At last! Only two months later, a reply from Theresa May to the joint concerns of FM and DFM on the impact of Brexit. Searching for detail in the Nolan “scoop” I can only find this on the BBC website.
In her letter, Mrs May says the future of the border is “an important priority for the UK as a whole.”
She also says she recognises the “unique issues” raised by the Single Electricity Market and that resolving these will be a priority.
However some of the specifics of the Foster-McGuinness letter are not addressed.
“Some?” Try none. Is this good enough even for Arlene Foster?
Perhaps they’re keeping their powder dry for the meeting I now learn will take place next Monday between the heads of the three devolved administrations and the Prime Minister. Will May have substance to impart or will she still be in listening mode? Will Foster and McGuinness get their act together and can all three devolved governments be able to put united pressure on May to give them seats at the Article 50 table? Stand by for fireworks from Sturgeon. .
The same listlessness is adopted in reporting the Assembly’s Brexit debate initiated by SDLP leader Colum Eastwood. After losing by a single vote, not even the DUP’s whipping stirred them.
Contrast that with messages from the academics. Akash Paun of the Institute for Government warns of the threat of constitutional crisis if the devolved governments are not given more than “consultation” but a seat at the table.” Not much sign of crisis from the DUP over this or interest in Enda’s Civic Forum on 2 November. What’s the betting on him getting more out of May at the EU Council later this week.?
Michael Keating, director of the Edinburgh- based Centre for Constitutional Change has a not so cheery message for all those in the Assembly and others ( south of the border and like me), who are searching for ingenious ways to square Brexit circles.
The European Economic Area (consisting of the EU plus Norway, Iceland and Lichtenstein) is a single market but not a customs union. This means products assembled in the three EEA countries from raw materials and components coming from outside the EEA, which are then exported on to other EEA states (including the EU), are subject to rules of origin. Rules of origin determine how much of the product was made within the EEA and how much imported, to decide what tariffs are due. Applying these rules is costly to business and governments, and requires the scrutiny of trade.
All of this means that, if Scotland and Northern Ireland were to remain within the single market and customs union, they could not simultaneously be within the UK economic union. There would be a hard economic border between them and England and Wales; to do otherwise would create a gap in both economic unions through which goods, services and people could flow uncontrolled. Such tariffs as would apply to trade between the UK and Europe would apply to trade between the rest of the UK and the two devolved territories. If Scottish and Northern Irish firms could export services freely around Europe, they could not do so with the rest of the UK as long as it was outside the single market. If Scotland and Northern Ireland were within the customs union, then trade with England and Wales would be subject to rules of origin and customs checks to ensure that the appropriate duties had been paid. The only precedent I can find in Western Europe is the Basque system before 1820, allowing the Basque provinces free trade with the world but imposing tariffs on trade with the rest of Spain.
Even were it economically viable, such as system would not be acceptable either to the UK or to the European Union. For Scotland, it would almost amount to independence, raising the question of why it did not just go the whole way. In Northern Ireland, barriers with the rest of the UK would be unacceptable to the unionist community and undermine agreement about consensus being needed for a change in the status of the province.
There is one issue on which compromise might be possible and that is free movement of people between the two parts of Ireland. The UK and Ireland could sign a bilateral agreement allowing free movement and rights to work for citizens of their respective countries, based on the longstanding Common Travel Area and other provisions. It would not allow free movement of European citizens in and out of Northern Ireland. Nor would it have any relevance for a non-independent Scotland, where free movement across the border with England is not at issue. It might be useful in an independent Scotland, to maintain a free flow of people with both the UK and Europe.
So there are ways in which the Irish border could be kept open for people, but not for goods and services. Even were it economically practical, the Republic of Ireland has no power to negotiate free trade with other countries. That is the responsibility of the European Union as the customs union. Even were some ingenious way found to allow goods and services to be traded tariff-free between the two parts of Ireland, rules of origin and checks would be required to ensure that the provision was not being used as a back-door for firms in the rest of the UK to use Ireland as a backdoor into the single market. There are strong political reasons to find an intermediate solution in Scotland and to keep the Irish border open. There is a feeling that, since the UK has a flexible constitution and we have managed to muddle through in the past, something will be found. So far, however, nothing has been.
Michael Keating is Professor of Politics at the University of Aberdeen, Director of the Centre on Constitutional Change and Senior Fellow in the UK in a Changing Europe programme.
“Keeping the Irish border open” is becoming as elastic a concept as “Brexit means Brexit.” Last time I looked, it meant no huts or sandwich boards on the border line, but digital customs charging and random inspections elsewhere en route, and keeping your passport on you. In the game of constitutional chess with Nicola, Jim Gallagher’s move is far from checkmate but it might still affect the board…
Wicklow- born Lord Haskins offers so easy solutions..
.A possible compromise might be for Northern Ireland to stay in the single market and create the border controls between the two islands of Great Britain and Ireland – water is a more effective barrier. The north could retain a federal link within the UK, but the links would inevitably weaken; and a possible shift towards Irish reunification would alarm unionists, who would fiercely resist such a proposal.