Brexit: Facing up to sovereignty in Ireland

London and Dublin must fulfil sovereign duties and make post-Brexit border work

The government of Theresa May has failed to take responsibility as the sovereign power in Northern Ireland,  instead trying to please everyone with unachievable goals. Photograph: Joel Rouse – Crown Copyright via Getty

The government of Theresa May has failed to take responsibility as the sovereign power in Northern Ireland, instead trying to please everyone with unachievable goals. Photograph: Joel Rouse – Crown Copyright via Getty

 

We have always believed it would be better if Ireland were united under one sovereign Irish government. But in voting for the Belfast Agreement, Irish people, North and South, decided that, subject to the continuing consent of Northern Ireland’s voters, sovereignty over the northeastern six counties should remain with the UK, even if people in the North can opt for British and Irish citizenship.

In those six counties, you pay your taxes in sterling to Her Majesty’s Revenue and Customs; if you evade your taxes, you may have to face the crown’s courts. This may all seem obvious but it has a less well-understood consequence, one that alarms many people in Ireland and Britain. Brexit is not possible without Britain exercising its sovereignty in Northern Ireland.

This is alarming because we tend to think of sovereignty (especially British sovereignty in the North) as a question of soldiers, prisons and union flags. But sovereignty is really a question of taking ultimate responsibility for the fate of a territory and its people.

In Northern Ireland, that responsibility still belongs to Britain, although British governments have never shown much capacity to face up to it. For decades after partition, Westminster devolved responsibility to local sectarians and turned a blind eye to the discrimination and oppression that resulted. The “Orange state” was bound to fail eventually and, when it did, Northern Ireland was plunged into a quarter of a century of violence. That sorry story is testament not to the strength of British sovereignty but to its weakness.

Since the Brexit referendum, the government of Theresa May has persisted with tradition and failed to take responsibility as the sovereign power in Northern Ireland. Instead, May has tried to please everyone by setting out three goals that cannot be achieved at the same time. These are 1. taking the UK out of the single market and the Customs Union, without 2. establishing a customs border between North and South or 3. a border in the Irish Sea. “Constructive ambiguity” of this kind may be in the spirit of the Belfast Agreement, but it will not work for Brexit.

Constructive ambiguity

If Brexit is to happen while Britain remains responsible for Northern Ireland then the UK is stuck with putting in some sort of customs control on the existing border. The alarm on all sides is that this assertion of sovereignty will undermine the constructive ambiguity that has been an important aspect of the peace process. Alarm is one thing, but alarmism is another. Given the history of violence, British and Irish Remainers have been no less irresponsible than the British government.

From the beginning, Remainers have talked of the dangers of a “hard border”, evoking images of the old militarised border. The disappearance of that old border was a vital symbol of the peace process and of official recognition of the aspirations of northern Nationalists. But the British government has never suggested bringing back such a border and almost nobody thinks that one will be necessary. Brexit will require an external EU land border with cameras and electronic customs-clearing arrangements. But the inconveniences of a border can be significantly lightened using trusted trader status provisions, including exemptions for small traders. Spot checks may be necessary, but intelligence-led checks looking for drugs or illegal immigrants have been carried out in border areas during the past 20 years.

PSNI warnings that dissident republicans may use Brexit as an opportunity to gain support have also been prominent in debates. But dissident republican violence has causes that are independent of Brexit, rooted in the austere economic stasis and institutionalised sectarianism of Northern Ireland under the agreement. Brexit may provide the hardliners with some symbolic ammunition but, even without it, they will find plenty of other opportunities if the current paralysis in the North continues. Recent academic studies of the views of people living in Border areas highlighted some fears about Brexit’s impact on the peace process. But it also documented in detail how people’s concerns are overwhelmingly practical, focused on the cross-Border nature of everyday life.

Transitional period

A responsible approach would have been for Britain to set out clearly the need for some customs controls, emphasising the economic, symbolic and security reasons for keeping the Border infrastructure as minimal as possible, and recognising that the process would take time and require an extended transitional period. London and Dublin should then have made a concerted effort to tackle the complex technical and legal arrangements. Instead, we find ourselves at an impasse, with the looming danger of serious economic difficulties for the Republic in the event of a “no deal”.

Rather than accept its responsibilities as sovereign from the very beginning of the process, the British government opted for fudge. Last December’s backstop emboldened the EU to push for something that there is almost no chance of the UK government agreeing to – a trade border in the Irish Sea, a proposal at least as disruptive in principle to the agreement as a customs border on land. If the EU27 do not change their position, and if they reject the UK’s latest ‘Chequers’ proposal, then the options are no Brexit or no deal. The first amounts to the EU making it impossible for the UK government to implement a democratic decision, an option that might seem unproblematic in Ireland but has incalculable political effects in Britain. If May does not buckle, then there will be no deal.

A Border poll in the North might resolve the sovereignty question, and we would welcome that. However, there appears to be limited political appetite for such a poll. It is therefore past time that the governments in London and Dublin faced up to their sovereign responsibilities. They should drop the backstop and work together to introduce a minimal land border, and to achieve a future UK-EU trade agreement that preserves the close links between the two countries.

Peter Ramsay teaches law at the London School of Economics and Chris Bickerton teaches politics at Cambridge University. They contribute to thefullbrexit.com

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