Brexit - full alignment with history?

When the UK first sought entry to the EEC in the early 1960s, Northern Ireland and its relationship to the Republic of Ireland barely featured at all in the negotiations. The main point of Unionist opposition to EEC entry was the possibility of labour migration from the Republic of Ireland to the North, which was constrained by the 1947 Safeguarding of Employment Act (Northern Ireland). This act required people moving to Northern Ireland, including British citizens, to obtain a work permit. Ostensibly enacted to prevent competition for employment, the real political rationale of this legislation was to limit labour migration by Catholics from the Republic of Ireland (or “safeguarding the constitutional position by denying access to vagrant and rapacious Southern Irishmen”, as one Ulster Unionist MP put it in the racist vernacular of the era). If the Republic of Ireland joined the EEC alongside the UK, as it planned to do, the act would likely breach the freedom of movement articles of the Treaty of Rome.

In the end, De Gaulle exercised his veto, and this debate became a footnote in the official history. The same will not be said of the role of the island of Ireland in the Brexit negotiations, which has now become the fulcrum of the future relationship between the UK and the EU. This is because the conclusions of Phase 1 of the negotiations between the European Commission and the UK government contain extensive commitments specifying that there will be no hard border between Northern Ireland and the Republic of Ireland or barriers to trade within the UK as a whole, and that the Good Friday Agreement will be fully upheld. These commitments necessarily have profound implications for the totality of any future Brexit deal. The critical paragraphs are these:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all- island economy and the protection of the 1998 Agreement.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.

Earlier paragraphs in the text also rule out “any physical infrastructure or related checks and controls” on the Northern Irish border, and stress the importance of a common EU law and policy framework for the operation of North-South cooperation. Essentially, trade on the island of Ireland must be unhindered, and any divergence between the UK and Northern Ireland necessary to enable this can only happen if Stormont agrees to it.

The UK position appears to be that a comprehensive free trade agreement and “overall relationship” with the EU can suffice to meet these objectives. The European Commission drily notes in its report on the agreement that “This intention seems hard to reconcile with the United Kingdom’s communicated decision to leave the internal market and the Customs Union.” Leaving the single market and customs union implies precisely the checks, payments and controls at the border which the agreement rules out, which is why the text goes on to promise that the UK will propose “specific solutions” – ie. technological fixes – to enable cross-border trade to take place without customs posts. Yet the implausibility of a technological solutions is anticipated in the very next sentence: in the absence of “agreed solutions”, the UK will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all- island economy and the protection of the 1998 Agreement.

This sentence has given comfort to those advocating a soft Brexit. As David Allen Green notes, “almost any aspect of the single market, and many aspects of the customs union, can be brought within this definition.” And if “full alignment” applies to Northern Ireland, it must – by dint of the Democratic Unionist Party veto – apply to the whole of the UK unless otherwise agreed.

Does this make EEA membership – the Norway option – more likely? That currently looks like a political stretch too far, since the bulk of the Tory Party is firmly against it, and the Labour Party is split on single market membership. Without Labour Party support of the kind Nicola Sturgeon has been demanding in recent days, there is no Parliamentary majority for staying in the single market (though Labour could shift position to favour a new UK-EU customs union, as Keir Starmer indicated this week).

But it will take Herculean negotiating skills to square a “Canada+” style free trade deal with the requirements of the Phase 1 agreement, while at the same time ensuring that any deal is WTO compliant. A separate track of negotiations on future UK relations with Ireland has also been maintained in Phase 2, guaranteeing that Irish diplomats will play a decisive role in the future trade framework negotiations and an eventual final deal.

In 1963, it was the Commonwealth – Britain’s “great escort”, as De Gaulle put it – that stood in the way of UK accession to the EU. In an irony of history, it will be Ireland – England’s “first colony” – that determines the course of Brexit.