Where are we on Brexit?

[andrewducker]

It's been a while since we had one of these, and I wanted to get my thoughts in order.

The local elections last week _should_ have sent a solid message. But, of course, Corbyn and May are saying that the message it sent was "More Brexit Please". However, they've still not got any chance of getting a deal over the line.

Labour won't accept a Brexit deal with the Conservatives without a customs deal of some kind*. And Theresa May agreeing to that would cause at least 100 of her MPs to vote against it.

Meanwhile, two thirds of Labour MPs are saying they won't vote for any Brexit deal which doesn't have a second referendum attached to it.

Plus, of course, the EU have said that all they will edit at this point is the political declaration, the actual withdrawal agreement is sealed.

And if the government decides "The hell with this" and call a general election we end up in a situation like this:
Conservatives: 279
Labour: 268
Liberal Democrats: 29
SNP: 51 (I think, looking at the other numbers)

Which means you'd need Lab+Lib+SNP for a solid majority**. Coalition of Chaos indeed!

*As far as anyone can tell the Labour leadership are still thinking that they can have a customs deal that gives them lots of access to things, but without having to give anything up. As they aren't about to be able to directly negotiate, we're not likely to see their unicorns run into a brick wall.

** Although Labour could aim for a minority government and just dare others to vote against them. Or pick just one of the other two parties to have a formal agreement with.

Comments

[skington]

As I understand it, the customs union doesn't get rid of all of the Irish border problems, though. To make the Good Friday / Belfast Agreement properly safe, you need the Single Market as well. Nobody's been talking about this much because even the / a Customs Union is a long stretch at the moment.

[mountainkiss]

Yes, actually, now that you say it I do see that. You can’t in principle have free movement and then an open border on NI and a hard border on GB. Why isn’t this talked about more? (I suspect it’s more easily bodged than the CU because of standards, but could be quite wrong; this is the first time I’ve thought about this.)

[danieldwilliam]

Do you need free movement of people between Eire and NI or just the right of Republic and NI citizens to move without restrictions between the two areas?

[mountainkiss]

You need a border if you’re to have control over either?

[andrewducker]

Yup. Otherwise how do you check who is allowed and who isn't?

[mountainkiss]

So I wasn’t sure whether Dan’s comment was a meaningful difference in this context? But might well be overlooking something.

[andrewducker]

I can't see it myself.

[andrewducker]

Does that "without restrictions" include "without someone stopping you at a border to check if you're an Irish citizen"?

Because if not you've just reignited the troubles.

[danieldwilliam]

I think the distinction is something like this.

Option 1) You have something like a Schengen area where there are no border controls.

Option 2) You have a free movement area where people are allowed to move from state A to State B in order to 1) work, 2) look for work 3) purchase goods 4) offer goods for sale 5) consume services 6) provide services and they can do so for a day or a year or a forever. You more or less have the same rights as anyone else up to and including voting in local elections. There can be border checks, mostly these are aimed at filtering out citizens of state C.

Option 3) You have unrestricted rights of residence - a person can move from state A to state B and set up there but they might not have the same rights as a citizen of state B, for example voting rights or the access to health care or tertiary education on the same terms as citizens of state B.

I think it is possible to run a system with no border checks and still have a regime in place closer to Option C. We don't check your passport at the border between state A and state B but if you turn up at hospital you'd better have your State B ID card or a credit card. If you apply for a job we'll want to see your passport and that's how we weed out any state C interlopers. How well this works in practice is debatable. If you prevent 99% of illegal job applicants from state C by doing a passport check at the time of hiring and 99.5% with a full border check - do you care about the 0.5% enough to have an actively checked border.

So that's the hypothetical I'm thinking of.

I don't know what the Good Friday Agreement stipulates. Does it require the free movement of Irish and British citizens on the island of Ireland or does it just grant a right to take up residency in the Republic or in Northern Ireland if you are already a resident in the jurisdiction? It's complicated by the fact that many people in the Republic and in Northern Ireland have (or are entitled to ) dual nationality.

But fundamentally what I'm wondering about is whether you could, in terms of the Good Friday Agreement, have border checks between the Republic of Ireland and Northern Ireland which are just there to check that you are either Irish or British (no need for a visa) or a citizen of country C (needs a visa)?

(The question of whether such a situation would, in practice, be acceptable to Irish Republican para-militaries is a separate question to the legal one.)

[andrewducker]

First two paragraphs here tell you this is completely out of the question :
https://fullfact.org/europe/avoiding-hard-border-ireland/

[danieldwilliam]

In practice or in accordance with treaty obligations?

Because the Common Travel Area bumpf at that link seems to suggest that passport control is permissible.

[andrewducker]

"Both the UK and the EU agreed in the first year of discussions that they would commit to avoiding a hard border"

"A ‘hard border’ is the term used to describe checks on people and goods―and the staff, buildings and equipment needed to do that―on the border between Northern Ireland and Ireland."

I mean, that seems really simple and straightforward to me.

[danieldwilliam]

Agreed to make a treaty is not the same thing as signing a treaty. Signing a treaty is not the same thing as enacting legislation.

This is particularly true when a) the UK Parliament has voted against the first stage of signing that treaty and b) it is a matter of some controversy who has the power to make treaties, the British government or Parliament.

So, I'm still no further forward. The question isn't what the UK and the EU might or might not have agreed to agree to in the future. The question is what do the existing treaties, and their resulting domestic legislation, between the Republic and the UK say about the rights of movement, residency, citizenship and so on.

[andrewducker]

I disagree entirely.

The question is how do you stop The Troubles kicking off again.

[danieldwilliam]

I expect the Troubles re-starting can be prevented the way they were stopped in the first place, with a massive intelligence penetration of the Nothern Irish para-military organisations followed up by the SAS having a quiet word with the senior leadership of those organisations, in person.

The Good Friday Agreement is what happens when the British and Irish no longer want to pay for the security operation to keep para-military activity below a very low level (but not drug trafficking or fuel smuggling).

It might be the case that stopping there being a single market (including the free movement of people) that includes both the Republic of Ireland and Nothern Ireland so irritates the people of Northern Ireland that sufficient of them are motivated to re-start a campaign of violence but perhaps not.

Breaking the treaty obligations of the Good Friday Agreement in an act of bad faith might motivate a resumption of the violent campaign.

I've yet to see it clearly established that the actual bi-lateral treaty obligations between the UK and the Republic of Ireland require, as a point of law, both areas to be in the Single Market and therefore subject to the Free Movement of People under the Citizens’ Rights Directive 2004/38/EC.

I completely agree that both the Republic and NI being in the Single Market makes it very easy to operate the Common Travel Area and the other bi-lateral obligations under the GFA. I completely agree that people in NI and those in Eire who are physically or commercially near the Eire / NI border will be mightily inconvenienced if Eire and NI aren't in the Single Market and will be aggrieved. I completely agree that people generally assume that the GFA guarantees the Free Movement of People including Schengen-like non-controls between Eire and NI rather than that people in the island of Ireland can move around without asking for permission first and can take out citizenship of either or both the Republic of Ireland and the UK but I haven't see that writen down anywhere.

Maybe the perception of the border is enough to motivate a return to violence. I'd be loath to find out whether it is or not. That's a bloodly stupid idea. The whole thing is a bloody stupid idea. Brexit and the Troubles both. But I'm not sure that claiming that the UK broke its GFA treaty obligations is a persuasive battle-cry if we actually didn't.

And so, what I'm interested in is what happens if there is a No Deal Brexit, what actual obligations do the UK and the Republic have to each other and to their citizens? What survives us not being in the same Single Market with each other? Do we have a way of managing those rights which doesn't massively mess with the lives of people along the border?

And it seems to me that the question of non-compliant goods is much harder to manage without a border than the question of people who will need to provide some documentation before they can get a job, buy a house, go to the doctor and so on. Certainly from our end, harder to manage at the EU end but that is one reason why Ireland is not in the Schengen area.

[andrewducker]

Yup!

As laid out here
https://www.theguardian.com/commentisfree/2019/apr/12/brexit-customs-union-labour-irish-border