Why Brexit affects Ireland

Ireland is more affected by what happens in the United Kingdom (UK) than is any other country. This is due to three facts: Ireland is host to the UK’s only land border with another state. Geographically, Ireland’s easiest route to the Eurasian land mass is through UK territory. Politically, Ireland has been intertwined with the UK for most of the last millennium, including to this day under the mutual Treaty obligations we and the UK share under the Belfast Agreement of 1998. As a consequence, what is going on in the UK, and why it is going on, matters to Irish citizens.  

The EU is a Habit of Mind

The EU is not a state, and is not about to become one.  It is, instead, a habit of consultation and common action between states, underpinned by legal and institutional arrangements. These arrangements are evolving in response to needs as they arise. More than it is a legal structure, the EU is a habit of mind. That is what a political institution is, a habit of thinking together.

Ireland will remain within that institution, with some influence on its evolution. The UK will not, which is unfortunate because the security of much of Ireland’s infrastructure is dependent on links through the UK and its territorial waters. The sea is no longer the barrier to hostile forces that it was in 1939, in 1804, or 1745. Increased global interdependence has brought increased vulnerability. Close and well-structured relations with one’s near neighbors across the sea are important to the security of any island state, including Britain and Ireland.

 A Decision Taken Without a Plan

Irish people were shocked by the UK decision to leave the EU in 2016. This was partly because it seemed the decision was taken without any regard to the effect it might have in either part of Ireland, and on the peace of the island.  But the shock was all the greater, because the decision seemed to have been taken, without a clearly articulated plan, for the new relationship that the UK would have with the EU, or, for that matter, with Ireland.

Given our own experience with referenda, this struck us as reckless.

Taking an irrevocable decision on principle, without first negotiating what it might mean in practice, is like a pilot taking off without a flight path.  Incidentally, this is also why I have reservations about the drafting, of the provisions in the Belfast Agreement of 1998, for calling a referendum on Irish unity. It could simply put the cart before the horse.

UK voters agreed to “take back control” from the EU in 2016, but without an agreed project for using the control they were taking back. Even now, five years after the decision, the plan is not yet visible.

Was England Ever Comfortable In The EU?

It was the more elderly section of the UK electorate that were strongest in their support for leaving the EU. This was surprising because these were electors who were old enough to have had had a vote in 1975 referendum, when they decided the UK should remain in the EU.

Perhaps the UK was never comfortable being associated with continental Europe, even in 1975. Churchill favored a United States of Europe, but with Britain staying aside from it. Churchill’s successor as Prime Minister, Harold Macmillan, wanted free trade with Europe, but initially, he wanted no part of a Customs Union and no political Union. He did not believe the Common Market, when it was launched in 1957 by six countries without Britain, would work. But it did work.

Meanwhile the UK lost its Empire, its links with the Commonwealth were weakening, and the Suez debacle of 1956 had reminded it that its alliance with the United States was not based on equality.  So, in 1961, Macmillan changed his mind, and made what he called at the time the “grim choice” to join the Common Market, only to have the application vetoed by de Gaulle.  De Gaulle felt that Britain was too close the U.S., and was not wholehearted in its commitment to Europe.  He was not wrong on the latter point. Eventually, another Conservative Prime Minister, Edward Heath, did succeed in persuading France to allow the UK to join the European Communities.

It is important to recall what the British people were told in the 1970s about what joining the Common Market would mean. Many Brexit supporters have recently claimed that the UK only ever wanted to join a common market, without any political strings, and that they were misled by their leaders. This is simply not true.

Edward Heath, who had fought in the Second World War himself, told the House of Commons, in April 1975, that the European Communities “were founded for a political purpose, the political purpose was to absorb the new Germany into the structure of the European family.” The political goal was not hidden, and the British people formally accepted continued EU membership on that basis, in their 1975 referendum.

Gradually, the UK had come around to the view that it should not stand aside from the growing common endeavor of the Common Market/European Union. As the newly appointed Prime Minister, Margaret Thatcher put it in a speech in Luxembourg in October 1979: “Britain could not turn away from a voluntary association designed to express the principles of Western Democracy......Nor (she said) could any enterprise properly lay claim the proud name of Europe that did not include Britain.....” She continued: “It took the British the whole of the 1950’s to realize these simple truths. It took the Six (Six Common Market members) the whole of the 1960’s to respond.”

These words of Mrs. Thatcher suggest that at last, in 1979, Britain was comfortable as a member of the EU.

What Changed Britain’s Attitude To The EU?

What happened to undo the lessons the UK had, according to Mrs. Thatcher, learned in the 1950s?

On the surface, four issues led UK public opinion to turn away from the EU: the rows about the UK’s financial contribution from 1979 onwards; the ejection of the pound sterling from the European Monetary System; immigration, through the interaction of  the free movement provisions of the EU Treaties; the EU’s enlargement to include the poorer countries of post-Communist Europe; and an upsurge in identity politics, in the wake of the financial crash of 2008.

But there might be even deeper reasons than these. The memory of the First and Second World Wars had faded. The importance of maintaining a structure of peace and interdependence in Europe slowly diminished in the public mind in Britain. Communism was no longer a threat.  Indeed, there is some evidence for the suggestion that long periods of peace encourage peoples to indulge in separatism.

One can perhaps see this even within the UK itself. UK solidarity was greatest during the World Wars and diminished after they were over.  All states are synthetic and imperfect creations, and are subject to change.

The Importance of Self Image

England’s self-image played a part in its increasing discomfort with the EU. Britain sees itself as “a fortress built by nature for herself,” as  “a scepter’d isle,” surrounded by seas controlled by Britain. The religious divisions of the sixteenth century underlined this sense of separateness.

Roman jurisdiction over the King’s marriage was rejected. This religious dimension was reinforced by the fact that Britain’s main continental rivals, over three centuries up to 1900, were Catholic powers, Spain and France, and Britain was emphatically Protestant. Legally it still is.

From the 1760s to the mid-20th century, Britain had the world’s biggest Empire. The Empire stood with Britain in 1940, when France had been defeated, America was neutral, and Russia was still on the sidelines. For this valid historical reason, the Commonwealth still has an emotional appeal in Britain, out of all proportion to its present political or economic importance. The Monarchy has also given Britain a sense of self confidence, and an emotional bond, that makes compromise with European neighbors, including with Ireland, seem a little less necessary.

These factors were as much in play in 1975, when the British people decided to stay in the Common Market, as they were in 2016, when they decided to leave it. So the different decisions remain puzzling, to outsiders like me.

Untrammelled Sovereignty: The Goal of UK Negotiators

Turning to the more recent negotiation, the organizing principle of Brexit, from a UK perspective, seems to be to have been the restoration of untrammelled sovereignty to the Westminster Parliament, and to it only. For the UK, sovereignty apparently must reside in one place, and only in one place. Even the minutest issue, such as the health standards for plants, or the safety and content of food, must be decided in Westminster only, and not in common with Brussels.

This concern with indivisible sovereignty is the reason the UK has declined to have a plant and veterinary standards agreement with the EU, and is thus the reason we have problems with supplies to garden centers and supermarkets in Northern Ireland, through the outworking of the agreed Irish Protocol. Sovereignty is everything, and trumps everything.

But, in this thinking, if sovereignty cannot be delegated upwards, to an international treaty-based organization like the EU, it is also difficult to conceive of it being delegated downwards, internally to nations within the UK itself.

Sovereignty and Devolution: Uneasy Bedfellows

Gordon Brown, former Prime Minister, claimed in a Guardian article last year that it would soon be  “impossible to hold together a UK of nations and regions in the straitjacket of a centralised state.” His main criticism was that the UK government was taking decisions, like setting the terms for Brexit, without properly and formally taking into account the views of the devolved parliaments in Edinburgh, Cardiff and Belfast.

Two of these had clearly stated that they wanted to stay in the EU Single Market, but the Westminster government ignored them. It was guided instead by the opinion of English MPs. The contradictions here are profound and enduring. In a speech in which she spoke of the “precious union” of the four nations, former prime minister Theresa May also announced that the UK would leave both Customs Union and Single Market (something to which the people of two of the four nations were opposed).

Later, she felt free to go outside the long settled Barnett formula for dividing up finance between the devolved administrations, so she could give an extra £1 billion to Northern Ireland, in return for the support of the DUP for her minority government in Westminster. She only showed the devolved administrations the text of her Article 50 letter, initiating UK withdrawal from the EU, on the day she sent it to Brussels.

The European Union operates according to a written rule book, the Lisbon Treaty, which is a sort of constitution, which is interpreted by a single Court system. In effect the UK Union has only one rule: “Westminster decides.” The durability of this arrangement will be tested in future.

The Brexit Test for Europe

The EU will also be tested in coming years. Many advocates of Brexit in the UK saw it as loosening the unity of the EU. This has not happened. In fact, the fiscal integration of the EU has deepened since the UK left. Even though there have been policy failures, as on vaccination, the unity of the EU has not weakened. Indeed, some the supposedly anti-EU parties, in Italy and France, have actually modified their positions in a more favourable direction. This is not what the Daily Telegraph expected.

“In Politics, Being Deceived Is No Excuse”

The fact that there is any agreement at all, after all the brinkmanship and bad blood, is a tribute to all involved in the Brexit trade negotiation. It is in the nature of a divorce, like Brexit, that both sides actually lose.

For Britain, the goal of the negotiations was “sovereignty.” While traditionally sovereignty has been seen as the unfettered power of the British Parliament to legislate, Boris Johnson interpreted it as taking back control into the hands of British Ministers, rather than Parliament as such. From a British point of view, the agreement goes some way towards meeting this goal. British Ministers have “taken back control,” at least on paper, of many issues, at least as far as the island of Britain is concerned. But not as far as Northern Ireland is concerned.

This is because UK voters, in 2016, simply forgot about Northern Ireland and ignored the problems of the UK land border there with the EU. They were reassured there would be no problem, but as the Polish philosopher Leszek Kolokowski said: “In politics, being deceived is no excuse.”

Future EU rules, in which neither the UK, nor the people of Northern Ireland, nor their elected representatives will have a direct or indirect say, will continue to apply in Northern Ireland under the Protocol the UK Parliament agreed with the EU, in its haste to leave.

In sum, Boris Johnson and the UK Parliament traded more UK sovereignty over the island of Britain for less UK sovereignty over Northern Ireland.

In the future, the more British rules diverge from EU rules, the more Northern Ireland will diverge from the rest of the United Kingdom. And more divergence is the declared goal of the current UK government, even though it creates a political mine field. The implications for Northern Ireland unionists could be quite destabilizing if the UK government, in order to justify Brexit, decides to diverge radically from the EU, on trade and regulatory matters.

More Divergence Is The “Whole Point” of Brexit

In a letter to EU leaders last year, Boris Johnson said British laws would diverge from those of the EU and added: “That is the point of our exit, and our ability to enable this, is central to our future democracy.” Divergence from the EU is central to the future of British democracy, according to the Prime Minister. Where will that leave Northern Ireland under the terms of the Protocol he signed, and which was endorsed by Parliament?

The Joint EU/UK Committee, set up under the Withdrawal Agreement, will need to monitor the political and security consequences of this rush to diverge. Title X of the Agreement requires advance notice, and consultations, of changes in regulations as between the UK and the EU. It will be important for peace and security that these consultations include representatives of all major interests in Northern Ireland.

What The UK Achieved

The Agreement contains significant gains for the UK side, at least as far as the island of Britain is concerned. Firstly, there will be no direct application of decisions of the European Court of Justice on the island of Britain. Secondly, while the UK has accepted that it will not regress from present high social, environmental and quality standards, it will be free to set its own UK standards for the island of Britain. These will, as I have said, be different from those applying in Northern Ireland and in the EU. This right to diverge is what UK Brexiteers saw as an expression of UK’s sovereignty, and they have got it. But, thirdly, the UK also accepts that divergence will not come for free.

As one advocate of Brexit, Liam Fox MP, put it in Westminster during the debate on the Agreement: “If we want to access the Single Market, there has to be a price to be paid.  If we want to diverge from the rules of the Single Market, there has to be a price to be paid.”

The Agreement establishes detailed mechanisms to negotiate the “price” that will have to be paid, mostly by consumers in the form of higher prices, for divergence.  These mechanisms in the Trade and Cooperation Agreement (A Partnership Council, Joint Committees, and Arbitration Tribunals) are completely untested at this stage. A great deal will depend on the particular use the UK decides to make of its new freedoms.

Arbitration Tribunals – Our Joint Future

If problems arise and these cannot be settled in the committee system, there is an agreed provision for arbitration. Three-person Arbitration Tribunals, which will operate on strict time limits, will be set up. If the Arbitrators find that either the EU or the UK has breached the agreed principles, the other party will be allowed to impose tariffs or prohibitions, to compensate for losses it has suffered. Incidentally, these tariffs, if imposed, will have to be paid on goods going from Britain to Northern Ireland or vice versa. This aspect of the agreement is valuable from an EU point of view.

In its absence, any disputes would have had to be referred to the disputes resolution system of the World Trade Organization (WTO). The WTO system is both cumbersome and narrow. Parties before the WTO can stall, adopt delaying tactics, or ignore rulings. Disputes there can drag on for years, as we have seen with the U.S./EU dispute about subsidies to Boeing and Airbus. So reaching agreement on a customized EU/UK disputes resolution mechanism was an important achievement for Michel Barnier.

But there are potential downsides in the Agreement for the EU too. We will be replacing a single set of rules, interpreted by a single judicial authority, the European Court of Justice (ECJ), with individual Arbitration Tribunals, operating under tight deadlines. This could lead to inconsistent decisions in different areas of trade. If a Tribunal interprets EU law differently to the interpretation later made by the ECJ on the same subject, there could be real difficulties.

The UK will be free to negotiate trade agreements of its own with non-EU countries. These negotiations may create additional pressure for even more divergence between UK and EU standards. The UK may come under pressure to allow the imports to the UK, that would not meet EU standards.

For example, the UK may come under pressure to accept chlorinated chicken, hormone-treated beef, or foods that have been genetically modified. If these products are then incorporated into processed foods, which are then exported to the EU, there could be big problems. We have experience of food quality scares in the past. There are separate and detailed provisions for imports which could upset the playing field on which EU and British producers will compete.  This could arise if there are hidden subsidies or monopolistic practices.

How The EU Must Respond To Brexit

In global terms, the continent of Europe has been weakened by Brexit. The decision of the UK to leave will force the EU to up its game. As a single entity, the UK will be able to move more quickly to set new regulations for new sectors, based on the technologies of the future. The EU, with 27 members to satisfy, and a budget of only 1% of GDP, may move more slowly. That must be addressed.

The Conference of the Future of Europe presents itself as an obvious opportunity to reform and streamline EU decision-making procedures, including, if necessary, by targeted Treaty Amendments. A Union that is unable to amend its constitution eventually gets into trouble, as the U.S. is finding.

Peace and Stability Must be Ireland’s First Priority

Although legally speaking the issues are unconnected, Brexit has led to speculation that there might soon be a poll, under the terms of the Belfast Agreement of 1998, on Irish unity.

The 1998 Agreement says that there should be such a poll if the Secretary of State for Northern Ireland believes such a poll would result in a vote for Irish unity. It assumes there would also be a poll in Ireland as well. The relevant text in the agreement is as follows:

“The Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.”

A majority for this purpose could be as little as 50.5% to 49.5%. According to some of those present in the final days of the negotiation of the agreement, the organization and consequences of holding such a poll were not much considered at the time. But the text is there, and it has legal force.

That said, the history of Northern Ireland, since 1920, demonstrates the danger of attempting to impose, by a simple majority, a constitutional settlement, and an identity, on a minority who feel they have been overruled. If, for example, a 49.5% minority in Northern Ireland votes to stay in the UK, and resolutely rejects rule from Dublin, one could expect there would be difficulties, not least for the government in Dublin.  A poll in those circumstances could repeat the error of 1920, and add to divisions, rather than diminish them.

It came as a surprise then to see Bertie Ahern, a former Taoiseach, call for the border polls to take place in 2028 (the 30th anniversary of the Good Friday Agreement). Target dates tend to be misinterpreted as promises, a sense of inevitability takes over, opinion becomes polarized, and rational discussion of the risks becomes impossible. Reducing a complex issue, with many nuances and gradations, to an over simplified Yes/No question is risky anyway, and deciding such a matter by referendum, irrevocably, without first negotiating the details, is not wise. It can lead to unforeseen results. This is, perhaps, a lesson of the 2016 Brexit Referendum.

Strangely, the Belfast Agreement, does not require the UK government to consult with the Irish government before calling such a poll, even though a poll on the same subject would have to take place in the Irish Republic.

The result of the poll would have major financial, security and cultural consequences for the Republic. This omission, therefore, of a provision to consult the Irish government gives weight to the suggestion that this part of the Agreement was not examined in depth by the negotiators in 1998.

Even though all other legislative decisions inside Northern Ireland must, under the same Belfast Agreement, be agreed by a procedure of parallel consent of both nationalists and unionists, this, possibly irrevocable, existential decision on sovereignty could be made by a simple majority, of as little as a single vote, in a referendum. This may be the law. But it sits uneasily beside the principles set out in the agreement itself which say the parties will “endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangement.”

It seeks something “agreed,” rather than something “decided” by a simple majority. Deciding the biggest question of all by a simple majority runs up against the principles in the Downing Street Declaration of 1993, agreed by Albert Reynolds and John Major.  It said that Irish unity should be achieved "by those who favour it, persuading those who do not, peacefully and without coercion or violence.”

This type of persuasion of the opposite community, is not taking place within Northern Ireland at the moment, in either a pro Union or a pro United Ireland direction.  Thanks to Brexit, positions are more polarized now than ever.

In the Downing Street Declaration in 1993, the Taoiseach, Albert Reynolds, said on behalf of the Irish people: "Stability will not be found under any system which is refused allegiance, or rejected on grounds of identity, by a significant minority of those governed by it.”

A poll on unity, carried by a narrow majority of say 51% to 49%, could not be guaranteed to deliver a system that would not be “at risk of being rejected, on grounds of identity, by a significant minority.”

“The consent of the governed is an essential ingredient of stability” was what John Major and I agreed in the Framework Document of 1995. Irish unity, carried by a 51/49 percent margin, might not obtain the requisite consent of the defeated 49 percent, who would still have to be governed. That is practical politics.

Peace and stability, tolerance and gradualism, should be our guiding principles in approaching the question of sovereignty over Northern Ireland. The focus now should be on making all the three strands of the Good Friday Agreement yield their full potential, rather than fixating on territorial sovereignty through a border poll.

Start with building sustained reconciliation, and shared goals, between the two communities in Northern Ireland. That is a common-sense precondition for success of any of the many constitutional options that might be considered at some stage in the future.