The Incompatibility of Brexit with an Irish Border

During the referendum debates over four years ago I thought hard about the incompatibility of an Irish Border with Brexit vis-à-vis the integrity of the EU single market. When the result to leave the EU emerged, I wondered what plan the politicians had devised to overcome this conundrum?

It is now painfully obvious that those politicians who shouted loudly and trumpeted victory had given little or no thought to the solution; Boris Johnson’s political hyperbole during the General Election campaign was that the Brexit withdrawal deal was ‘oven ready’.

But the fundamental challenges are these:

• The European Union’s Single Market allows free movement of goods, services, capital and labour. These are key ingredients of the pillars of the EU.  Therefore, once a state is outside the EU, a hard border is created between the EU and that other state.  That is not something that can be changed without undermining the integrity of the EU; we knew that and we signed up to it.
• The United Kingdom is not united geographically. The Irish sea divides Britain and Ireland.  When the Republic of Ireland was declared upon the ratification of the Anglo-Irish Treaty in 1922, the province of Ulster voted to remain as part of the United Kingdom. For many years there was violent disagreement between the nationalists who believed in a united Ireland and those who wished to stay in the UK.  The Good Friday Agreement in 1998 saw an end not only to most of the violence but also to border checks in Ireland which were anathema to the Republicans.

There is the dilemma.  On the one hand, the European Union must have checks at its borders;  on the other, it is quite inconceivable that there can be a border in Ireland if peace and good order is to be maintained. It would torpedo the Good Friday Agreement.

During the negotiations in 2018 the EU suggested that perhaps there might be checks in the Irish Sea but the then Prime Minister, Theresa May, observed that it threatened the constitutional integrity of the UK by creating a customs and regulatory border down the Irish Sea and ‘no UK prime minister could ever agree to that.’  Her idea of a backstop where the UK remained aligned to the single market until the EU trade deal was done was voted down.

After Boris Johnson’s appointment as Prime Minister he promised to ‘get Brexit done’.  He met with the then Irish PM, Leo Varadkar and agreed some checks in the Irish Sea for goods moving between the mainland and Northern Ireland.  Not everyone at home was happy, but he then fought a General Election and gained a substantial majority.

It is a matter of history that Brexit happened and trade talks began.  Covid-19 had already reared its ugly head and was sweeping across Europe soon to reach these shores knocking everyone completely off guard.

Then, only very recently, Boris dropped a bombshell with the introduction of the UK Internal Market Bill.  It was introduced in the House of Commons by the Secretary of State for Northern Ireland, Brandon Lewis, who explained “This does break international law in a very specific and limited way” – politicospeak for breaking the law and our international treaty obligations.

So now the UK seeks to override Boris Johnson’s withdrawal agreement that specifically created a regulatory border down the Irish Sea between Northern Ireland and Great Britain.  Foreign Secretary Dominic Raab endeavoured to justify this volte face by saying “We cannot have the EU seeking to erect a regulatory border down the Irish Sea between Northern Ireland and Britain.  It is contrary to the Northern Ireland Protocol and the Good Friday Agreement.”

But nobody is buying that pitiful explanation.  The very idea of the United Kingdom reneguing on its Treaty obligations has been condemned on all sides by former Prime Ministers, former Attorney Generals and even Tory grandees. Sir Jonathan Jones, permanent secretary of the government legal department immediately resigned.  He has been followed by the distinguished Lord Keen, Lord Advocate for Scotland, and today barrister Amal Clooney quitted her role as UK envoy on press freedom describing the government’s actions as ‘lamentable’. Senior politicians in the United States indicate there is no way Congress will approve a US/UK trade deal if the UK undermines the Good Friday agreement.

The government faces the unenviable task of being overwhelmed with the perils of Covid-19 whilst at the same time digging itself an ever deepening hole over a Brexit trade deal with the EU.

We are left with this: the United Kingdom must not break its international treaty obligations; there cannot be a border on the island of Ireland for more reasons than it is necessary to spell out here.

Something must give.  Will anyone be bold enough to suggest that while Covid-19 overwhelms Europe, pride should be swallowed and we should at least revert to Theresa May’s suggestion that we align ourselves to the single market until the peril has passed and normal life is restored?