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?
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.
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.
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.
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.