The complexities of Brexit could overwhelm the British political system. For all Ireland, a bigger role needed for the GFA structures

.As the “all island ” civic forum meets in Dublin bereft of unionists, a high powered think tank The UK in a changing Europe warns:

“Brexit has the potential to test the UK’s constitutional settlement, legal framework, political process and bureaucratic capacities to their limits – and possibly beyond..

And they suggest the repatriation of decision-making in key policy areas including agriculture, the environment and higher education to Britain from Brussels could affect the balance of power between Westminster and the devolved parliaments – another major constitutional headache for politicians.

In the section of its report on the devolved nations, they have no magic bullet..

The least constitutionally disruptive means by which the divergent policy interests of the devolved nations could be accommodated within the current state structure would be for Scotland, Northern Ireland and Wales to take advantage of the repatriation of competences, along with existing powers, and to shadow EU, rather than UK policies in some fields.

A step on from this is the possibility that Scotland and Northern Ireland might remain part of the EU, at least for some purposes, while remaining within the UK. All sides are agreed that closing the Irish border would be a serious mistake and that some accommodation will have to be made. This could take the form of keeping the historic common travel area and some crossborder institutions. It is difficult, however, to envisage Northern Ireland being within the Single Market and the rest of the UK being outside it without controls on trade in goods and services between Northern Ireland and Great Britain.

The most radical option, permitting those nations which voted for remain to do so, whilst the rest of the UK leaves, is secession from the UK. Scotland would become independent, and perhaps either continue as a successor state to the UK, or more likely join as a new member. Northern Ireland could retain membership through unification with the Republic.

There is no clear resolution to any of these issues but Brexit will have a big impact on devolution. It may lead to a recentralisation as the UK reconstitutes itself as a sovereign polity; or to further decentralisation with the devolution of EU competences. In either case, the process will be difficult and controversial.

In the Indo, former taosieach John Bruton discusses the particular complexities that relate to Ireland when the UK and the EU diverge. As we have already noted, this calls for a beefing up of the British-Irish institutions of the GFA. He also recommends a special “Ireland clause” for the “Great Repeal Bill.”

The problem for Ireland is that the Great Repeal Bill will also provide a mechanism whereby the UK can then quietly repeal, or amend, these EU laws, one by one, without reference to the EU.

This will probably be done by ministerial orders, which cannot be amended, and are rarely even debated.

If these orders change the standards to be met on the UK market from those on the Irish/ EU market, this could erect an overnight and costly barrier to trade within Ireland

Of course, it will take many years for UK ministers to go through every directive and regulation, every amendment to them, and every court judgment interpreting them, and then to decide on which to keep and which to replace.

But all this could be done behind closed doors, under pressure from special interests.

And then the change could be made by ministerial order, with no discussion with Ireland or with other EU countries, whose businesses could be affected.

Mrs May has promised this process will be subject to “full scrutiny and parliamentary debate”, but this seems impractical because so many EU laws are involved.

And the scrutiny and debate, if any, will be confined to Westminster.

She said nothing about scrutiny in the parliament in Edinburgh, or in the assemblies in Belfast or Cardiff, let alone any consultation with Dublin.

So much for 60 years’ worth of past EU laws, what about new EU laws after the UK has left? If the UK decides not to amend its laws in line with the new EU versions, this will immediately create new barriers to trade. This problem will get more and more severe as time goes on.

The British/Irish Intergovernmental Conference, set up under the Good Friday Agreement, will have to take this problem on board.

It will have to meet very often indeed to keep up with the rapidly moving EU regulatory agenda. At the moment, I fear it is not equipped for the task.

A third problem will be divergences in the interpretation of the meaning of EU/UK laws between EU and UK judges, even where the texts are the same.

The UK Supreme Court will probably interpret some laws differently from the way the ECJ will interpret them. There are differences in judicial philosophy between the common and civil law traditions.

So the exact same regulation could be interpreted in one way in the North and in another way in the Republic.

What can we do to prevent all these disruptive and costly trends?

In my testimony in the House of Lords, I suggested that the proposed ‘Great Repeal Bill’ contain a special ‘Ireland clause’, which would require any UK minister who is contemplating using its powers to make any unilateral UK amendment to an existing EU/UK law, to give public notice of his intention to do so, and formally consult both the Irish Government, and the Northern Ireland Assembly.


Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London

  • Kevin Breslin

    I don’t get that people think there are no Unionists at this forum … the DUP and UUP are not the sum of pro-Union people from Northern Ireland.

    Even taking aside that someone like Naomi Long may be pro-Union but not a big U unionist, the body could have multiple civic Unionists, even big U ones from civic organisations in attendance like The Ulster Farmer’s Union (a body which was Brexit referendum neutral) and the other bodies there.

  • Korhomme

    Suppose that NI remains within the UK and within the EU for trade: won’t it mean that when the rest of the UK leaves, and tariffs are imposed, that NI will be in a very strange place?

  • Superfluous

    I think NI is going to be in a very strange place regardless. A hard border will be very strange (and politically explosive) and no border will be unworkable outside of the customs union.

  • OneNI

    ‘High powered’ but unheard of think tank

  • Kevin Breslin

    I think that’s highly unlikely, but I’d love to see an attempt at a First and Deputy First Commissioner for Northern Ireland.

  • Croiteir

    This is the problem that Sturgeon has with reference to Brexit and independence. If She does not win her independence referendum within the next 2 years, (and why would May help her with making this deadline?), she is stuffed as once outside the divergence between UK rules and regulations and the EU’s will grow, making the independence vote more difficult to achieve in terms of economic arguments, (although I grant you the sentiment and resentment will grow), and for the north the increasing strain between the rules and regulations makes me feel that a soft border is unsustainable. Unless of course that for trade Ireland is treated as one economic area. I cannot see unionism facilitating this as it would be a significant dilution on sovereignty. Or will loyalty to the half crown supersede loyalty to the Devil’s crown.

  • Kevin Breslin

    I would not say unworkable, impractical and difficult. The border will be a straight jacked for insular (GB only) British nationalists who think in terms of raising up the drawbridge to inward migration or common regulation practices with trading partners.

    Even Daniel Hannon an arch unapologetic Eurosceptic has come out and said the Irish Border issue has pretty much been opened up again.

    I think the British should take a leaf out of the Irish book and have their own Brexit forum on matters, including one on the Irish border.

    I also think this entire debate should be replayed on BBC Parliament channel too.

    Advocates of Grassroots Go seem awfully quiet about public ownership of the referendum decision that they made.

    Now why is that?

    Why is democracy confined to a once in a generation or a once in five year vote?

  • Kevin Breslin

    Ireland was always one economic area, just as Northern Ireland is, Britain and Ireland is, and indeed Britain, Ireland, the Faroe Islands and Iceland are (the North Sea Isles may not have a political dimension to it) …there was always a capacity for someone to cross a border or an island to work and buy goods.

    Even WTO rules, considered the worst case scenario (assuming no irrational rules such as sanctions are imposed) will not stop a cross border economy, only add legal and financial restrictions to how that can happen.

    I do not buy the rational that the EU or the UK would be able to stop Irish unity by regulatory or economic divergence, arguably that may actually increase the will for Irish unity. West Germany and East Germany had much more divergent economies, and they lasted less time than Northern Ireland has. It comes down to the will of the people here, no matter what the EU, UK or ROI do.

    I don’t think for a second a pro-EU UUP person or a anti-EU TUV person or or a pro-EU SDLP person or an anti-EU RSF person will have moved an iota from an entrenched viewpoint on the constitutional question overall simply because of Brexit.

    What may change, and this is critical to the constitutional question is their respective answer to the Question … What kind of Northern Ireland do you want to live in? What kind of Ireland do you want to live in? respectively.

    And there will be overlapping views even there.

    It will not remove the border, but regardless of NI’s connections to the UK or ROI’s connections to the EU, they do define it.

    If there is a will, there is a way … but let’s be honest political wills seem smaller than they claim to be put under a big spotlight. And political wills are not simply the wills of politicians, but every single person’s willingness to change.

    We know what the will for Irish unity is at the moment. It’s not huge.

    Fiscal issues, Rights issues, Cultural issues, Connection issues and a broad range of other political issues etc. need to be faced up to.

    What Northern Ireland needs is to own the Constitutional questions, own the Border question, own the question of a European and indeed Global dimension in its future and use whatever means. Really take on board the challenges of the change its people want to make.

  • Superfluous

    The problem the London government might have is expense – having a hard border and checking the coming and going of goods will require manpower, hardware and a ton of logistical management – and it will also lead to all sorts of opportunity for crime (and possibly a return of Duty Free, yay!). This is a region that already gets a £10bn annual subvention. This is a British Government which is already borrowing too much money to fund its state – and is looking likely to get further hits to its tax intake (especially as City of London firms route business elsewhere.) Northern Ireland is a millstone around Brexit Britain’s neck.

    Regardless of Unionist feelings, in order to keep down costs (the path of least resistance) is going to be treating Northern Ireland differently to the mainland of the United Kingdom. Pragmatism will come into play over dogmatism. It has to, surely?

  • Kevin Breslin

    On the thread topic, I do agree entirely that the Good Friday Agreement structures have a critical role in mitigating the worst of Brexit in both parts. They may need reforms.

    1. Gibraltar should be included either as a full member or at the very least an observer state in Strand 3 bodies. Seems that change could have cross the board support but the matter has not been mobilized.

    2. I agree with Flanagan on divergence, but the issues and problems with the border are bilateral … they affect the UK too … there is no competitive advantage in change one side or the other without consultation and that applies equally true to the Republic of Ireland with the UK, as it does the UK with the Republic of Ireland.

    3. The Republic of Ireland effectively has to adopt the position of the UK’s honest broker with the EU, and the EU’s honest broker with the UK. To some extent Northern Ireland becomes the honest broker between the UK and the RoI.
    I know that goes against nationalistic sentiments on both sides of the Orange and Green debate but the practical issues to trade make alternatives nigh impossible.

    For trade to function between the UK and Europe there needs to be treaties and memorandums of understanding, dispite divergent ways … not the sort of ad hoc “premonitions” we have seen from Vote Leave.

    4. The issue of free movement of people is minor, freight issues needs to be at the top two issues of the agenda, alongside rights both human and EU citizen rights and… if the UK wants to control people moving within Ireland, it may as well rip up the Common Travel Agreement over a measly net 5 newcomers a day, even though EU law already allows the ROI to monitor suspicious people whether they are from the EU or not.

    If additional divergent security measures or additional bureaucratic labour measures are implemented on EU citizens (even if Irish are exempt from them) within the UK, the same measures may have to be implemented on UK citizens in the Republic of Ireland and elsewhere in the EU.

    5. There was no optimal freight border either before the joint membership of the EEC, there are still some freight issues cross border even now but they are reasonably manageable. Customs barriers are certain, Tariffs are not.

    6. Rights may require some divergence between Northern Ireland and England, that already exists in Northern Ireland already on some issues. It remains to be seen if Westminster plans to heavily “mission creep” upon Scottish and Northern Ireland and perhaps Welsh devolved legal matters. There were some signs of restraint under direct rule.

    7. Subsidy issues are clearly a national matter, however there is going to have to be cross island agrifood arrangement in place for the specific issues of businesses that. Germany & Austria and Switzerland & Liechtenstein have these issues, if the UK and Republic of Ireland share their maturity we should manage.

    8. There needs to be a clear understanding between both governments as to what happens the Irish border in the wake of Article 50’s introduction to 2 years down the line. If the UK is to adopt WTO tariffs, implementation of logistics on the Irish border have to be faced up. No more hand-waving, or premonitions of free trade arrangements.

    9. The willingness for EU nations for special status is polling around 40-45% in both France and Germany, compared with 32% against, and the rest unknown. Whether or not Northern Ireland gets special status we should take advantage of the good will there.

  • Korhomme

    No border say St Theresa and Enda. But they have to convince 26 others of that; many won’t have forgotten being ‘handbagged’ and of the UK always demanding ‘special treatment’; they may want to make an example of UK pour encourager les autres. Rhetoric is one thing, the possible another.

    So, no border. But are goods in NI traded at EU tariffs or BrexitUK tariffs? If I’m in NI and order something from GB will there be taxes to pay? Or can I order from the Republic as if I was in the same country? I can’t see any obvious way round these conundrums.

  • Nevin

    OneNI, it’s based at Kings College, London, as is the Jean Monnet Chair for Europe in the World. In other words, it might not be Brexit neutral.

  • Croiteir

    One the first paragraph, I think you play up the cost to the British exchequer too much, it is not 10bn as a significant proportion of that figure is made up of the regions notional share of the cost of administration, military and other sundries, does not take account of the revenues and their taxation of British based companies and so on. It is less than that and, from a British point of view a worth while investment.

    On the second paragraph. This is the one nation Tories, they administration that has set its face against those truculent nationalists seeking to dismember the union, (o the irony), can they back down now? No chance. They have painted themselves into a corner on this. Time to sing the old protest song – all together now – Rule Britannia etc

  • Croiteir

    Kevin, not sure what the point of the first paragraph is, especially the Faroe Isle bit, but if it is just a way of saying that people always traded across regions and countries that’s fine. Just say that. Otherwise please clarify.

    I don’t think that I argued that the EU or the UK was trying to stop Irish unity by regulatory or economic divergence, I was merely pointing out the problem caused by divergence and the fact, to my mind anyway, no one has addressed this issue satisfactorily.

    On the point about the constitutional question. I am not so strident but I broadly agree. I also have doubt about the impact on the constitutional position your query about what kind of NI (sic)/Ireland you want to live in. That is asked at each election.

    As for the will for Irish unity not being huge, it is as huge as the prospect for it happening, by that I mean the actual chance of it occurring affects the response, as the possibility grows the probability will also.

    As for the rest – NI (sic) will never own any of those – it may be ceded them, the GFA is a typical example of this. The border poll is solely under the gift of the British in the persona of the Proconsul, oops, sorry, the SoS.

  • Kevin Breslin

    What happened to that Mantra … “Europe is not the EU”.

    I’m pro-EU, an my Europe doesn’t have a hole where Switzerland, a coast in Sweden, or end before the Urals or Caucasus.

    To me I base Europe more on UEFA’s map not the EU’s. or even the Council of Europe’s

  • Kevin Breslin

    I mean it could be treated for arbitary political purposes as an economic area.

    In terms of a North Sea Economic Zone … you do see it exist in a way for some industries.

    I think Icelandic companies buy Bauxite from the Irish and sell Aluminium to the Brits who sell Icelandic and Irish cars made from it … so I guess that’s an interesting supply chain.

    It’s not all fish with Icelandic trade … well it’s mostly fish, but not all.

  • Nevin

    Kevin, I’d say that the JMCE Europe is the European Union – and its ever closer union.

  • Angry Mob

    The path of least resistance is staying within the EEA and possibly joining the EFTA as an interim solution, which will make the border question a red herring; likewise the city of London losing its passport rights.

    Something that the PM and Greg Clark, business secretary may be already hinting at.

  • Croiteir

    Only if others would allow it Kevin, but would not see it happening.