There is no way for NI to remain in the EU after Brexit. Alternatives exist, but they all come at a price.

Last week, Kevin O’Rourke wrote in the Irish Times:

It is logically coherent, if lunatic, to argue that Ireland should quit the EU and join the UK customs union. (Leaving the EU would on its own obviously not suffice to avoid a North-South border: our exit from the EU would have to be of the red, white, and blue variety.)

It is also logically coherent to argue that Northern Ireland should remain within the EU, and I wish it would. That seems like something worth arguing for. But it is logically incoherent to argue that if we remain in the EU and its customs union, and the North leaves both, there can be some special deal that will avoid the need for a customs frontier on the island.

Those who say Ireland should leave the EU know they are in a small minority. Many will not come out and argue for their position particularly strongly for fear of being laughed out of court. The evidence that our prosperity is based on EU membership is overwhelming. Still, expect them, in the months and years ahead, to claim that the return of a customs frontier somehow shows that “the EU” has let Ireland down.

The Brexit campaign shows that such dishonesty can pay. Which is why it is so important that everyone understand that if the North leaves the EU and its customs union, and we remain inside it, there is nothing that the EU or anyone else can do to prevent the return of such a frontier.

The article suffers from muddled thinking when it proposes solutions though. It is not legally possible for NI to remain in the EU while it also remains part of a post Brexit UK. Only sovereign states are members of the EU. This is not a matter of geographical exemptions. It is a matter of political representation, sovereignty and treaty law.

The Greenland precedent is not helpful – in that case Greenland gained an exemption from EU law while the sovereign state (Denmark) remained a member. If that were to be applied to Brexit, then England, Scotland and Wales would have an exemption from the EU while the UK as a whole remained a member, but only in order to represent the people of NI. Such an arrangement would be preposterous.

NI could remain de facto part of the single market but only by a) breaking the UK internal market instead and b) submitting to fax democracy, where NI would have its laws written for it in the EU without any representation at the table (short of what the Irish government might provide gratis). This would require all EU competencies to be devolved to NI, including employment and immigration law. It would likely also require full fiscal autonomy. This would not be devolution, but something closer to Gibraltar-style internal autonomy. Given how deeply the Irish government would then be embedded in the domestic legislative process, it would probably be both simpler and more honest to just have a united Ireland. At least in that scenario, EU agricultural and structural subsidies would continue (but the block grant would vanish).

An easier sell would be to keep NI de facto inside the EU customs union by shifting the RoI’s customs frontier to Larne. This would be an arrangement similar to that of Monaco, which has no official treaty with the EU, but which by bilateral agreement allows France to treat Monaco’s sea border as a French border for all practical purposes. This of course means that the UK’s internal customs union would be severed instead, but such arrangements have precedent. Büsingen am Hochrhein is a small exclave of Germany entirely surrounded by Switzerland, and has long been treated as part of Switzerland for customs purposes. Whether this would be sufficient to save the cross-border economy would depend on how generous and how quickly the new EU/UK free trade deal turns out (don’t hold your breath).

The big unknown is the Common Travel Area. It is just possible that the EU may allow it to continue with the current spot check enforcement regime, considering that the UK’s immigration law is likely to be stricter than the EU’s for the foreseeable future. But this would require a generous helping of goodwill from all sides. Alternatively, it may be possible to move the RoI’s hard immigration frontier to Larne.

None of the above are cost-free options. The emotional cost to Unionists in particular would be heavy no matter what sort of deal is struck, but any arrangement that keeps an open border would surely be cheaper and less disruptive than the default alternative.

A united Ireland is as far off as ever, for the usual well-worn reasons. That may change if after Brexit the UK decides to alter economic policy to NI’s disadvantage (e.g. by cutting agricultural subsidies) or if Indyref2 comes to pass. But NI is still incapable of supporting itself, and it is proportionately less of a burden on London than it would be on Dublin (which is still in primary deficit, let us not forget).

The best case scenario for Ireland (north and south) remains for Brexit to magically go away. But barring a political upset of Canadian proportions that’s a pipe dream.

  • SeaanUiNeill

    But as eamon said, it should be. We have an odd situation where those who are recognised as full citizens can hold either an Irish or British passport, something which I see as one of left over components of those joint sovereignty considerations which were suggested when the Agreement was still in discussion before the clauses were framed. Joint Sovereignty was certainly part of the early negotiations and would have ensured that the unreasonableness of the hard Unionist position would have been rendered impossible, although if clearly stated it might have seriously affected the results of the referendum at the time. As it is we have a cobbled hint which helps no-one.

    As for the issue of a long overdue Irish re-unification, let us see where the popular vote stands this afternoon………

  • SeaanUiNeill

    Certainly those I met from the generation from before the Great War clearly thought so. It is of interest to read some of the speeches during the 1948 Seanad debates on the Republic of Ireland Bill to get the full flavour of the complex attitudes still evident at that time.

  • Roger

    Funnily enough I have read those debates from 69 years ago. Good ones too. I still fancy my chances on a flutter.

  • Roger

    There “should be” a United Ireland perhaps. That doesn’t get us far. The peoples have spoken. We have the 1998 version of the 1921 settlement.

  • SeaanUiNeill

    I’d be happy to take your money if I did not feel that it would be simply too easy a win. The debates are fun, are they nit, in what the tell us about just how strong a conservative lobby still existed. I’m particularly interested in Senator Joseph Warwick Bigger’s exchanges, pertaining as they do, in some detail, to northern sensibilities.

  • SeaanUiNeill

    “We have the 1998 version of the 1921 settlement.”

    In many important respects “not really”, as the 1920 northern settlement (1921?) led to a majority “one party” rule for decades which atrophied those arts of the settlement crafted to encourage reunification and all too sadly ensured an institutionalisation of the endemic sectarian rioting which had marked the rise of Unionism, reconfigured as a uniformed arm of the new polity. The later Belfast Agreement while somewhat cobbled in its vagueness offers a few safeguards which were notoriously absent from the earlier settlement.

  • Roger

    (1921?)…’treaty’… something that wasn’t just a Northern settlement. Something that created independent Ireland, today a thriving despite higher tax closest neighbour of the UK. The Southern Ireland of 1920 being truly only a family memory now.

  • SeaanUiNeill

    Roger, not an “independent” Ireland, but very much a Dominion “Ireland”, on “the Canadian model” (as established at the time of the Colonial conference 1907) and which only began to creep towards a semblance of independence meaningfully when the second Balfour declaration at the Imperial Conference of the British Empire of 1926 began to constrain the wider jurisdictions which Westminster had perviously enjoyed, seriously curtailing the British parliament’s ability to pass or influence laws in the Dominions. Kevin O’Higgins with his puckish sense of humour was very much a mover and shaker in this important move to autonomy within the Empire, only a year before his tragic assassination. I’d still feel that if we are discussing NI, the underpinning structure would be the 1920 act, with only a few modifications accompanying the 1921 Treaty intended to accommodate the different situation of the Free State to that of the Southern Home Rule situation which the 1920 act was originally framed for.

  • Roger

    We were discussing a United Ireland of course. Not just UKNI.

    I’m pretty familiar with dominion status etc. I can’t call you pedantic. There were limitations that evolved. But most take 1922 as the year of independence and really for vast majority of practical purposes it was.

    Like many countries, it’s true Ireland doesn’t have one single clear near date one can call Independence Day but 6 December 1922 is the closest there is. I disagree: it was already a very meaningful degree of independence on that date.

  • SeaanUiNeill

    I think we probably have a pretty good grasp of the complexities Roger, even if we disagree over the actual interpretation of these. The problem is that NI ran pretty much under one constitutional structure for some decades from 1920 (even if it was momentarily part of a greater Ireland before opting out), and the rest of Ireland established its identity from the later treaty, and for myself the significant differences are more important than the broad stroke version. You are probably correct however, in weighing the matter towards the establishment of an Ireland to which the long lost prodigal will be returning.

    I’d certainly agree that the Canadian Dominion model Ireland was given in the treaty offered more independence than NI had from 1920, something which NI quite naturally covertly attempted to emulate for all its claims for the importance of the Union, but the second Balfour Declaration did really remove those shadowy restraints which had ensured a short period of civil strife over the constraints of the Treaty. So while in broad terms I can recognise why 1922 can be used as a symbolic “Independence” date, its the genuine substance of independence which interests me as an historian.

  • Roger

    Austin Morgan writes well in the topic though he doesn’t provide the full story.

    Even when IFS left UK is open to argument.

    When exactly the IFS was established is also, incredibly to my mind, the subject of different interpretations. I view that as having happened on 6 Dec. 1922. Austin concludes that’s the UK view too. However I have come across English lawyers who don’t agree.

    I’ve also found that apparently there is some Irish authority from Irish courts for it to have happened on an unspecified date before 6 December 1922. Apparently other than that there’s been no clear Irish judicial determination.

    Not that any of above relates to whether IFS status in 1922 was “substantive independence”. No neat date for that in the end.

    Even when Ireland became a republic is not entirely clear.

  • SeaanUiNeill

    I know Austen primarily from his excellent work on the Belfast working class and partition, and his little book on the Belfast Agreement. I’ve not looked at his work with Bob Purdie, which is what you are referencing I think, but will. Thank you.

  • Roger

    I don’t know about his work with Mr. Purdie; I only meant his book on the BA which has a lot of background constitutional content.

  • SeaanUiNeill

    Thank you Roger, while I disagree with you, I value your contributions, and your recommendations. I have the said book, even bought my daughter a copy.

  • Roger

    Thanks Seaan; I am flattered! While not as well read as you…I make my little go as far as I can….

  • SeaanUiNeill

    Its a pleasure to (robustly) discuss these matters with you, you have a fine balanced sense of the issues we argue over and always make me think again (even if I continue to split hairs and disagree). Not flattery, simple recognition. Sincerely, thank you.

    When I was a teenager skill at pool was considered the mark of a misspent youth. My own version was endless weekends spent in damp libraries of old books in the houses of family friends. I’m perfectly aware that other people seem to elect to have a life beyond simply reading books, but I cannot imagine why, other than cats and decent wine perhaps.