Could an all island special status (on the periphery of Europe) be adjudicated by the ECJ?

A few decades ago a young Northern Ireland student arrived at Cambridge to start an undergraduate course. As is the case with such institutions, there were events to help the newcomers get to know each other.

At one such encounter, a girl on hearing him talk exclaimed: “ Oh, you have an accent”. He replied smartly: “Yes, just like you”.

She immediately reassured him in a cut glass English voice that while she had no problem with the way he spoke, she herself did not have an accent. As far as she was concerned the products of public schools spoke in neutral non-accented tones.

Just in the same way, a lot of middle-class English people identify others as being nationalistic but not themselves. And it’s true that unlike the Irish, Scots and Welsh, they are mostly not given to noisy flag-waving or dressing up in national costume.

But on any reasonable yardstick, the arguments advanced by many well-heeled Brexiteers, and by the way, there are plenty of them, are unambiguously nationalist in outlook. The key phrase “taking back control” points to a sense of national self-awareness and destiny.

Now, there is nothing wrong in my book with having a pride in one’s own identity. For what it’s worth, I have a sneaking regard for Theresa May’s assertion that someone who is a citizen of the world is a citizen of nowhere.

Patriotism makes a society stronger and more cohesive. But in an international context, nationalism is more problematic.

Without doubt, the rousing cheers of enthusiastic supporters can help motivate teams to perform better on the playing field. It’s less obvious by far that it promotes greater achievement in art, music or literature.

And, as the troubled history of the twentieth century has shown, rather than being a positive force in world affairs, it can be a menace. In its extreme form, nationalism is the disease which mistakes itself for a cure.

The EU is an exercise in pooling sovereignty where the loss of control by governments over their own affairs, more apparent than real given all the global economic forces no one can resist, is, in theory, more than made up by the clout secured by being part of a large bloc.

Brexiteers disagree of course. They believe that the UK can fend for itself very successfully outside of the protection of the EU. It’s a bit of a gamble of course. An experiment that an unwilling Northern Ireland finds itself part of.

Here voters chose not to avail themselves of the right to forge a new future free from the Brussels behemoth. But whether inside or outside the EU, there is one reality that is inescapable.

When you strike deals of whatever kind, you need someone to adjudicate when differences of opinion arise. Inside the Union, that body has been the European Court of Justice. Outside, who will settle disputes has yet to be agreed.

It’s unlikely to be the ECJ. Even before triggering Article 50, the Prime Minister made it clear in her Lancaster House speech that the UK would not stay under the sway of the European Court. Interestingly she was less specific about the Customs Union.

On that issue, she gave the impression that the country could be in and out at the same time. You might have thought for handiness, Mrs May might have conceded the oversight function to the ECJ. After all, it has amassed some experience in ruling on trade disagreements.

If you’re a nationalist, however, these arguments about convenience are trumped by the need to be free from foreign domination.

As things stand the ECJ will not be asked to play a role when, as is inevitable, London and Brussels will fail to reach a consensus on some trade matters following Brexit.

Our appeal to Brussels for special status puts us in a different position. Unlike the rest of the UK, we are cast in the role of supplicants in Europe. Put simply we need Europe far more than it needs us.

Yes, it’s true that any special status for Ireland will be designed to help the Republic as well as us. But while a deal on the border is important to both parts of this island, what is crucial to the South is an arrangement with Great Britain.

Trade East-West is far greater than trade North-South. Brussels can argue the Republic’s case for access to the GB market as it negotiates its overall deal with the UK.

For its part, London will have its hands full looking after the interests of the UK as a whole without bothering too much about our particular needs. In short, we are in a uniquely weak position.

One way to make it easier for the EU to give us what we need is to accept, from the start, that interpretation and dispute resolution over a special status arrangement for the island is placed in the hands of the European Court of Justice.

It’s not much of a concession anyway. Brussels has repeatedly said that cross-border arrangements for the island post-Brexit will have to be consistent with EU law. Why not make our acquiescence on this issue explicit now.

It would help get the negotiations off on a positive note. I can’t see the Prime Minister arguing for the involvement of the ECJ. The initiative would have to come from local politicians. It’s time they got stuck into the debate.

Jamie Delargy is the former Business Editor with UTV Live, twice winner of the NI Business Journalist of the Year award and is now an independent writer, broadcaster and analyst. The above is republished courtesy of The Irish News.

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  • John Spence

    Nothing I said conflicts with that. You just don’t know how Customs work, if you did things would be clear to you.

    On your last point mobile customs patrols are the only way to attempt to control illegal movement of goods on a land border, without a militarised border. There will be patrols on the NI side as well. However that is separate from the system for dealing with those who have electronically declared their goods.

  • hollandia

    And yet, here is a customs expert contradicting you. The clue being in the phrase “there would also be”. Perhaps you can clear up how “customs works” then in light of the discrepancy?

  • Enda

    It has everything to do with this discussion.

    Without the EU a compromise on ending 30 years of conflict would have been much more difficult to reach, and the subsequent money that came from the EU made life in the north much easier for its denizens.

    None of this factored into the British mindset when they wanted their ‘sovereignty’ back, because it seems British sovereignty is so much more important than everyone else’s. Irelands position within negotiations has, and will continue to be in the months and years to come, an added complication to the UK’s leaving the bloc.

    ‘1 EU feels the need to punish UK. Officials have said many times UK can’t be seen to be better off out of the EU, hence the threats.’

    I don’t think it feels the need to punish, but Brussels sure as hell won’t let the Brits have their cake and eat it, and I don’t blame them. The world doesn’t begin and end at Airstrip One.

    ‘2. Some EU supporters, north and south, want to support EUs position to the detriment of both parts of Ireland.’

    There are people north and south who feel no connection to the UK, and it would be damning of the truth to suggest that some people, myself included, don’t want to see the fallout of these negotiations damage the north’s place within the union. Any damage to any part of Ireland lies with the people who voted for Brexit. I can at least dismiss the British public for not caring – en masse the Brits aren’t exactly the cleverest people in the world, and know very little of the world outside of the distance of miles from their work to their homes, but for people within the north who support Brexit, it’s like they scrambled to be the first to press the self destruct button.

    There is no easy answer in all of this for Ireland, particularly the border regions. A BBC report has stated that up to 600 lorries might have to be checked each day as will be required under EU law. That’s 600 checks, with a possibility of up to half an hour per inspection.

    All of what may come lies firmly with people who neither want, care nor understand the complications of what Brexit will do to the north, and especially what it will do to the border areas. To be from any part of Ireland, and to be complicit with this mindset is truly destructive. Who do some people think they are kidding if they ever though project Brexit would be good for the north? They’re living in a bubble.

  • Oriel27

    John, is that £400 per week or year? how would one police that?

  • johnny lately

    I hope your right John but the Irish people wont be blaming the EU if there is a return to border posts they will be blaming Britain of once again imposing partition in Ireland against the wishes of the overwhelming majority of people on this Island.

  • Gavin Smithson

    I recommend to those in this thread who say stupid things like ‘there is no border, it’s only a border on a map’ to indeed look at a map of the world and you’ll find quite a lot of borders. Borders are indeed a necessity to help delineate the finite scope of territory that is subject to the writ of that territory’s sovereign ruler(s).

    Yes I am sure many live near the border and they may say that when you look out their window that they don’t see a border.

    Those who live in the border of Luxembourg and Germany and indeed Scotland and England etc could v well say the same thing.

    Being an island doesn’t mean anything as the people’s of the island of Hispaniola would tell us. One island two nations.

  • John Spence

    He hasn’t contradicted anything I said, you don’t seem to understand the difference between intelligence/risk led targeting of those who have made an electronic declaration for selection for further checks, and the work done by border customs patrols.

  • Korhomme

    You should read up a bit about Switzerland in the 19th century. Internal borders, internal customs, several different currencies, differing weights and measures. And look what they did and where they are now.

    And their own version of the Troubles — a real civil war. And just guess who it was between.

  • Korhomme

    Tourism Ireland is a joint north/south organisation.

  • Enda

    It’s an artificial political construct to make a minority a majority so they could claim it as there own, it has no other relevance. Just look at the problems it’s causing, and it’s precisely because it’s been created artificially.

    I thought I you put up a post last week saying you were no longer posting on Slugger because it’s ‘too green tinted’?

  • George

    You seem to be picking and choosing figures there so let’s flesh it out.

    Ireland would lose up to 40,000 jobs over 10 years in a hard Brexit scenario with no ameliorating steps taken. Scotland, meanwhile, would lose 80,000 jobs in the same period (twice as much). Britain would lose 232,000 jobs as a result of the loss of Euro clearing alone.

    As for Northern Ireland, the HoC committee of which you speak found Northern Ireland’s economy was already characterised by the “highest levels of deprivation, unemployment and poverty” and while Ireland might be well placed to respond to the economic challenges in its path, Northern Ireland was not.

    The report states:

    “While the First Minister and the Secretary of State for Northern Ireland perceive opportunities for Northern Ireland outside the EU, our evidence suggests that the risks to the Northern Ireland economy posed by Brexit probably outweigh the opportunities.”

  • Michael Dowds

    How much do you actually know about the EU’s eastern frontier?

    I did a quick look along the borders between the following countries, of the roads that remain open (others have been destroyed at the border or are gated), I found the following:

    Slovakia – Ukraine:
    There are 2 crossings remaining.
    Both have border facilities on both sides.

    Poland – Ukraine:
    There are 7 crossing remaining.
    All 7 crossings have at least 1 border facility.
    4 crossings had border facilities on both sides.

    Poland – Belarus:
    There are 7 crossings remaining.
    All 7 crossings had border facilities on both sides.

    Lithuania – Belarus:
    There are 14 crossings.
    10 have border facilities.
    4 were country roads/ dirt tracks

    This presumably is the kind of operation you expect between NI and RoI? If only 8-10% of vehicles are stopped, shouldn’t be a problem, right? Except that EVERYBODY has to factor in the possibility that they’ll be stopped and checked. The duration of the check unknown BTW!

    ‘As friction-less as possible’ *eugh*

  • runnymede

    You could say that about literally any state, couldn’t you? It’s meaningless.

  • james

    “Being an island doesn’t mean anything as the people’s of the island of Hispaniola would tell us. One island two nations.”

    Same with the island of Borneo. And many other places.

    But these Republicans don’t get out much 😉

  • lizmcneill

    What’s the difference between a check at the border and a check 5-10km from the border?

  • Croiteir
  • lizmcneill

    Where are we putting the processing plants and abattoirs and who’s paying for them?

  • Trasna

    The Rep is a full member of the EU, it doesn’t require special status. I live in the far south, the border concerns us not a jot.

  • Trasna

    That’s if the CTA remains.

  • hollandia

    Then it appears neither did he. I’ll refer you again to the quote.

  • Brian Walker

    The Irish government would agree with you over individual cases including citizens’ rights. But why is an arbitrator necessary? Can’t cross border agreements be regulated by the respective domestic courts as they usually are between states? Otherwise, the ECJ would have to be acceptable to London which dislikes it intensly. Stormont is unlikely to have an independent say, even if they could agree on one.

    Even adding examples for the Court potentially to regulate, the bigger question is whether they add up to a case for special status if – (big if I grant you) – the UK manages to secure a good free trade agreement? (The ECJ would be the EU’s court but unlikely to be the UK’s.)

    Without quite sayiing so, the Irish position seems to argue for yes, for the whole island. It’s a big ask, even for a benign EU26.
    The British are wthholding their case for the negotiations.

  • eamoncorbett

    I don’t believe the DUPs assertion that they want a soft border , why would a party that spent hundreds of thousands of pounds on the leave campaign go against their stated aims . I firmly believe that although the outward message is “soft” the real behind the scenes message is a return to an obstructionist border . There’s something very unconvincing about the body language of the DUP assembly members when they address this issue .

  • Timothyhound

    Just not true and shows an alarming ignorance of the dairy sector. Fact is that due to economies of scale there simply isn’t the processing capability in the North. Consolidation of the sector on an all island basis means that post Brexit northern milk has nowhere to go. 30% heads south. Underlying point is that DUP campaigned in favour and never ever expected to be on the winning side. Now NI has no coherent Brexit position.

  • eamoncorbett

    If the Norwegian model is adopted then none of this will happen .
    However the biggest obstacle to this scenario will be the new Tory MPs attitude towards the final deal . If the UK has to pay millions in order to stay in the single market these new members may reject that idea but if enough of Cameron’s remainers hold sway then the Norway model could be accepted. It now seems likely that a referendum will be held on the final outcome but the problem with that is that the people of England will once again decide the fate of everyone .

  • eamoncorbett

    The problem won’t be as much about checks at borders but about the invoicing of the consignments concerned , if there are tariffs and they don’t appear on the invoice then revenue on both sides become involved,
    However I’m hoping for the Norwegian alternative which would sort out the whole single market issue and would satisfy the EU on the issue of Britain not being better off outside the EU but then again I could be naive.

  • eamoncorbett

    It would be plain crazy if a future all island electricity project were the subject of tariffs.

  • Muiris

    I lived in England in 1980s. I used to declaim as often & as loudly as possible, in my best Dublinese, that ‘I have no accent, it’s all of yez, who have an accent’.

    Of course the real English would chortle ‘it’s Paddy, being funny again’.

    For once, I wasn’t, actually.

  • eamoncorbett

    How would NI attract FDI if the North had to adhere to WTO regulations and the South continued in the single market , I’d like to hear your answer on that one.

  • eireanne3

    border folk can move freely 5-10km in either direction? How’s that for freedom of movement?

  • Paddy Ferris

    The British government are desperate for a good deal, as are the Europeans. In the back rooms, Nothern Ireland’s hide is already on the table. Its fate is sealed. It will leave the EU under a special status arrangement which will be sold as ‘distinct consideration’. It’s basically done already.

  • Old Mortality

    Leading Unionist businessman clearly hasn’t been in business very long. Sterling hasn’t reached the level of 1.06 it reached against the Euro in December 2008 when Brexit was just a fantasy of Farage. There’s nothing new about currency volatility and it’s arguably more of an obstacle to trade than customs duties which are usually fixed.

  • Old Mortality

    I think you’ll find that the ‘mushrooming’ industries are not ‘our’ industries since most of them are owned by US corporations. As you note yourself Facebook, Google et alia.

  • Jag

    That’s true, the giants in Internet/Pharma are mostly US, but there is a strong indigenous showing in both sectors – Stripe in internet payments (competes with Paypal, which has big presence in the Republic also), Eirgen in pharma.

    Does it really matter though?

    Around one in three pounds in N Ireland is spent in Tesco/Sainsburys/Aldi/Lidl/M&S which are all headquartered in England. Does that matter? They generate local jobs, sales, investment and purchases from locals.

  • Reader

    eamoncorbett: I don’t believe the DUPs assertion that they want a soft border , why would a party that spent hundreds of thousands of pounds on the leave campaign go against their stated aims
    “stated aims” – could you be specific please – what words did they use to state their aims, and how do those aims require a hard border?
    eamoncorbett: I firmly believe that although the outward message is “soft” the real behind the scenes message is a return to an obstructionist border .
    The DUP aren’t going to be making any decisions, so no need to worry.

  • murdockp

    I must mention to him not to go ahead with his plance because old mortality said so.

    What business do you run then give your certainty of opinion on the matter.

  • Jamie Delargy

    I suppose my ECJ recommendation is driven mostly by pragmatic reasons. Take the I-SEM for instance. It is coming into being to comply with EU reforms. But it is not just a local market. It’s part of an effort to create a single European market in energy. That’s why issues couldn’t just be left to local regulators. They’d have to be resolved at a higher level. That’s the ECJ or some new as yet unformed body. Why not opt for the ECJ to make life easier for everybody. (And by the way withdrawing from from I-SEM at this late stage would be nightmarish) Extend that principle of ECJ involvement across whatever special status we get for simplicity and convenience. That I suppose sums it up.

  • Jamie Delargy

    The EU does not place tariffs on the import of electricity or gas currently but it reserves the right to tax gas. It just hasn’t used the power but it could. Gas is a critical source of energy because it’s the mainstay of power generation on the island.

  • John Spence

    I disagreed but respected your contribution, until the “not the brightest” bigotry reared its ugly head. Rational discussion isn’t possible with bigots.

  • eamoncorbett

    The DUP are similar to SF when it comes to being expressive , they don’t so much use words but their actions speak loudly,300 thousand pounds is a heck of a lot of money to spend on a project when the outcome is bound to be negative at best and disastrous if you believe some economists. You’d have to admit that spending that kind of money , the desired result would have to be in line with the UKIP model and not the Norwegian model and by that I mean a hard Brexit .
    Why on earth would a party on the periphery of U.K. politics want to splash out so much money on something so divisive, I can only think of two reasons ,to put one over on SF for being on the remain side ,and to align with the Tory right in seeking a hard Brexit . Sometimes actions speak louder than words.
    In respect of decisions, I appreciate the DUP won’t be making any , but a mixed message from NI on Brexit is hardly desirable.

  • Enda

    As I respect yours John.

    The British public aren’t the brightest, certainly not when it comes to Ireland. Look at any vox pop taken by channel 4 news on the upcoming GE. Much of GB public don’t seem to have a clue what they’re talking about, and resort to sound bites or discussions on a party leader’s ‘performance’ rather than policy. That’s not true of everyone, but the empty vessels do seem to be allowed to make the most noise.

  • John Spence

    The UK govt, the Irish govt and the Northern Irish parties don’t want border customs posts. The EU not only wants, but requires them.

    A compromise will be sought, and it is likely that controls will be based away from the border, and that only a small percentage of commercial vehicles will have to report there. This would mean that most people would notice no difference in their cross border journey.

    However revenue partition does and for least for a while will continue to exist. Try moving a tanker of fuel, or another product which attracts Excise duty across the border, without proper documentation and you are likely to be challenged etc.

    In the end it doesn’t matter who is blamed for the situation if things don’t work out well. What matters is that the only party that may insist on oppressive border controls is the EU. The controls can be light touch or not, they will be light touch in NI, we don’t know yet what the situation in the south will be.

  • John Spence

    No one not even the EU is saying it won’t

  • John Spence

    It’s each tip and its per person. Goods can’t be for commercial purposes, no different than arriving at an airport say, from the US

  • John Spence

    Well we won’t agree what he means then. I’m basing my view on 30+ years working in this field

  • John Spence

    One is a border post and one is not. In the Republic they call them facilitation offices.

    It means that those who don’t need to report to customs, for any reason, 99%+ of travellers, don’t get involved in queues at border posts etc, when they don’t need to.

    It is a significant difference.

  • hollandia

    I’m basing my views on the words the Revenue person used – namely that risk-led searches would be in addition to the 8%.

  • Oriel27

    Id say what could happen is, they will give permits to border people to come and go across the border as they please. Probably will have some electronic system in place to scan them.
    Could be like the M1 toll, no-stop lane.

    Probably will have to overlook any shopping for personal use either side. Small monies at the end of the day.

  • chrisjones2

    I have no idea but suggest that you get your professional body to raise this issue with Government – I am sure they are already doing so.

    You could of course also register a company in the Irish jurisdiction to protect yourself – it costs very little

  • chrisjones2

    Doh ….. that is why we may see a lot of investment here

  • chrisjones2

    those who will benefit from them perhaps with some transitional Government support …but businesses should get on and plan ….I am sure they are doing just that , the Irish certainly are

  • chrisjones2

    Have a look at the evidence given to the Dail by Irish Customs

  • chrisjones2

    Irish Customs clearly disagree

  • Timothyhound

    You don’t seem to understand. There has been huge consolidation in the dairy sector worldwide and Ireland has followed suit. The main players are effectively nutrition and food entities. They have had to consolidate or die. There’s only room on the whole island for most likely two of these players – namely Kerry and Glanbia – hence 30% of the Norths liquid milk heading south for processing. There is little prospect of an NI entity emerging in this space- it would be just too small to compete. (Kerry invested €800m in a facility south west of Dublin- highlighting the global scale of the sector). These are the very real factors that Brexit impacts. If you could stop being so partisan you might realise what a negative impact this mess is having.

  • Michael Dowds

    When you claimed the other day that walking your dog across the border or shopping across the border wouldnt be affected by Brexit (I presumed you meant of the hard variety), I provided you with a link to a specific NI Affairs Select Committee, during which the expert witnesses contradicted you. Sadly you didn’t respond to that, I can only guess at the reasons why…

    Which committee should I look at? Dates would be useful. If you’re going to try and provide weight to your assertions, you should try to be more specific.

    Do you mean Liam Irwin’s evidence to the Oireachtas Finance Committee? Because there are two things about that:

    1. You need to get your terminology correct if you want to be taken seriously. The evidence wasn’t given to the Dail, it was the OIREACHTAS Finance Committee.

    2. Are the suggestions by Mr Irwin as to how the NI/ RoI customs border could work ACTUALLY how the EU’s eastern frontier works or are you just shooting from the hip on that one like the 3.5tonne figure mentioned above (seriously, did you just make that up or does it come from somewhere?)

  • Michael Dowds

    Registering a company in RoI wouldn’t make a jot of difference with regards to recognition of professional services qualification.

    The two are completely unrelated.


  • chrisjones2

    But we do now know. Irish Customs evidence to Dail suggests 6% to 8% of HGV traffic for document check. Much smaller % physical check and estimate document check measured in seconds

  • Gavin Crowley

    If the AlI Island Energy sector was to be vested in a North-South body, and treated as a sealed container, separate from normal business – would that make it easier to subject it to the ECJ?

  • Kevin Breslin

    You are being wound up for political effect by people who want to sow and exploit division

    Is this a running commentary?

  • Kevin Breslin

    What they say is just hearsay, the clearly written law in both jurisdictions is all that matters.

  • Kevin Breslin

    Irish Customs are adding more friction to a near friction-less trade road, these are clearly defined for it with every nation in the world bar the UK.

    Now we wait on the British side to add their barriers to every nation in the world.

  • Kevin Breslin

    Ireland made a sovereign decision to remain in the customs union, if it wasn’t in the customs union it would not only have more barriers with the UK, but 26 other nations too.

  • Kevin Breslin

    The DUP aren’t going to be making any decisions, so no need to worry.

    What happened to the Tory’s and Labour’s plans about giving NI greater devolution?

  • Kevin Breslin

    Erm you’ve never been to a customs queue in Eastern Europe I take it if you think they are seamless bar a few vans and some electronics.

    Far more physical checks are made in the non-EU Custom’s Union parts of Eastern Europe.

  • Kevin Breslin

    “I will also bet the goods vehicle requirement only starts at 3.5 tonnes and that most UK control of this lies at NI ports!”

    You did say previously that there would be no UK controls what so ever inside Northern Ireland …

    “The UK Government says it doesn’t want a closed border. The Irish say they dont want a closed border. The NI Government doesn’t want a closed border

    The only people who keep citing this are those who dont accept Brexit. Tough. Brexit will happen but there will be an open border unless the EU imposes one on the Irish.

    Frankly if they do its up to Ireland to manage that”

    Yet last time I checked the NI port at the Foyle is on the UK side of the Irish border.

    So why the assumption that the UK won’t have customs controls within Northern Ireland on land, if they need them for freight imported at sea?

    What’s the point in checking goods at the port in the Foyle, if those goods don’t need to go through the EU to get there?

    Surely that goes against the completely Free Trade dogma that the Brexiteers have been evangelizing … ?

    Rather than check for customs or unpaid duties the attitude would be dump your knockoff goods in Northern Ireland from everywhere!

    And what happens if the EU allows something to pass its customs that the UK government wants to impose sanctions or tariffs on, what doe the UK do in that case?

    As I said before it all comes down to what the C stands for in HMRC.

    The Irish customs solution is only HALF the problem, Westminster can’t handwave ITS half.