do.
Countries have their emblems. Many European countries favour the cockerel or the eagle. The EU has not purloined any such symbolism yet, but if it did it should be the ostrich, with its head buried in the sand, and inviting the proverbial and inevitable kicking.
Examples of hard borders would currently be on the Korean peninsular, or in the past the Iron Curtain between NATO and the USSR/Warsaw Pact or the Berlin Wall separating the east and west of the City. These are/were lethal borders. The controls on the N1 between Dundalk and Newry were never like check-point Charlie in Berlin.
Irish politicians of all parties in the Dail have followed SF in demanding binding guarantees for everlasting continuation of the GFA even if it means NI diverging from GB. Of course the DUP will have none of that, and if truth be told they have the sympathy of many nationalists. The call for NI to have a special status, a sort of semi-detached EU status, is politically driven and encouraged by the European Commission. This has proved a stumbling block to negotiations during phase one of Article 50 of TEU. This also obstructed progress towards the final solution. That solution is that the EU must recognise the special status of the Republic by virtue of its membership of both the EU and the B&I CTA.
In practical terms the British proposal recognises that people on both sides of the border will continue to live their daily lives undisturbed and do whatever is necessary by disregarding the rules. So, to maintain the free flow of people, the functioning of small and medium businesses that only trade within the Island [and by extension to GB but not over to the European continent] should be exempt from the application of tariffs – affecting about 80% of trade. Bertie Ahern (former Taoiseach) agrees that Dublin should turn a blind eye. This leaves Brussels in a collective state of apoplexy.
The impasse was overcome by the EU-UK agreement of 8th December, which is a diplomatic fudge, to enable progress. It is contradictory and enables both sides to claim success, but it has sown the seeds of dissent.
With the best of intentions Theresa May tried to alleviate the concerns of UK citizens resident in EU counties and of their citizens resident in the UK, by reaching agreement on citizen’s rights prior to invoking Article 50. This was rebuffed by Angela Merkel on the grounds that nothing could be agreed until everything is agreed. The same principle is applied in the Commission’s Report of the 8th December. The preamble on page one states – “This report is put forward with a view to the meeting of the European Council (Article 50) of 14-15 December 2017. Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full detail. This does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship.” The report then follows. This is significant, as the above statement would carry more weight if it was contained within the actual report. It might also explain the Irish reaction, as their politicians pay scant regard to the preamble in the Irish Constitution. And in fact the statement is repeated at paragraph 5 in the Report.
So when David Davis says the Report is a statement of intent and the financial settlement is dependent on the final withdrawal agreement (which will have the status of a treaty) and progress on the future trade agreement – he is correct. This has not stopped him from being admonished and challenged by Leo Varadkar and Simon Coveney who have been very agitated and vocal in drawing attention to paragraph 46 of the Report. That is – “The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and the United Kingdom.”
The following paragraphs are also of particular concern :-
“49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”
“50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s business to the whole of the United Kingdom internal market.”
“54. Both Parties recognise that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area), while fully respecting the rights of natural persons conferred by Union law. The United Kingdom confirms and accepts that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under Union law, in particular with respect to free movement for EU citizens.”
“56. Given the specific nature of issues related to Ireland and Northern Ireland, and on the basis of the principles and commitments, set out above, both Parties agree that in the next phase work will continue in a distinct strand of the negotiations on the detailed arrangements required to give them effect. Such work will also address issues arising from Ireland’s unique geographic situation, including the transit of goods (to and from Ireland via the United Kingdom), in line with the approach established by the European Council Guidelines of 29 April 2017.”
Make what you want of all that, the politicians certainly are. The UK seems to have committed to certain actions even in the event there is no final withdrawal agreement. But, tacked on the end of the Report is a paragraph that supports the interpretation and position of David Davis. That is:-
“96. This report is put forward with a view to the meeting of the European Council (Article 50) of 14 and 15 December 2017. It is also agreed by the UK on the condition of an overall agreement under Article 50 on the UK’s withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangements.”
That just about copper-bottoms the agreements and commitments, which are most certainly conditional and have no legal standing. Well done David, and it explains the reaction from the Irish government and the European Parliament. A European Commission spokesman confirmed that the joint report was not legally binding until formally incorporated in the final Withdrawal Agreement. This prompted the EP’s Brexit negotiator, Guy Verhofstadt, to demand the Report be translated into legal text as soon as possible before proceeding with the next phase. A Green group MEP accused the UK of behaving like gangsters. The Irish government described David Davis’s comments as bizarre, saying that’s Britain’s commitments on the border issue was much more than legally enforceable. The EP voted by 556 to 56 to allow the Brexit negotiations to progress to phase two. The European Council then agreed to proceed to phase two with the proviso; “It underlines that negotiations in the second phase can only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible.”
There may be trouble ahead. The situation smacks of duplicity and reminds me of 1916/1917, with the contradictory McMahon – Hussein correspondence agreement for an independent Arab state, the Sykes – Picot agreement for carving up the Ottoman Empire with British and French spheres of influence, and the Balfour Declaration on the establishment of a Jewish national home in Palestine. And we are still dealing with the consequences of that one hundred years later. The factor in common is expediency.
This is not the only border issue affecting negotiations. The EU have granted Spain a veto over any future trade and transition agreement that relates to Gibraltar. Recently Deputy Chief Minister, Dr Joseph Garcia, has said the EU position on Gibraltar is totally unacceptable. He condemned the EU for its shameful treatment of its citizens in Brexit negotiations in an escalating dispute that threatens to derail the talks. He spoke of discrimination by the EU against the pro-European people of Gibraltar, saying the rights of residents and tourists to cross the border must be protected.
The UK government has also accused Brussels of taking an inconsistent and contradictory position on Gibraltar as last year’s April guidelines had made clear that the Article 50 negotiations applied to British Overseas Territories. Now they insist that the UK must come to an arrangement with Spain. The border with Spain may be narrow and it is a hard border as Gibraltar is outside the Schengen Area and Customs Union, but it is heavily used with up to 13,000 workers crossing each day to access employment on the Rock. Those workers do not believe their interests are being looked after by the Spanish government.
There are also border issues relating to the UK Sovereign bases in Cyprus. Those issues are dormant at the moment but could come to the fore at the last minute to threaten a final agreement.