The Irish border conundrum

Agreement has now been reached on moving on to the second stage of Brexit negotiations. Irish border concerns, which scuppered the deal earlier this week, have been addressed by a form of words to which all parties can sign up. The issue of the border itself has not been resolved but wrapped into the broader question of the future UK-EU relationship, with what amounts to a proviso that, if it is not resolved in that way, there may need to be a tailored solution.

In a purely geographical sense, there are two borders involved, between the UK and the EU (across the island of Ireland) and between Great Britain (England, Scotland and Wales) and Ireland (across the Irish Sea).

In wider sense, the borders have at least three meanings. One is functional, to do with trade, linkages in production chains and public services. At present, the European Single Market and customs union deal with these matters, effectively eliminating the Irish border, including the need for physical controls. The Belfast (Good Friday) Agreement provides a framework for all-Ireland cooperation on public services.

The second meaning is constitutional and political. The Belfast Agreement preserves the political border between the two parts of Ireland by guaranteeing that Ireland cannot be united without the consent of the people of both parts.

The third meaning is cognitive, that is, in the mind. Borders provide a sense of security to peoples. The Northern Ireland settlement assures unionists that the border is there, while assuaging nationalists by removing its physical presence. This understanding of borders is very delicate and all manner of events can cause tensions to flare and insecurities to return.

For nearly twenty years, a combination of the EU Single Market and the Belfast Agreement have allowed these three dimensions of the Irish border issue to be managed. Students of the European Union talk of ‘neo-functionalism’, the theory that, if there is functional integration on practical matters, politics, institutions and people’s perceptions will come into line. Similar hopes were vested in the Northern Ireland peace process and the border issue so that, over time, the border will fade in importance.

The European Union has complemented the Belfast Agreement in many ways. Cognitively it has encouraged thinking about multiple national identities and shared sovereignty. Functionally, it has opened the Irish Border and allowed the elimination of physical controls. It has funded cross-border cooperation. There is very little in the Belfast Agreement about Europe and no obligation (as opposed to illustrative examples) for the two states to cooperate on European matters. In practice, as Anand Menon has shown, European regulations underpin a great deal of the subsequent cooperation.

Neo-functionalism, however, has its critics, who argue that function, politics and popular identities do not always move at the same pace, either across Europe or within Ireland. At other times, they are deeply entangled.

The strategy of the UK and Irish governments and the European Union in dealing with the Irish border and Brexit has been to try and focus on practical, functional questions, to park the constitutional/ political questions and to steer around the cognitive issues. Unionists and nationalists in Northern Ireland have not always shared this approach. Sinn Féin has talked of ‘repartitioning Ireland’, while the Democratic Unionist Party has warned of a threat to the Union.

One solution floated in recent months is for Northern Ireland to remain in the single market while also remaining in the United Kingdom; the Scottish Government has made a similar proposal. It has been described as putting the ‘border in the Irish Sea’. This is problematic on the functional dimension because, if Northern Ireland were in the Single Market (and possibly customs union) and Great Britain outside, there would be economic barriers between the two. Northern Ireland does a lot more trade with Great Britain than it does across the Irish border. Whatever the functional merits of the proposal, the expression ‘border in the Irish Sea’ was a provocation to unionists, raising political fears and touching a raw cognitive nerve. Its advocates later tried to drop the phrase, but the damage was done. The very idea of a differentiated deal for Northern Ireland, while it may seem logical from a functional point of view, raises unionist hackles. People may argue that Northern Ireland is already different but that was part of delicate compromise under which both sides conceded part of their aspirations back in 1998 and which can be reopened only with great caution.

Interestingly, recent research by John Coakley and John Garry has shown that citizens themselves may be rather flexible and open-minded about border controls of various sorts. This reminds us that these are not just matters of hard fact but of perception and the way the issue is framed. A particular border question is given meaning when political leaders decide to make it so and this can happen in unexpected and unpredictable ways.

Basically the problem is not where the functional border should run, but the existence of that border itself.

The UK Government for a long time seemed to take the view that the problem could be resolved by technical means. They understood that the physical border has a strong symbolic and cognitive meaning and insisted that there would be no visible border, or physical structures (the wording changes over time). Instead, customs posts could be placed away from the border, clearances for shipments could be done online, vehicles could be tracked by number plate recognition and migrants could be checked at the place of work. Yet a virtual border is still a functional border and regulatory differences (and perhaps tariffs) would remain.

The latest deal seeks to address all these issues, with a large dose of the ‘constructive ambiguity’ that has characterized the Irish peace process. There is a hope that, with a close relationship between the UK and the EU, or ‘soft Brexit’, many of the functional issues will become moot. The need for regulations on both side of the border to remain consistent in order to allow an open border has given rise of a number of expressions: regulatory harmonization; an absence of regulatory divergence; and now regulatory alignment. Yet the deal collapsed on Monday less because of differences in the details of regulation but because the Democratic Unionists feared the political, constitutional and cognitive implications of regulatory divergence, which could create a new border, however invisible, within the United Kingdom.

The revised version accepted on Friday addresses this by incorporating assurances about the political dimension of union. It also hints at a hope that a soft Brexit could resolve the functional issues, by providing regulatory alignment between the EU and the UK as a whole. Should this not come to pass, however, the issue of a differentiated settlement will come back. There is little in the new text to help us here. The new agreement stipulates that 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.’

This provides ample material for arguments in the course of the next round of negotiations. Even then, the new agreement stipulates that if such alignment means losing alignment with the rest of the United Kingdom, the Northern Ireland Assembly will have to agree. That in turn requires agreement of both unionists and nationalists.

It remains the case that unionism and nationalism in Northern Ireland remain far apart. A difficult relationship, marked by a breakdown of the power-sharing Executive, has been made worse as the two sides are pulled further apart over Brexit. Workable functional institutions are needed in Ireland but resolution to the deadlock can never be purely technical. The conflict remains essentially political and so must the solution.

By Professor Michael Keating, senior fellow at The UK in a Changing Europe. This piece originally featured on the Centre on Constitutional Change.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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