John Bruton

Opinions & Ideas

Category: BREXIT Page 2 of 6

KEVIN O ROURKE ON BREXIT

I have really enjoyed reading “A Short History of Brexit, from Brentry to Brexit” by Kevin O Rourke.

O Rourke is a UK based, but Irish born and resident, academic, who also has a house in France.

His father, Andy, is a distinguished former Irish diplomat, and his mother is Danish.

He brings this varied hinterland to his aid, in probing the forces that shaped the British decisions

 first to join, and then to leave, the European Union.

Behind this inconsistency he identifies the existence of two  conflicting strands of thought, in the UK Conservative Party, and more widely.

The first is idea of “Imperial Preference”, that of giving better trade access to the UK market to the Empire than to other countries. This has deep roots in the Party.

 It was championed by leaders like the Chamberlains and Baldwin. This policy was implemented, in 1931 by Neville Chamberlain, when he became Chancellor of the Exchequer.

In contrast, Churchill, although a strong Imperialist, opposed protectionism all through his career. He advocated a “United States of Europe” in a speech in July 1945.

 Macmillan, who shed the Empire and had been wounded seven times in the First World War,, understood the need for the UK to build its future, and a structure of peace, in Europe.

 In contrast, a later Conservative Prime Minister, David Cameron is quoted as saying it was “a myth” that European integration was the result of the lessons learned from two world wars.

There is much that can be divined from this well written book.

The 2016 Referendum can be traced back to a decision, in 2010, by 81 Tory MPs to defy their Whip and vote for a Referendum on leaving the EU.

Then , when Cameron set out to renegotiate UK membership. he recklessly announced that he would not “take no for an answer” on restricting free movement of people within the EU Single Market. He was never going to win that concession.

The book also analyses the history of the Irish and European economies in the 20th century.

 Ireland was a late developer, mainly because it waited until the 1970’s, to open its market to foreign competition. Even Portugal and Greece moved faster.

O Rourke highlights the importance of the common EU VAT regime, and the sharing of information between EU states on VAT, as the means of avoiding hard borders within the EU.

As the author says,

time is money and border controls cost money

WHAT SHOULD THE EU DO AFTER BREXIT?

WHAT SHOULD IRELAND’S POLICY BE?

 The terms of Brexit are vital for Ireland.  But so also is how Ireland locates itself in the EU AFTER Brexit. President Macron has written to the Taoiseach setting out his post Brexit agenda. The Finnish government has just published an 125 page report on the implications for Finland and the EU of the changing global order. Ireland should do the same.

 Brexit could change Ireland’s geostrategic position.

SECURITY

If the US guarantee of Europe’s security through NATO were to be diminished, and/or if the UK were to become estranged from its continental European allies, Ireland would be in the geostrategic frontline.

 The UK/European/US security alliance has provided security for Ireland since 1945, at modest cost.

It will be in Ireland’s interests that this security alliance survive Brexit. A clash on security policy between the UK, and the continental members of the EU, would hit Ireland, particularly its communications, energy and cyber security.

FIVE THREATS

Stresses in European security will be caused five global forces. These are

  + A richer, but older, human race, reluctant to change, and nostalgic for a past that never really existed. The EU and the UK are part of an ageing continent, with declining population, but close to Africa which is a young and potentially dynamic.

  + The increasing vulnerability of globalization and the of norms that underpin it. The WTO is at risk.

  + Climate change and intensifying competition for scarce material resources, not just energy but water, phosphates and rare earths.

  + Distrust of political leadership, and of experts could lead to a paralysis in necessary decision making in the EU and other multinational institutions.

  + The economic rise of China and India and their associated political ambitions, and declining interest of the US in guaranteeing Europe’s defence.

 All these forces will leave Europe, and Ireland, increasingly vulnerable to outside pressures.

EASIER TO MEET THEM TOGETHER THAN SEPARATELY

Meeting them will not be the responsibility of the EU alone. Member states themselves have far more spending power than the EU has. They spend 40% of GDP whereas the EU only spends 1%. Cooperation with the UK, especially after Brexit, will help.

 If European countries want to have maximum impact on most of these huge challenges , they will need to act together, and in good time .While the absence of the UK from the EU will be a handicap,  fractious and prolonged arguments among EU states themselves could be an even greater one.

 Irish policy should be that, by acting within or through the EU, rather than on their own, EU states can do more, at less cost.

 But will that approach get the unanimous agreement among all 27 EU members? If not, smaller groups of EU states may decide to go ahead on their own, using Title IV of the Treaty, which allows for this. To the extent that a member state then declines to take part in a Title IV activity, it may find itself in an EU “slow lane”. Ireland should avoid being in any EU slow lane. Brexit has made us geographically peripheral, so we should avoid being politically so too.

TREATY CHANGE SHOULD NOT BE RULED OUT

 That said, the EU may only act within the limits of the powers given to it in the Treaties.  If necessary, pragmatic, case by case, amendments to the EU Treaty, to enhance EU competences, should be made. That would, on balance, be better than an EU of first and second class members.

  After Brexit , Ireland must concern itself with the worries of ALL its 27 EU partners, even if these are not of immediate concern to Ireland. The more Ireland does this, the more will those states be willing to support Ireland when Ireland has a problem.

 Ireland should be proactive on all the continents big problems, and should seek solutions to its own problems within the context of a wider EU interest, rather than just look for exceptions. It should avoid alignment with sub groups of states within the EU, who could be seen as divisive or negative .

COMPLETE THE UNION

 Ireland should be positive in support of Banking Union, Energy Union and the completion of the EU Single Market in services. This will sometimes involve standing up to France and Germany, but it will enlarge opportunities for all.

 We will not always get our way, and when trade offs have to be made, these should be explained fully  to the public and the Oireachtas . Ireland should learn from the UK’s mistake on Brexit, of failing  to educate its electorate on the compromises it would have to make.

MAINTAIN THE RULE OF LAW

Populism in central Europe must be confronted. Maintaining the rule of law, and an independent judiciary, are vital to the survival of the EU. EU rules are meaningless if they are not enforced by impartial courts.

The EU is the most advanced multinational, democratic, rule making body in the world. It can be made even more democratic. One way to do this would be through the direct election, by the voters of the EU, of the President of the European Commission. Another is through the Citizen’s panels advocated by President Macron.

The further enlargement of the EU should be supported on a case by case basis. It is important to the consolidation of democracy, in countries like Serbia and North Macedonia. But democratic standards must continue to be insisted upon AFTER a country has joined the EU, as well as when it is applying.

AVOID PROTECTIONISM

Ireland is the EU country with proportionately the greatest amount of US investment. If stresses arise between the US and the EU, these will be felt disproportionately in Ireland. Some of President Macron’s ideas could cause difficulty here. Skillful Irish diplomacy and foresight will be required.

As well as the terms of Brexit, these are the issues that must be discussed during the forthcoming European Elections.  The EU has strong institutions which have proven their worth. But it is the people who operate the institutions that will make the difference. That is why the choices voters will  make in choosing MEPs are so important.

CAN THE BREXIT IMPASSE BE RESOLVED?


This week I am speaking in the Sciences Po University in Paris at the invitation of the Dean, Enrico Letta, a former Italian Prime Minister .

A member of the Scottish Government, Fiona Hyslop will also speak and we will be discussing the dilemmas posed by Brexit with a number of academics and their students.

Later this week, I will attend the Ideas Lab, organized by the Centre for European Policy Studies (CEPS),  in Brussels. I am a member of the board of CEPS.

This meeting will consider the possibility of the trade war between China and the US going global, integrating climate and trade policies, and the vision for the EU for the next 5 years. Brexit, as such, is not on the agenda.

Interesting ideas on resolving the Brexit impasse have been put forward by Andrew Duff, a former MEP, and by Professor Kenneth Armstrong of Cambridge University.

Andrew Duff suggests a series of detailed amendments to the Political Declaration that would bring the UK closer to the EU in some respects.

Professor Armstrong suggests a new protocol that would give greater legal force to the Political Declaration.

His core idea is that there would be that a set of criteria be negotiated, as to how and when the backstop might  be implemented, or be modified or replaced.

Procedurally, his proposal would de dramatize and postpone the issue. But it would not solve it.

It remains to be seen how it could avoid a hard border,  either in Ireland or on the Irish Sea, if, at the end of the day, the UK insists on pursuing an independent trade policy.

It is also unclear whether a majority could be obtained in the House of Commons for any of this.

Until that is clearer, it is hard to say whether the EU has a credible interlocutor in London with whom it can negotiate. The UK Parliament has yet to reconcile its desires, with the essential needs of the European Union. It has to accept the tradeoffs involved.

Professor Armstrong’s approach would avoid a No Deal crash out on 29 March.

I have no doubt that customs controls will have to be introduced by Ireland, as a continuing EU member, in the event of a No Deal crash out.

I feel that public opinion has not been prepared for that legal reality.

Being in the EU has been very advantageous for Ireland in every way, especially in attracting investment and jobs.

So Ireland must implement EU law. The EU is a system of rules, and if its rules are not respected, it ceases to exist.

“NO DEAL”, AND FARMING…WHERE ARE THE CREATIVE SOLUTIONS?

The shocking consequences for Irish farming of a No Deal Brexit have been spelled out in graphic detail by Phelim O Neill in successive editions of the Irish Farmers Journal.

The beef sector will be worst hit, with a 350kg Irish beef carcass, worth 1295 euros, facing a 780 euro tariff on the UK market, if the UK applies WTO terms.

If, instead, the UK adopts a zero tariff approach, Irish beef would face unlimited Brazilian competition.

The emergency support measures, that the EU might introduce to deal with a No Deal crisis, would buy time for the sheep, pig and dairy sectors. This would allow them to develop alternatives to the UK market.

But alternative markets for Irish beef, at anything near the returns to be found on the British market, do not exist.

A No Deal has become increasingly likely because Mrs May has decided that her priority is to avoid a split in the Conservative Party.  She has calculated that, if she tried to get her Deal through with Labour support, in return for modifications that would satisfy Labour, such as staying the Customs Union or softening her stance on EU immigration, her Party would break up. She would lose 50 or 100 MPs, and would cease to be Prime Minister.

Should, or could, the EU make concessions that would help out Mrs May?

Even if the EU side wanted to make concessions to the UK on the terms of its Withdrawal, it has no way of knowing if Mrs May would have the political authority to get any such modified deal through the House of Commons.

When one contrasts what leading Brexiteers, like David Davis, were saying a few years ago about what might be acceptable, with what they are insisting on now, it appears that nothing will satisfy them, and that every concession will be met by a new demand. It is catharsis, rather than compromise, they are after.

This is the point that needs to be addressed by those in the Irish media who are already laying the ground work for blaming “brinkmanship “ by the EU, and  particularly by Ireland, if the UK crashes out of the EU on 29 March.

What guarantee can these critics offer that any conceivable “alternative” to the backstop would pass in the House of Commons?

These critics, and the UK government itself, have so far been shy in coming forward with practical ideas that would get a majority in Westminster, and also respect the integrity of the EU market.

One person who has come forward with ideas to break the deadlock is the UCD economist, Karl Whelan.

He says that one of the reasons advanced by the DUP for rejecting the backstop, namely that the backstop would place a barrier in the way of Northern Irish exports the Britain, is without foundation.

 He says that under the backstop, exports originating in Northern Ireland would go through a Green channel at Belfast port with no checks or controls. Only goods originating in the Republic of Ireland , or further afield, would have to go through a red channel where there might be checks.

And, at the same time, NI exporters would have free access to the EU across the open land border in Ireland… They would have the best of both worlds.

Karl Whelan goes on to suggest that, to get the Withdrawal Deal across the line in the House of Commons, the EU side might consider two extra concessions.

 The first is an option that, at some future point after the end of the transition period, Britain could leave the joint Customs Union with the EU, on condition that Northern Ireland  remained in the Customs Union and aligned with EU goods regulations. This would deal with the Brexiteer fear that the EU is trying to “trap” Britain in the Customs Union, which is not the case.

The second part of his proposal is that voters in Northern Ireland try out the backstop for a few years, but that, after (say) five or more years, they could have a referendum, in which Northern voters could decide to opt out of the backstop.

He thinks they would opt to stay in it because by then they would , over the five years , have experienced the “best of both worlds”  that the backstop gives the Northern Irish economy.

There are two problems with this idea. The suggested referendum could further deepen the Orange/Green split, and the very possibility of a referendum would introduce a new element of uncertainty for business. Referendums are inherently risky and influenced by extraneous issues. But the delay would allow time for the supposed technological fixes for a hard border to be road tested.

That said, his proposal would be far less divisive than an outright border poll, which could flow from a “No Deal” Brexit.

Opinion polls in NI suggest that a  majority there would opt to stay in the UK if the UK were to remain in the EU, opinion would be equally split under the backstop, but would spring dramatically against staying in the UK if the there was a No Deal Brexit.  In those circumstances a border poll would be hard to resist. Brexiteer “Unionists” in Britain are foolishly playing with fire.

Another idea for breaking the deadlock has come from the German Ifo Institute, in a paper published only last month.

This proposal would involve dumping the entire EU negotiating approach so far, and instead offering the UK membership of a newly constituted European Customs Association, through which the UK would have influence on EU trade policy and vice versa. It suggests that Turkey might also be invited to join this European Customs Association. The Customs Association idea might mitigate the “vassal state” objection to the UK joining the EU Customs Union as a simple rule taker.

But  I would question the wisdom, and perhaps the motivation, of bringing forward such a proposal at this impossibly late stage, as a possible solution to the present crisis.

It  might have been helpful, if it had been published when Theresa May wrote her original Article 50 letter in 2017, but it has little value, as a way of averting a No Deal crash out on 29 March.

 If the UK accepts the Withdrawal Treaty, or if it decides to withdraw its Article 50 letter, the Ifo proposal might be considered then. But to have any traction, it is an idea that would have to come from the UK side.

Both the Whelan and Ifo proposals are designed to help the UK clarify what it wants.

The problem is that UK opinion on Brexit has become so polarised, and so tied up with questions of identity, and political party discipline has been so damaged, that it is hard to see the House of Commons assembling a political will to deliver anything, except slipping into a chaotic No Deal.  I hope I will be proven wrong.

NO DEAL AND THE UNION….DO BREXIT SUPPORTERS KNOW WHERE THEY ARE GOING?

We seem to be sliding inexorably toward a “No Deal” Brexit.

Mrs May’s decision to prioritize a deal with the Brexiteers in her own party, over a possible deal with the Opposition, and the time limits imposed on all of us by Article 50, make a No Deal much more likely than it was a week ago.

The EU is a rule based organisation, and it cannot afford to break its own rules if it wants to maintain its moral and political authority. The technical fixes, advocated by the Tory Brexiteers, cannot be worked through between now and 29 March.

At this late stage, Mrs May can afford to gamble, because, politically, she has little left to lose.

The EU cannot do so.

Its credibility is vital to its trade agreements with the rest of the world. Its internal cohesion depends on consistent application of common rules.
Where will a No Deal leave Ireland?

On the 1 April, the UK will be a non EU country. By law, the EU will have to treat it as such.

Ireland has opted to stay in the EU, and will have to continue to apply EU law, including the EU Customs Code, in all its dealings with non EU states, including the UK and Northern Ireland. That is a clear general principle.
The detail of how this might be applied at Irish ports and land boundaries, on traffic arriving from the UK, should now be clarified in minute detail.
There is no negotiating advantage now in withholding this information at this late stage, in light of Mrs. May’s choice to prioritize a deal with the Conservative Brexiteers over a deal with Labour.

In an article last month, the UK journalist Quentin Peel quoted a recent opinion survey in Northern Ireland on how people might vote in a referendum on leaving the UK adjoining a United Ireland.

I have to say I found the results he highlights to be quite surprising.
The opinion poll, conducted in early December by the Belfast-based pollster Lucid Talk, asked respondents how they would vote in a border poll in three different circumstances:

  • If there were a “no deal” Brexit crash-out of the EU: 55 %  said they would either certainly or probably vote for a united Ireland, against 42 % certainly or probably opting to stay in the UK.
  • If there were a Brexit based on Theresa May’s withdrawal agreement: the outcome would be wide open, with 48 % opting to stay in the Union, and 48 % wanting Irish unification.
  • Only if Brexit doesn’t happen, and the UK stays an EU member, is there a clear majority for remaining part of the UK: 60 % in favour, against 29 per cent for a united Ireland.

On the whole, the vote splits clearly on ethno/religious lines:

80 % of self described unionists would opt for the UK even with a no-deal Brexit.

93 % of nationalist/republicans would opt for Irish reunification.

What makes the difference in the poll is the crucial swing vote of the “neutrals”, who are neither self described unionists nor self described nationalist/republicans.

  • If there is no deal, ONLY 14 % of these “neutrals” would vote to remain in the UK!
  • If there is Brexit on May’s terms, that rises to 29 % choosing to remain in the UK.
  • Only if the UK as a whole opts to stay in the EU, do 58 % of the “neutrals” (Alliance, Greens, etc) vote in favour of the Union.

This poll should be read by the MPs of the Conservative Party who stress their support for the “Union” as one of their reasons for opposing the Irish Backstop.
According to a study by University College London, support for the Union of Northern Ireland with Britain is given by many Conservative MPs as the reason for their opposition to the Withdrawal Agreement, and their willingness to contemplate a “No Deal” Brexit. This is perverse.

If this poll is to be believed, in the name of support for the Union, these Conservative MPs are opening the way to a No Deal Brexit, the very outcome that would make a breakup of the Union most likely.

By backing Brexit at all costs, including a no-deal Brexit, the Democratic Unionist Party has enhanced the likelihood of a border poll that would end the Union. This is not a wise course for a “unionist” party to have followed. It plays into the hands of Sinn Fein.

This DUP approach shows how the politics of identity can lead sensible people to adopt policies that lead to the very outcome that they do not want.

The poll data also raises questions about how the vast UK Exchequer subsidy towards public services in Northern Ireland could be met from the much smaller Irish Exchequer, in the event of a United Ireland being chosen by voters in a referendum in Northern Ireland. The implications for tax, and for public services and pay, in both parts of Ireland would be substantial.

There is also the question of how Loyalists, who passionately support the Union and who have a record of violence, might react to a referendum decision that did not go the way they wanted, and how the Garda Siochana and the Irish Army could  cope with this.

Neither of these points is addressed by those, who refuse to take their seats where they could do some good, and who are instead constantly demanding a border poll. As Brexit shows, making a big decision on the basis on the basis of a 58/48% vote can have dire consequences.

Mrs May, by prioritizing Conservative Party unity over a cross party approach, is leading these two islands into constitutional and emotional territory that has not been mapped, and that is highly dangerous.

The problem is Brexit itself, not the backstop.

Brexit, of its nature, means hard barriers between the UK and the EU.

This is because it means the UK having different standards, and, sooner or later, different trade arrangements and tariffs than the EU.  

Whether these barriers are at the geographic boundary, or a few miles away, makes little difference.

These new barriers will bring delays, extra bureaucracy, and eventually bankruptcies, in their wake.

This is what Brexit means, and was always going to mean. Taking back control, by its nature, means more controls

The UK Government says it wants to impose these controls for two reasons.

The first is to be able to control immigration to the UK from the EU.

The truth is that the bulk of the immigration to the UK is not from the EU, but from outside it. EU immigration to the UK will fall off anyway because the population of the EU countries, from whom immigrants have come to the UK, is set to decline.

The second is to be able to make its own trade deals with non EU countries.

This argument is unconvincing. On leaving the EU the UK will lose the trade agreements it ALREADY HAS with the EU, and through the EU, with other countries.

In fact, leaving the EU will mean the UK losing trade agreements with countries that account for 70% of all UK trade. It will need a lot of new agreement to make up for this sudden and dramatic loss!

The backstop would reduce the effect of this, but not remove it altogether, especially if the UK opts for a different VAT regime to the EU.

No Deal

If there is no deal, and no backstop, the European Commission said in a paper published in November, that ;

“Member States, including national authorities, will play a key role in implementing and enforcing EU law vis-à-vis the United Kingdom as a third country. This includes performing the necessary border checks and controls and processing the necessary authorisations and licences.”

The paper does not exempt any of the EU Member State from this requirement.

Indeed if the EU Customs Union and Single Market were to deliberately fail to control any of its borders, it would soon cease to exist, as a Customs Union and a Single Market.

This would not be in Ireland’s interest, to put it mildly.

WHY IS THERE AN IRISH BACKSTOP?

It puzzles many people in Britain that something known as an “Irish backstop” should be at the heart of an increasingly bitter dispute. The dispute is about the Deal the UK Government has made with the EU on the terms for the UK leaving the EU.

Most people understand that, when the UK leaves the EU, the only land boundary between the UK and the EU will be the 300 mile long border in Ireland.

Some do understand that if the UK leaves the EU there will have to be border controls.

After all, leaving the EU was supposed to be about taking back “control”, and, given that countries can only exercise control in their own territory, there is a logical necessity to have controls at the border of a country’s territory,  at its ports and on its land boundary.

This is not something made up by the EU to annoy Brits, but is a logical consequence of Brexit, which is, as we all know, something Britons have chosen for themselves, and not something imposed on them by the EU.

The proposed backstop in Mrs May’s deal with the EU  involves the whole of the UK staying in a close customs arrangement with the EU.

The original idea was that the backstop would be confined to Northern Ireland, but the UK government itself preferred a backstop arrangement that would cover the whole UK, so as to minimize the controls that would otherwise have to be imposed between Britain and Northern Ireland.

The object of the entire exercise is to avoid having to have controls at the 300 crossing points between Northern Ireland and the Republic of Ireland.

Some in Britain think that the UK should be free to leave the EU, and that the UK and Irish governments should then just decide, between themselves, that they were simply not going to have controls on the Irish border.

That would not work because Ireland would still be in the EU, and would be breaking EU rules if it failed to control its portion of the EU land border.

Apart from being illegal, it would be impractical.

The UK, once outside the EU, would immediately go off and try to make trade deals with non EU countries. These would inevitably involve agreeing to different standards, and different tariffs, on goods coming from these non EU countries to the ones that the EU (including Ireland) would be applying to these countries.

So, if there were no controls on the Irish border, goods from these non EU with which the UK had made its own trade deals could enter the EU via Northern Ireland, without complying with EU standards or paying EU tariffs.

That would destroy the EU Single Market, which is based on common rules and tariffs, made, enforced and interpreted in the same way for all 27 EU countries (including Ireland).

TRADE DISCRIMINATION BREAKS WTO RULES

Outside of the EU, under WTO rules, the UK would also have to impose tariffs on its side of the Irish border, unless it wanted to collect NO TARIFFS AT ALL on goods coming into the UK from any country in the world!

This is because of a WTO rule which, says that, in the absence of a broad trade agreement, a country cannot discriminate between WTO member countries in the rate of tariffs it charges on goods coming from those countries (the most favoured nation rule).

So, in the absence of a trade deal with the EU, the UK must charge the same tariffs on Irish goods as it would  charge on goods coming from any WTO members, with whom it has no trade deal, which, on the day it leaves the EU without a deal, would be every WTO country!

If it attempted to discriminate unilaterally, the UK would be bound to be taken to the WTO court by some or all of the WTO countries who would not be getting the same concessions.

The UK is a trading nation. As such, it benefits from a rules based world trading system. So it would not be in the UK’s interest to start breaking WTO rules on the day it left the EU, just to solve a problem that is of its own making.

SAVING LIVES BY GIVING RESPECT TO THE TWO ALLEGIANCES IN IRELAND

The other big reason for having an “Irish” backstop”, and for avoiding a hard border, is about human beings, rather than just about commerce.

For the past four centuries two communities, with different allegiances have lived together, geographically intermingled, in the Irish province of Ulster.

One community feels a sense of allegiance to Britain, its monarch, its historic narrative and its flag. The other feels an allegiance to Ireland and identifies itself with different historic narrative and different symbols. The two communities have different religious allegiances too but the disagreements between them are not primarily about religious matters, they are all about national identity.

For centuries, the contest between these two identities was a zero sum game.  Either the British identity had to win, or the Irish identity had to win. That zero sum approach led to wars, threats of wars, or uprisings in 1641-51, 1689-1691, 1798, 1867, 1911, 1916, 1919-23, 1939, 1956-7, and 1969-1998. These conflicts caused many casualties in Ireland, and in Britain too.

British and Irish political leaders have for the last 40 years been trying to find a different way forward. Rather than a zero sum game, where if one identity won, the other had to lose, these leaders sought to create conditions in which both identities could coexist comfortably together within Northern Ireland, without either of them winning or losing.

The aim was to ensure that neither would feel cut off from their focus of their emotional allegiance. The nationalists would not feel cut off from Dublin, and Unionists would not feel cut off from London or the “mainland” as they would call it.

The Belfast Agreement of 1998 achieved this. Crafted between Ireland and the UK, when both were members of the barrier free EU, it created structures to create a comfort zone for both communities.  This was done through establishing three interlocking structures of cooperation, incorporated in an over arching international Treaty, namely

  1. power sharing within Northern Ireland,  
  2. cooperation between North and South and
  3. cooperation between Dublin and London.

On the strength of this Agreement, Ireland changed its constitution to remove a  territorial claim it had on Northern Ireland.

Now, 20 years later, the UK’s decision to leave the EU puts these structures at risk, because, for the reasons I explained earlier, Brexit requires barriers to go up between the UK and Ireland, where previously there was free exchange.

This is why, at a meeting in London, long before the Referendum, I described Brexit as an” unfriendly act”  by the UK vis a vis my country.

The backstop is simply an effort to mitigate the damage. It is a second best option…… and a bad second best at that.

The only option that will not damage the structure of peace, we have so painstakingly built between Ireland and Britain, and within the island of Ireland, would be for the UK to decide to stay in the EU after all.

WHAT HAPPENS IF THERE IS NO BREXIT  DEAL?

The European Commission has produced a paper setting out the preparations that will have to make for a “No Deal “ Brexit, and what would have to done to deal with it.

I have extracted some of the interesting quotations from it.

It is quite explicit in some respects, but those who say there will be no hard border in Ireland in any circumstances will need to seek further clarification from the Commission.

BORDER CHECKS

The Commission paper says

“Member States, including national authorities, will play a key role in implementing and enforcing EU law vis-à-vis the United Kingdom as a third country. This includes performing the necessary border checks and controls and processing the necessary authorisations and licences.”

It adds

“The Commission is working with Member States to coordinate the measures they adopt to ensure that contingency preparations are consistent within the European Union”

and says that

“Member States should refrain from bilateral discussions and agreements with the United Kingdom, which would undermine EU unity”.

THE IRISH CASE

The Commission paper recognises that Ireland has a particular problem with Brexit.

It says its stands ready to  explore pragmatic and efficient support solutions, in line with EU State aid law and that it

“ will support Ireland in finding solutions addressing the specific challenges of Irish businesses.”

But it does not say that Ireland would be exempt from applying the EU Customs controls on the border between Ireland and Northern Ireland.

This omission does not seem to tally with statements being made by some in Ireland.

It is unclear what sort of help the Commission will be able to give Irish businesses.

78 DETAILED PAPERS AVAILABLE

In order to assist stakeholders in their preparation for the withdrawal of the United Kingdom, the Commission has published 78 detailed sectoral information notices guiding individual industries on the steps to be taken.

It would be useful to scrutinize these papers as to their application to business between Ireland and Northern Ireland.

Contingency measures in the immediate aftermath of a No Deal Brexit will in general have to  be

“temporary in nature, and should in principle not go beyond the end of 2019”

AIR TRANSPORT DISRUPTIONS

In the area of air transport, the withdrawal of the United Kingdom, without any arrangement in place at the withdrawal date, and without operators concluding the necessary and possible alternative arrangements, will lead to abrupt interruptions of air traffic between the United Kingdom and the European Union, due to the absence of traffic rights and/or the invalidity of the operating licence or of aviation safety certificates.

Regarding traffic rights, the Commission says it will propose measures to ensure that air carriers from the United Kingdom are allowed to fly over the territory of the European Union, make technical stops (e.g. refuelling without embarkation/disembarkation of passengers), as well as land in the European Union and fly back to the United Kingdom. This will create a really difficult situation for UK airlines

ROAD TRANSPORT DIFFICULTIES

Regarding road transport, in case of no deal scenario, as of the withdrawal date, UK hauliers will have market access rights limited to the permits offered under the European Conference of Ministers of Transport (ECMT) which would allow for considerably less traffic than what currently takes place between the Union and the United Kingdom.  This will have serious implications for Irish businesses using UK hauliers to get goods to the continent.

In the case of a no deal scenario, as of the withdrawal date, goods entering the European Union from the United Kingdom will be treated as imports and goods leaving the European Union to the United Kingdom will be treated as exports.

COLLECTION OF DUTIES AND TAXES

The Commission says that all relevant EU legislation on imported goods and exported goods will apply, including the levy of certain duties and taxes (such as customs duties, value added tax and excise on importation), in accordance with the commitments of the European Union under the rules of the World Trade Organisation.

The need for customs declarations to be presented to customs authorities, and the possibility to control shipments will also apply.

The Commission paper does not say that the border in Ireland would be exempt from this. This will need to be clarified.

The Commission calls on Member States to take all necessary steps to be in a position to apply the Union Customs Code and the relevant rules regarding indirect taxation on 30 March 2019, in case of a no deal scenario, to all imports from and exports to the United Kingdom. Again there is no explicit, or implicit, exemption for the EU border in Ireland.

Customs authorities may issue authorisations for the use of facilitation measures provided for in the Union Customs Code, when economic operators request them, and subject to relevant requirements being met.

Ensuring a level-playing field and smooth trade flows will be particularly challenging in the areas with the densest goods traffic with the United Kingdom. The Commission is working with Member States to help find solutions in full respect of the current legal framework.

The paper also deals with financial services and with residency rights for UK citizens living in EU countries.

ANIMAL AND PLANT HEALTH CHECKS WILL BE NECESSARY

The Commission says that, in the event of a “No Deal” goods will have to undergo sanitary and phytosanitary controls by Member States authorities

“at Border Inspection Posts, which is a matter of Member State responsibility”.

Ambiguity about how all this might apply on the Irish border does not help businesses with their contingency planning.

 

UK LABOUR STANCE ON BREXIT WILL BE CRUCIAL

The worst possible outcome of Brexit for Ireland would be the UK crashing out of the EU, without a deal, next March because the UK Parliament cannot make a decision. The key to avoiding this disaster is in the position of the British Labour Party.

So far, the focus of discussion in regard to Brexit has been on whether the minority Conservative Government can reach sufficient consensus internally, to make a deal to withdraw the UK from the EU.

But such a deal can only come into effect if it is approved by the House of Commons.

Here the stance of the British Labour Party is crucial.

If Labour were open to supporting the deal, or even to abstain in the vote, the DUP and the hardline Conservative Brexiteers would not be able to stop it.

On the other hand, if Labour, the DUP, and the hardline Brexiteers all oppose it, the deal will not come into effect.

There would then be massive political uncertainty, the likelihood of the UK crashing out of the EU on 29 March, and a huge blow to the global economy.  One could then blame on the DUP and the hardline Brexiteers, but Labour, as the bigger party, would bear more responsibility than the others for this debacle.

LABOUR’S  “SIX TESTS” ARE BESIDE THE POINT

The Labour Party has set six tests that it says the Withdrawal Agreement must pass, if Labour is not to vote against it in the House of Commons. On close examination, the tests seem to be designed to allow Labour to vote against any conceivable deal that Mrs. May could negotiate on a Withdrawal Treaty.

These tests that Labour says the Withdrawal Agreement must pass  are;

“Does it ensure a strong and collaborative future relationship with the EU?”

Comment. This is impossible because the future relationship will not be negotiated now, but later during the transition period.

“Does it deliver the “exact same benefits” as we currently have as members of the Single Market and Customs Union?”

Comment. This is also impossible because there would be no point having an EU Single Market or Customs Union, if, as a  non member, the UK could get all the benefits that members get. In any event, these issues will not be settled in the Withdrawal Treaty.

“Does it ensure the fair management of migration in the interests of the economy and communities?”

Comment.  The UK has not yet finalized its OWN future migration policy so it is unreasonable to expect the Withdrawal Agreement to do what the UK government itself has been unable to do. In any event, what would Labour’s migration policy be?

“Does it defend rights and protections and prevent a race to the bottom?”

Comment. This is not going to be settled now. It will be the subject of the future trade negotiations and the EU will be doing its best to ensure that the UK, outside the EU, does not reduce quality, environmental and labour standards to win market share.

“Does it protect national security and our capacity to tackle cross-border crime?”

Comment.  Again this is for the future negotiation, not for the Withdrawal Agreement. The only way the UK can take part in the European Arrest Warrant is by staying in the EU and accepting the jurisdiction of the European Court of Justice. National Security policy is the responsibility of member states, not the EU, and cannot be bound by an agreement made by the EU.

Does it deliver for all regions and nations of the UK?

Comment. This is a matter for the UK government, not for the Withdrawal deal from the EU.

So the Agreement cannot pass these tests, for the simple reason that none of these six matters can be finalised until later.

They are not valid tests for a Withdrawal Agreement, and the Labour Party should know that.

It is true that the Withdrawal Agreement will be accompanied by a political declaration about the framework for future relations between the UK and the EU. But, legally speaking, this declaration cannot give binding commitments on the six points raised by Labour.

In fact, on some of these matters, like security policy, are ones where the EU could not give commitments, even in a future Trade agreement, without the consent of the legislatures of each of the 27 member states of the EU.

The Labour Party knows this perfectly well.  Choosing six tests designed to give a basis for rejecting any Agreement Mrs. May could negotiate would be a legitimate and normal opposition tactic, if the government had an overall majority. But it does not. It depends on an agreement with the DUP, which the DUP has said it is prepared to break.

AND WHAT HAPPENS IF LABOUR DEFEATS  THE DEAL IN PARLIAMENT?

Let us assume Labour wins a vote to reject the Withdrawal Agreement Mrs. May makes, what does Labour do then?

Obviously, Labour would like either a General Election or a change of Government in this Parliament.

But , even if that happens, a Labour led Government could not have time to negotiate a new Withdrawal deal,  that would pass its own six tests, between now and the 29 March next year, the date on which the UK will be out of the EU, deal or no deal.

The only way Labour could pass its own six tests would be by withdrawing the Article 50 letter written by Theresa May, and seeking to keep the UK in the EU after all.

There is legal doubt as to whether the UK has the power to withdraw its Article 50 letter. The European Court of Justice would have to adjudicate on that.

Secondly, staying in the EU after all, would require a second Referendum.

A second Referendum would have a lead time of 22 weeks, from the decision to hold one to Polling Day. This is because of the requirements of the law in Britain. 

A special Bill for a Referendum would have to pass in both the Houses . This twenty-two week delay would bring us beyond the UK ‘s automatic exit date of 29 March, unless the UK had first got permission to withdraw the Article 50 letter.

All this has huge implications for the whole of Ireland, not just the border.

So, to avoid a crash out Brexit, Irish diplomacy now needs to focus on the Labour Party as well as on the Conservative Government.

TWO OPTIONS…BOTH DIFFICULT

The Labour Party needs to be persuaded to come off the fence and either

  •    back a realistically negotiable withdrawal deal or
  •    say clearly that it would prefer the UK to say in the EU.

Labour could then base their parliamentary tactics on whichever of those two options they prefer. Either would be less disastrous than the present fudge.

WHAT IS AT STAKE IN THE EU’S DISPUTE WITH POLAND?

Brexit is not the only problem challenging the integrity of the EU’s single market.

Last week the European Court of Justice(ECJ) ordered the Polish government to stop appointing new Judges.

In December the Venice Commission, a body set up by the Council of Europe (which is independent of the EU), said that elements of the reform of the judiciary being undertaken by the present Polish government  

“ bear a striking resemblance with the institutions that existed in the Soviet Union”

One of the authors of that report was the distinguished Irish barrister, Richard Barrett, who worked at one time in the Irish Attorney General’s office.

The EU is a system of rules and the EU can only survive if its rules are fairly and uniformly enforced by the courts of the 28 member states.

The European Union is a common market precisely because it has a common system for

  • making,
  • interpreting, and
  • enforcing

common rules that apply directly to the citizens of its member states. These common rules are interpreted, in the first place, by the national courts in each of the member states. So the integrity of national courts is vital for the EU.

This issue lies at the heart of the difficulties the UK is experiencing, as it tries to leave the EU, still enjoy the benefits of the EU’s common market for goods, but without taking part in the common system for making, interpreting, and enforcing the rules of the common market.

In a very different way, this same issue is at the heart of the disputes, between the European Commission and the governments of Poland and Hungary, about the independence of their judicial systems.

If one is living or doing business in Poland, the only way one can get one’s Common Market rights is by going, in the first place to the Polish courts. This course should be open to you, whether you are a Polish citizen or not, and whatever political opinions, or status vis a vis the government of Poland.

The EU insists that courts be independent so that everyone can enforce their EU rights, as equal EU citizens, anywhere in the EU, at all times.

This rigorous insistence on the rule of law is one of the reasons many European countries want to join the EU, so that they can get the EU seal of approval for the rule of law in their county, and thus be attractive to overseas investors and other visitors.

I visited Serbia recently , and heard that country’s Prime Minister, Ana Brnabic, stress that accession to the EU was the number one priority for countries in her region. She said that the rule of law and transparent administration, demanded as preconditions for Serbian membership of the EU, are crucial to winning foreign investment and access to cheaper finance for Serbia.

So, if the Polish courts were to be allowed become politicized, and were perceived to no longer be objective in all circumstances in interpreting EU law, and Poland still tried to continue to enjoy all the privileges of EU membership, that would damage the EU as a whole, as well as Polish citizens. It would discourage investment in Poland. Worse still, it would remove part of the reason for the existence of the EU…the rule of law.

The European Commission started proceedings against Poland under article 7(1) of the EU Treaties over aspects of the restructuring of the Polish judiciary. It was on an application to it by the European Commission, that the ECJ ordered the Polish government to stop appointing a large number of new judges to its Supreme Court in recent weeks.  The ECJ feared the new appointments might politicize the Polish courts.

The Polish government is able to propose this large number of new appointments because it is compulsorily retiring up to 40% of existing judges, on the basis of newly introduced upper age limits.

The well founded fear is that it will replace these compulsorily retired judges, with judges sympathetic to the views of the present government. The age limit will not, indeed, be applied uniformly. The government will be able to grant discretionary extensions to some judges, presumably those whose judgments it likes.

This comes on top of a merger of the offices of the Minister for Justice and the Public Prosecutor. This merger creates a fear that prosecutorial decisions will also be politicized. The independence of the DPP’s office in Ireland was one of the important reforms made in Ireland in the 1970’s, and it has been carefully protected by successive Taoisigh since then.  

The Polish “reforms” also provide that the President of the Republic, not the court itself, would establish the rules of procedure for the Polish Supreme Court, determining which categories of judge would hear what sort of case. Again this is unacceptable political interference.

In the Venice Commission’s report, co-authored by Richard Barrett from Ireland, the Commission concluded that the Polish government’s proposed mechanism for an extraordinary review(and possible reversal) of past judgments was

“dangerous to the stability of the Polish legal order”

and said it was “problematic”  that the mechanism is retroactive,  and allows the reopening of cases decided  before the proposed law was to be enacted. This is an understatement.

The Venice Commission concluded that the proposed legislative and executive power to interfere in a severe and extensive way in the administration of justice

“pose a grave threat to judicial independence as a key element of the rule of law”.

It is very important for the EU that the Polish government realizes that it is not enough just to have free elections. A country cannot enjoy the benefits of EU membership, or of democracy, unless it respects the rule of law which is enshrined in Article 2 and Article 7 of the EU Treaties.

The credibility of the EU, and the integrity of the EU Single Market, is at stake in Commission ’s dispute with Poland, to an even greater extent than it is with the UK’s attempt to “have its cake and eat it” on trade!.

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