28 February 2019

If the UK leaves the EU without a deal then the Irish border question becomes a painful one for the EU to answer, writes Alex Stojanovic.

The challenge of finding a solution to the Irish border question does not end if the UK leaves the EU without a deal. Instead, it will fall to the EU. In the event of no deal, the EU will be faced with a trilemma: how can it protect the integrity of the Single Market without insisting on a hard border in the island of Ireland or checks between the Republic of Ireland and the other 26 EU countries?

Neither the Irish not the British government will establish a hard land border

The arguments against a hard land border are well known: the risk of reintroducing potential terrorist targets, and the logistical problems of dealing with the 200 plus border crossing points and the daily crossings by Irish and British citizens.

The Irish government rejected any suggestion from Brussels that it might be forced to introduce checks at the border, and the UK Government has repeatedly said that it will not do this either. What the UK will do in the event of no deal is not clear, but it is intending to publish some guidance on what the trading arrangements will be.

Imposing a border between Ireland and the EU26 is likely to face legal challenges

If a hard border on the island is not an option, the only way to protect the Single Market against risks from goods crossing from the UK is by enforcing a border between the Republic of Ireland and the EU26.  “Dedramatised” checks on ships or in ports - as proposed by Michel Barnier - between GB and Northern Ireland would avoid tensions at the Northern Ireland border, but it doesn’t solve the issue of collecting tariff revenue from goods entering the Republic of Ireland from Northern Ireland.

As an EU member, the Republic of Ireland is also entitled to the free movement of goods, and the EU would be undermining its commitment to protect the interests of small member states if it required checks between the EU26 and Ireland. Any such decision could be challenged in the ECJ – and if the port and sea checks were found illegal, the controls would then have to be applied at the border with Northern Ireland.

A third way of managing the border brings logistical and political problems

Michel Barnier’s call for “an operational way of carrying out checks and controls without putting back in place a border” implies that, in the event of no deal, the Commission and Ireland might try something like the “Malthouse compromise” proposals for behind the border customs checks. For regulatory checks the EU could legislate to allow for temporary waiver of border requirements (with some behind the border enforcement in the Republic of Ireland.)

But this has problems too. Behind the border checks rely on upfront payment and controls at either end of the journey across the border to ensure a trader has complied, and while that might work for large traders it will be difficult for small ones that criss-cross the border. It would also require behind the border checks to be increased, a development which could be both intrusive and exposed to risk. Putting this sort of scheme in place would also be politically difficult for the EU, as it would allow backstop critics to argue that “alternative arrangements” were a feasible way of managing the border all along.

The backstop is the best solution for the EU and Ireland – and their own future relationship   

Most of the impacts of no deal fall disproportionately on the UK rather than the EU, but a no deal Brexit would force some very unpalatable choices on the EU27. It would bring into direct conflict two of their negotiating red lines: avoiding a hard border in the island of Ireland and protecting the integrity of the Single Market and Customs Union.


"...the controls would then have to be applied at the border with Northern Ireland."
So, post no-deal Brexit the EU will have no choice but to tell Ireland to begin preparations to implement a hard land border. Other EU land borders tend to involve 5m chain-link fencing topped with razor-wire whenever they are close to accessible roads...

This is ugly for the EU, and even uglier for Ireland, but they will be left with little choice ...

...Except that the UK will now be in the position of having to re-negotiate *everything* about its relationships with all its nearest neighbours from scratch, starting from a position with the least possible leverage, having completely squandered all the time available in a far more advantageous position with better-disposed counter-parties, along with every available gramme of patience and goodwill.
Furthermore, it will be critically dependent in many respects on the generosity of the EU in having put forward unilateral arrangements to offset and soften some of the most critical sudden impacts of 'no-deal' (concessions which have been unwisely celebrated by Brexitists as "blinking first", etc.)

The EU, on the other hand, will have collectively arrived at the solid conclusion that the UK is too politically ignorant and self-indulgent to be a reliable partner. The dynamic will therefore change from one of trying to preserve the best of a loosening relationship with a valuable partner, to one of trying to contain the damage caused by an unruly and uncooperative competitor, or even adversary.

The EU will be forced to deploy such pressure as is necessary to safeguard its interests and those of its members: continuing UK intransigence over the deep regulatory alignment between NI and the Republic required in practice to respect and preserve the spirit and achievements of the GFA will have the inevitable result of dragging in many many other issues as leverage.
"Unfair!" will squeal the Brexitists, pleading about oppression: "Come and see the violence inherent in the system!"
Yet if one repeatedly insists, no matter the mismatch in size, on taking the ring to fight against a giant sumo champion, insists on having the beating of him, then, sooner or later, no matter how averse to harming you he is, he will surely dump you out of the ring in a painful and undignified mess!

At this point, the UK Government will find itself deep at the bottom of a gaping hole which it has dug itself with wild talk of blackmail, annexation, "no leader of the UK or any country could ever...", etc, with no room to manoeuvre or trim its direction.

The ring is set for a painful and eye-wateringly expensive trial of brute strength...

Yet, if we can see all of this now, how is it possible that the UK's so-called leaders can *not* act to avoid plunging down a path that can only lead to disaster? The only explanation I can imagine is that we are now so hopelessly lost in the wilderness that nobody involved has any better plan than to pray for an impossible miracle.

The solution to Ireland, if, indeed, there is one, will be the same whether or not there is a deal.
With a backstop in place there is no incentive for the EU to find a solution. Better to leave without a deal; that is the only way a solution will be found expediently.

The border with Ireland has always been the reposibility of the EU in a no deal exit. It will be their red lines which they will have to deal with the UK can apply the good friday agreement leave an open border. There by letting the EU and Ireland deal with it.