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Stephen Coutts – Irexit by Default? The Maintenance of Open Borders and Constitutional Realignment in the event of a hard Brexit

 

By Dr Stephen Coutts (DCU School of Law and Government)

It is with mild alarm that I read the account, or rather accounts, in Tuesday’s newspapers of the all-Ireland forum to be established by the Irish government to bring together political and civic leaders to identify common interests and to map a way forward for the island of Ireland as a whole in the Brexit negotiations. Of course, the establishment of such a forum in and of itself is not objectionable. The Irish-British relationship and in particular the Northern Irish-Irish relationship is perhaps the most sensitive element of Brexit outside the UK itself, and one that will have to be taken into account in the withdrawal agreement and post-Brexit UK association agreement. The Irish government has already declared its wish that Ireland’s special position and the situation of the land border between Northern Ireland and Ireland be recognised in the Article 50 negotiations. The problems are clear but the specific solutions less so. What is worrying is what may be termed the ‘macro-solution’ being proposed and its implications. That solution has been flagged as the creation of a ‘special status’ to recognise the unique situation on the island of Ireland. But a special status for whom?

The worry arises when comparing the reporting of the initiative in the Irish and UK media, both of which sound similar but in fact would have radically different constitutional implications. The Irish Times leads with a quote from Charlie Flanagan, the Irish Minister for Foreign Affairs, as speaking of a ‘special status for Northern Ireland’.[i] The Guardian on the other hand quotes the same minster as speaking of ‘special legal status for Ireland’.[ii] One implies the establishment of a special status for Northern Ireland that – if indeed we are heading towards one of the harder varieties of Brexit – would imply a certain detachment from the UK. This no doubt is the reason the First Minister of Northern Ireland, Arlene Foster and her Democratic Unionist Party are opposed to such a forum. The other solution, a special status for the Republic of Ireland, is the converse; a special, semi-detached status for Ireland within the European Union, whereby much of EU law would not apply and an open border would continue to operate between the North and the South but where a (reinforced) border would have established between Ireland and the rest of the European Union. The result is a certain detachment of Ireland from the EU.

As far as I can see there are two main obstacles facing an open border between Northern Ireland and Ireland that would arise in the event of a hard Brexit; custom checks and visa controls. If the UK decides to exit the single market without replacing it with some form of mutual recognition of regulatory standards then goods will have to be checked entering Ireland, which will remain a member of the EU. After all, once goods are in Ireland they can move around and be marketed throughout the EU and must be in conformity with EU standards. Similarly, if the UK remains in the single market but exits the customs union then similar, if perhaps not quite so burdensome, border checks will have to be erected to check for certificates of origin and to impose customs duties. Secondly, is the question of visa policy. The question of border controls per se does not arise. Neither Ireland nor the UK are currently members of the Schengen common travel area. This allows Ireland and the UK to operate their own Common Travel Area (CTA), ensuring free movement between the two islands and importantly between Northern Ireland and the Republic. However, this is only possible through a coordination of visa policy between the two jurisdictions.[iii] The Common Travel Area as between persons can be maintained in this sense post-Brexit but only if visa policy of the two states continues to correspond. However, and here’s the rub, Ireland is not entitled under EU law to impose visa requirements on EU nationals. If the UK wishes to ‘take back control’ of its immigration policy and in particular its visa policy, and subsequently seeks to impose visa requirements on even some (for example Bulgarian or Polish) EU nationals then it is difficult to see how a ‘hard border’ can be avoided.

How then is the open border between the North and South to be maintained?

The creation of a special status for Northern Ireland seems the most obvious solution (admittedly from a Southern-centred perspective). However, if we wish to avoid any border, including customs checks, then Northern Ireland must (somehow) remain part of the single market and the customs union which necessarily implies remaining subject to EU regulations and quite possibly supervision by the EU authorities including the European Commission and the Court of Justice (or feasibly the corresponding EFTA institutions – the EFTA Authority and the EFTA Court). In the event of a hard Brexit, in which the UK withdraws from the single market and customs union, this would entail Northern Ireland effectively remaining part of EFTA in all but name, being subject to Brussels rather than Westminster for a vast swathe of its law and the establishment of customs checks between Northern Ireland and the UK mainland. In other words it would be difficult, outside the realm of constitutional niceties, to speak of Northern Ireland as part of the UK as a legal order and common space at all. Similarly, if a visa requirement is imposed for EU nationals for the UK, but an exemption is made for travel to Northern Ireland, it is difficult to see how the UK could realistically enforce this unless visa checks are imposed between Northern Ireland and the mainland UK; again a solution unlikely to be palatable to the Unionist majority in Northern Ireland or indeed Prime Minister May who in her acceptance speech stressed the Conservative and Unionist nature of the Tory party.

Conversely, if what is being sought is a special status for Ireland then the same implications arise but in the opposite direction. In order for a ‘special status’ for Ireland to allow the CTA to continue in the event of the UK leaving the customs union and single market, Ireland would have to leave the customs union and/or the customs union, and may even have to establish a customs union with the UK. If the UK wished complete autonomy over its visa policy, Ireland would similarly be obliged to track the UK’s (new) visa policy, including in relation to EU nationals, whose own states may very well impose reciprocal arrangements on Ireland. Both of these outcomes would then imply the establishment of customs and/or visa checks between Ireland and the rest of the EU and moreover withdrawal of Ireland from by far the most significant elements of the European integration project. Depending on the precise solution, it would involve a significant realignment of Ireland’s legal and constitutional position, being obliged to enter into what would amount to a fairly dense legal union with the UK and distancing itself from the EU.

Thus in the event of a hard Brexit a hard border will have to be established somewhere to allow for customs and visa checks. This will either be between Ireland and Northern Ireland, Northern Ireland and the mainland UK or finally, what is suggested by this week’s talk of a special status for Ireland, between Ireland and the rest of the EU. The choice however entails far more than merely drawing a line on a map but rather a significant constitutional realignment for the various polities on these islands; either the detachment of Northern Ireland from the UK as a legal order and common space and its (continuing) alignment with the European Union or conversely a certain detachment of Ireland from the rest of the EU and its realignment within the UK’s economic, political and legal sphere. The advantage of the latter outcome is clear; it allows Ireland to maintain links not just with Northern Ireland but with the UK as a whole, but it involves the considerable cost of jettisoning significant aspects of EU membership.

This latter outcome is unlikely I suspect (and indeed hope). As with much of this debate it depends on what precisely the UK is seeking and how the EU and the Irish government react. Some mixture between the two solutions may emerge, with a partial detachment of Northern Ireland from the UK and a partial detachment of Ireland from the EU. But it paints a picture of the consequences for relations between the UK, Ireland and Northern Ireland and the choices these polities will face if the UK seeks a hard Brexit. In this debate it should be borne in mind that the decision to pursue a hard Brexit is primarily one for the British government and British people and the consequences, particularly for Northern Ireland and its relationship with the UK, are ones they should be prepared to accept. Maintaining an open border between Northern Ireland and Ireland in the event of a hard Brexit may be possible, but only at the cost of a certain detachment of Northern Ireland from the rest of the UK and its remaining to a large extent within EFTA. In this debate it should of course be kept in mind that Northern Ireland as a whole voted remain. However, a possibility seems to exist that the choice may be forced onto Ireland; that a hard Brexit may force Ireland to adjust its EU membership in order to retain the Common Travel Area in an attempt to retain its broader links with the UK, alongside Northern Ireland. This is what is suggested by the phrase a ‘special status for Ireland’. Exactly what this entails very much depends on what form Brexit will take and the balance the Irish government is willing to strike (and her EU partners are willing to permit) between association with the EU and association with post-Brexit UK. However, the Irish government and people should be vigilant that that a hard Brexit does not lead to quasi-Irexit by default. For this implies not some glorious return to legal sovereignty for Ireland but a ‘back-to-the-future’ scenario in which a political and constitutional realignment takes place away from Europe and towards the UK. It would be ironic that in the year of the centenary of the 1916 Rising, Ireland found itself once more, through a vote of the British people, returning to the political, economic and perhaps legal orbit of the UK, a situation it has spent decades trying to extract itself from and in which it has been aided in no small part through EU membership.

 

 

[i] Pat Leahy, ‘Cabinet sets up all-Ireland group to prepare for Brexit’ (Irish Times, 4 October 2016) <http://www.irishtimes.com/news/politics/cabinet-sets-up-all-ireland-group-to-prepare-for-brexit-1.2816034&gt; accessed 4 October 2016.

[ii] Henry McDonald and Patrick Wintour, ‘Northern Ireland could veto Brexit, Belfast high court told’ (the Guardian, 4 October 2016) <https://www.theguardian.com/world/2016/oct/04/ireland-to-seek-special-status-to-keep-open-border-with-uk-amid-hard-brexit-fears&gt; accessed 04 October 2016.

[iii] Which in the Irish-British CTA takes place on an ad hoc basis with Irish visa policy paralleling British visa policy see Bernard Ryan, ‘The Common Travel Area between Britain and Ireland’ (2001) 64 MLR 855.

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