The Brainstorm long-read: a deep dive into the Brexit back-story to find out how we arrived at this point and what it could mean for the movement of people and goods between Ireland, the UK and Europe
It would be an understatement to say that there is a lot of confusion about Brexit. Misleading statements, disputed interpretations, conflicting claims and intermittent warfare are rife - and that’s just the British Conservative Party, although in truth the British Labour Party is equally disunited. Across the political landscape in that country, the subject of Europe is more divisive than at any time since the UK, Denmark and Ireland joined the then six-country EEC in 1973.
The UK’s relationship with its EU neighbours has never been an easy one. Long before Brexit and before it opted not to join the euro, Margaret Thatcher’s "we want our money back" was one of the rallying cries of the early 1980s, as the UK fought a four year battle for an adjustment in its budget contribution. While they won, the tone was set for a relationship with the rest of the EU marked by suspicion on both sides. This was a long time before the victory of the Leave side in last year’s referendum.
Why Leave won the referendum
The Leave side’s victory was a surprise to almost everyone, not least those who had promoted the cause. In retrospect, it is possible to see a variety of factors at work. These include the decline of Britain, a nostalgia for past times, dissatisfaction with petty regulation and the perception of a remote and insufficiently accountable Brussels bureaucracy. It was also a rejection of the "ever closer union" being promoted by some federally minded continental politicians.
But four further related factors probably stood out: the anger of the "left behind" generation in a post-crisis Britain of sluggish recovery and high unemployment; the scapegoating of immigrants, whose numbers increased considerably in the years after the expansion of the EU in 2004’ the rise in tensions caused by recent refugee crises and debates concerning Islam in the west following recent attacks.
It may also be possible to discern a broader disillusionment, not confined to the UK, with the underlying political landscape. A post-second World War stability based on growth in living standards, social safety nets and a relatively centrist political consensus has given way to the emergence of a less egalitarian, neoliberal economic model. It has also produced a more sharply polarised political scene, characterised by anti-austerity parties and the re-emergence of far-right xenophobic movements.
Drawing up the divorce papers
For its part, the EU sees no reason to confer any special favours on the UK as it leaves. For one thing, the UK has been something of a semi-detached member since the outset. For another, there is no desire to encourage other parts of the union, whether Poland or Catalonia, in any belief that departure might be penalty-free.
Nor should one forget that the EU is still backed by a strong cross-country consensus which appreciates the values it stands for as well as the benefits it confers. This is even if the bitter experience of the austerity years suggests that the EU’s agenda in recent years needs to return to its collegial origins rather than reflecting Germany’s economic perspectives to an excessive extent.
Brexit will give rise to a situation where the freedom of movement enshrined in EU policy and law will no longer apply in the UK
The Brexit options
At the time of writing, a ‘soft’ Brexit does not look likely. It is impossible to say whether the UK is heading towards a ‘hard’ Brexit or whether it is more likely to crash out of the EU in chaotic fashion, with no agreement on the terms and conditions of its future relationship with the remaining 27 member states. The barely ruling Conservative Party is more divided than ever.
Hardliners who wish for an early and decisive break believe that the UK should extricate itself at the lowest possible cost and forge a new future in a global context. Then, it will be free to pursue its own trading interests, define its own immigration policy and free itself from the purview of the European Court of Justice. If that means a hard Brexit or even a departure without full agreement, they say, so be it.
Moderate Brexiteers are prepared to consider a longer transition period and to negotiate arrangements which are as close as possible to the benefits of EU membership which the UK has enjoyed up to now.
While the debate is currently almost entirely dominated by those who wish to leave, nearly half the population – 48 percent - voted to remain. For the most part, their voices have been drowned out by an extraordinarily partisan media and by the inability of the Labour Party to adopt any clear position. They may yet re-emerge, particularly in a scenario where they might, with disillusioned moderate Leavers, use their parliamentary power to block a scenario which would see the UK crashing out without agreement.
Travel controls were operated on an island-to-island basis, meaning travellers from and through Northern Ireland were subject to controls before entering the rest of the UK
What does this mean for Ireland?
Barring the outbreak of a major war (not to be excluded with an unstable and narcissistic US President, North Korea, Iran and other unfolding crises), Brexit is the greatest single threat to Irish economic and political well-being on the international horizon today. The extent of the damage could vary greatly depending on which model of Brexit the UK ultimately opts for.
In many ways, we remain inextricably linked with Britain. The southern part of this island became independent in 1922 but, in effect, continued to be part of a unified labour and trading market with its larger neighbour. The proportion of emigrants going to Britain actually increased after independence, as other destinations such as the USA declined in importance. The vast bulk of Ireland’s trade was also with the UK.
Ireland and Europe
Since Ireland joined the EEC, now EU, there has been a significant decline in Ireland’s trading dependence on Britain. A new, more confident nation has emerged which was no longer as inclined to define "Irishness" simply as "not-Britishness".
Europe greatly expanded Irish horizons, generally for the better. The country became more open-minded and outward-looking, punched above its weight in international affairs and served as an important platform for globalised foreign direct investment and trade in high-tech goods and services, while expanding its own indigenous sectors notably in agriculture.
Despite emigration peaks in the late 1980s and during the recent recession, there were also periods of significant economic growth and resultant immigration and return migration, notably in the late 1990s and early 2000s.
Nevertheless the UK market remains of vital importance, notably for agriculture and for the indigenous SME sector. Other relevant factors include the cross-border supply chain in some parts of Irish agribusiness and the fact that a substantial part of Ireland’s trade with the wider world transits through the UK. Moreover, Ireland and Britain remain politically close. Above all, the peace process is still central to our relationship.
The either/or conundrum
With Brexit, Ireland seems faced with making a choice between its two most important international geopolitical alliances. While it has unequivocally opted to stay in the EU, it has an obvious interest in minimising the disruptive effects of British departure. Matters are not helped by the relative indifference and lack of consideration shown by all sides in the UK towards the island of Ireland (including that part of it where the majority is Unionist), and towards the potentially calamitous consequences of a disorderly exit. By contrast, the EU has made Irish aspects of Brexit one of the three priority areas on which progress must be achieved before trade talks can be embarked upon.
How might one quantify the risks? What exactly is meant by such frequently used phrases as the Common Travel Area, the Single Market and the Customs Union? How might we understand the impact that Brexit could have on the movement of people and goods between Ireland, the UK and the rest of the EU, but also and notably within the island of Ireland itself? Barring some extraordinary turnaround, it seems almost certain that a ‘frictionless Border’ will not be possible and that, political promises notwithstanding, some kind of actively monitored frontier with checks on both people and goods will ensue.
We cannot be said to have an independent immigration policy, due to the ease of movement between the two jurisdictions
The history of freedom of movement between Britain and Ireland
The 1921 Anglo Irish Treaty was silent on matters of migration and settlement. By default, it was assumed that the new Free State would, for all practical purposes, continue to function in the same manner as previously as regards immigration and settlement. This meant that Irish and British people continued to have reciprocal immigration and settlement rights in one another’s jurisdictions.
The effects of this regime were far-reaching. In particular, citizens of Ireland (strictly speaking, the Irish Free State, later Republic of Ireland) were, for most practical purposes, not treated as foreign in the UK at all. Similar, although not identical, privileges were extended to UK citizens in Ireland.
Life during wartime
The regime of free movement between the two jurisdictions changed during the second World War. Travel from Ireland to Britain, usually for employment purposes, was subject to permission from both sides. Travel from the South to Northern Ireland required the production of an identity document and a residence permit was necessary if a longer stay was intended. Interestingly in light of present debates, travel controls were operated on an island-to-island basis, meaning travellers from and through Northern Ireland were subject to controls before entering the rest of the UK.
These controls were only gradually lifted after the war. The British requirement for a travel permit for those coming from any part of the island of Ireland did not lapse until the end of 1947. Immigration controls between the two islands remained in place.
Introducing the Common Travel Area
In itself, this is an indication of how impracticable it was considered to seek a hard land border within the island. Northern Unionists resented being placed on a different footing from people in other parts of the UK. The UK government’s view was that such controls would only be abolished if and when a similar immigration policy was established between the two governments. Such a policy was agreed between the Department of Justice and the Home Office in 1952 and is the basis for what is now known as the Common Travel Area (a term first used in 1953) or CTA.
These arrangements were informal rather than grounded in law (and certainly not in any international treaty), even though they gradually took on the status of ‘hard’ policy in the decades which followed. The term "Common Travel Area" was cited in the EU Treaty of Amsterdam (1997).
The CTA is an unusual arrangement. Just how unusual may be judged from Section 2 of the Ireland Act (UK) 1949, on which it is based. This states that "the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom". Theresa May has stated that it will remain in place after Brexit, but how much reassurance does that offer?
The EU and freedom of movement
No further major change occurred between the 1952 CTA and the accession by the UK and Ireland to the European Economic Community (EEC) on January 1, 1973. Under the terms of membership, freedom of movement was one of the "four freedoms" (with goods, capital and services) of the EEC. This initially only applied to the movement of workers, rather than all citizens, but it would be fair to say that the EEC regime was seen as largely subsuming and replacing the CTA in the public mind.
The 1992 Treaty of Maastricht formalised a new concept of EU citizenship and the European Charter of Fundamental Rights, agreed at Nice in 2000 and which came into force with the Treaty of Lisbon in 2009, contained the following:
"With regard to the free movement of persons, the Charter affirms the right of every European citizen to move and reside freely within the territory of the Member States"
This extension of freedom of movement rights, backed by the jurisprudence of the European Court of Justice, has proved to be a ground-breaking development. Moreover, it has led to the clarification of certain new rights, such as the right of a non-EU spouse to live with his/her family in any EU member state.
The issues have now been on the table for some time, but the political will to address them seems to be lacking
Will the CTA outlast Brexit?
There have been many upsides to the CTA. For Ireland, it has guaranteed ready access for generations of Irish emigrants to a nearby labour market with a shared language and a strong demand for Irish labour. From a UK point of view, labour has been readily available and affordable.
It has also constituted a key element in the management of a complex set of close relations and tensions between the two jurisdictions. So much so that the CTA withstood even the most difficult and fractious period of the Troubles in Northern Ireland without substantial modification. The implementation of the Good Friday Agreement of 1998 further facilitated the dismantling of virtually all day-to-day barriers between the two parts of Ireland and between the two islands.
But Brexit will give rise to a situation where the freedom of movement enshrined in EU policy and law will no longer apply in the UK. A question will arise as to the viability and adequacy of the CTA in the regulation of travel between the UK and Ireland when one remains in the EU and the other leaves.
So far, Ireland has managed to have the best of both worlds. On the one hand, independence has been a reality since 1922. Ireland has been able to successfully forge an independent place for itself in the world in trade, foreign policy, development aid, culture and human rights. On the other, we have had the freedom to continue to benefit from the contiguity of our former rulers and their willingness to allow unrestricted immigration and residence by Irish people.
It will be obvious that, at the very least, the freedom of movement embodied in the CTA only applies to movement and settlement by British and Irish citizens. This might in itself pose problems, for instance, in the case of a non-citizen spouse wishing to move with an Irish citizen to the UK. But what might be the implications for others?
There was a price to pay as well for the CTA, which involved a largely invisible but enormous diminution of Irish sovereignty in immigration matters. We cannot be said to have an independent immigration policy, due to the ease of movement between the two jurisdictions and the close co-operation which has always existed between the competent authorities on both sides.
A new era for migration
It now seems likely that post-Brexit Britain will move to restrict and regulate the movement of all third party nationals into the UK with the exception of nationals of Ireland itself. As regards the movement of non-EU immigrants, we may expect to see a strengthened regime of co-operation between the Irish and British authorities, designed to make the two jurisdictions a common jurisdiction in all but name.
But what of nationals from other EU member states. They have a perfect right of movement to Ireland but no right of onward travel to the UK. It would appear that the UK is now suggesting that other means of control, such as the use of national insurance cards in the workplace, can be used to prevent illegal immigration from Ireland to the UK.
However, the creation of such a back door seems logically and practically incompatible with the regulation of movements into Britain at ports, airports or by train. In all other cases, the UK has been insistent on the need for tight controls and reinforced borders. For instance this is why the UK would not join the Schengen zone in the 1990s.
Why should it be different for Ireland/UK movements and what might happen, say, to the putative 10,000 Spanish or Romanian migrants who might legally come to Ireland and proceed to attempt to cross the Border, if there are no border controls in place? Indeed, would the Irish authorities themselves be comfortable with potential flows in the other direction in an unstable post-Brexit situation? Electronic surveillance will not address these issues.
Perhaps it is best seen as a particularly challenging part of the ongoing struggle by the UK to recognise its future as a relatively modest country off the north-west coast of Europe
The Single Market
The European Single Market seeks to guarantee the free movement of goods, capital and services within the EU. Membership of this market is based on acceptance of all of its conditions and on acceptance of the free movement of workers. The market is intended to promote increased competition, increased specialisation and larger economies of scale in order to drive economic integration so the once separate economies of the member states become integrated within a single EU-wide economy.
The creation of the internal market as a seamless, single market is an ongoing process, with the integration of the service industry not yet complete. It also has an increasing international element, with the market represented as one market in trade negotiations involving global partners.
The preservation of a common market for goods and services depends on the agreement of common standards in such areas as health and safety in order to prevent any distortion of competition. It also depends on the elimination of a wide range of non-tariff barriers in order to facilitate the totally free movement of goods and services. Any measures designed artificially to favour home-produced goods are forbidden, but manufacturers and service providers can sell into a vastly bigger market than their own national one without penalties and with minimal extra costs.
The UK has already indicated it does not intend to stay in the Single Market after Brexit, mainly because it would also have to continue to accept the free movement of persons from other EU Member States.
The Customs Union
The Customs Union is a principal component of the European Economic Community, established in 1958, and now succeeded by the European Union. No customs duties are levied on goods travelling within the customs union and—unlike a free trade area—members of the customs union impose a common external tariff on all goods entering the union.
A pre-condition of the customs union is that the European Commission negotiates for and on behalf of the union as a whole in international trade deals such as the World Trade Organisation, rather than each member state negotiating individually. Again, in order to recover its own perceived national freedom of action, the UK has indicated it will not stay in the Customs Union.
What next for cross-border movements of goods and people?
British and Irish authorities alike have maintained that a hard border is undesirable. Indeed, pro-Brexit elements in the UK have sought to present the restoration of such a border as an inherently onerous imposition by Brussels of measures which, left to themselves, neither Ireland nor the UK would wish to renew.
Yet it must be obvious that the notion of a key part of the EU’s external border being left unmonitored by customs regimes would be entirely unfeasible. For the EU, the integrity of the Single Market as well as its benefits would be fatally undermined if goods were to be admitted without inspection. Moreover, in the absence of membership of the Customs Union both sides would have to fall back on WTO (World Trade Organisation) default customs tariffs for goods moving in either direction, leading to huge complications in export regimes.
Finally, EU trading and consumer protection interests would not accept the dangers posed by the smuggling of goods into the Union which were produced under circumstances which did not meet comparable health, safety and production standards and where market dumping was a constant risk.
It will be evident that similar difficulties would arise with the movement of people, notably as the control of immigration is has been a key driver for Brexit.
The practical means necessary to regulate and monitor movements of people and goods have huge implications in terms of time, staffing and the provision of appropriate infrastructural support. While there may be limited solutions on offer to regulate the issues already mentioned, it does not seem feasible, either for the UK or EU, to leave a substantial gap in frontier controls.
The intriguing question is why the UK has handled the negotiations with such extraordinary incompetence
So what happens now?
The issues addressed here have now been on the table for some time, but the political will to address them seems to be lacking. Studies elsewhere, including around the Norwegian/Swedish and US/Canadian arrangements, suggest that controls will be unavoidable unless the UK changes its current stance on leaving the Single Market and Customs Union.
The consequences of Brexit for the free movement of goods and people will be onerous. It also raises the issue of how much it matters to this country to have its own independent policies in matters of non-EU immigration and notably in refugee and asylum policy. The record is not encouraging.
There remains the intriguing question of why the UK has handled the negotiations with such extraordinary incompetence. Clearly, political problems have been the cause, not civil service or diplomatic failings.
Perhaps it is best seen as a particularly challenging part of the ongoing struggle by the UK to recognise its future as a relatively modest country off the north-west coast of Europe. This future will require it to set aside past visions of grandeur on a global scale, the conceit of a special relationship with the USA and the belief that ongoing truculence towards its neighbours will pay more dividends than persuasive open diplomacy and shared sovereignty.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ