As talks begin, keep your eye on the border

After a year of posturing, the serious business of Brexit begins this morning in the Berlaymont Building, EU Commission headquarters in the centre of Brussels. Statements from London overnight indicate that there has been no retreat –  the UK intends to leave the single market and the customs union.

The EU has set out three preliminary issues on which progress must be made before talks can begin on a future trading relationship with the UK:

  1. The divorce bill, variously estimated at £45 billion (net of the UK’s share of assets) to 100 billion Euro gross. If the calculation method can be agreed, actual amounts could be left to long-term arbitration.
  2. Reciprocal citizens’ rights in the UK and the EU, liable to be quite complicated in the area of pensions.
  3. The Irish border.

We have been subjected to so much high highly charged rhetoric on this third issue that it is now time to stand back and question what we actually know. No one on the planet, it seems, is in favour of a ‘hard border’, but few attempt to define what they mean. With a bit of goodwill and common sense it is easy enough to avoid a hard ‘people’ border with passport checks or visas. With regard to goods, however, the issue is pretty clear: if the UK leaves the customs union there will be a hard border with customs, animal disease and food standards controls.

EU chief negotiator Michel Barnier will be guided by one over-riding principle of the mandate he has from the European Council (of the remaining EU27): to protect the integrity of the EU, its single market and its customs union. This can only be done by taking an absolute position on the need for controls at the EU’s external borders.

On the other hand, Barnier has already stressed the need to protect the peace process (stressing his personal knowledge of and commitment to it). He has expressed understanding of the linkage between the process and free movement on the island of Ireland, as have other European leaders. And the issue of a united Ireland within the EU has been dealt with on the basis of the German precedent.

Politicians in Ireland and the UK, when stressing their desire for a soft border, often seem to be addressing Barnier and the EU. The facts of the situation, however, are that no accommodation on the Irish border can possibly come at the cost of a unilateral derogation from the principle of EU integrity. While there are some ‘special status’ arrangements on EU borders, none of them creates a precedent for such a derogation.

The three issues for early negotiation listed above were set out by the EU. There is a very strong sense on the continent that the EU positions on them have been known for a very long time and frequently reiterated, and that the onus is now on the British side to set out potential solutions.

The UK is the sovereign power in charge of the peace process and of the territory of Northern Ireland. It seems logical that any softening of an EU external border would have to involve some derogation from UK sovereignty in respect of the north, since the EU has none to derogate from.

So the issue is not really how hard or soft the border between the EU and the UK will be – we know that – but rather where it might be. A soft border on the island of Ireland really implies a hard border around it, and always has done.

People calling for ‘special status’ need to think about this. Some sort of special arrangement for the north is not impossible for the EU, but it would imply far greater special status for the north within the UK. It has been described, for example, as something like the situation of Norway which is outside the EU but in the European Economic Area. The customs would not be at Carrickarnon and Bridgend, but at Cairnryan and Heathrow. Business as usual across the border, some problems with the British market but no meltdown, no danger of a return to violence. For such a small population, any subvention to the EU budget should be acceptable.

If David Davis puts forward an idea like that today, Barnier will probably nod appreciatively and ask him to submit a paper next week. Then he will ask him to clarify that Britain is actually prepared to reduce its sovereignty in Northern Ireland. Davis will say he is just floating the idea and will specify the sovereignty implications later. He would have to come back to London and report to Theresa May. Nicola Sturgeon would go ballistic. And May would have to consult Nigel Dodds. Oh dear.

Anyone who wants to see a soft border must confront this issue of sovereignty.