Deluded fudge of May leading her to disaster
British PM displays chutzpah in her effrontery over Northern Ireland, writes Gavin Barrett
There is something wonderfully expressive about the Yiddish word 'chutzpah', meaning "gall, brazen nerve and effrontery". It is a word that comes to my mind every time Theresa May says she will accept no physical infrastructure on the Northern Ireland border.
She did this last Monday at the Tory conference. The week before, she told Leo Varadkar the same thing. Before that she proclaimed it in Florence, echoing her government's Northern Ireland and Ireland position paper.
The problem is that it makes no sense. Taking the UK outside a customs frontier and then about-turning and requesting the remaining states not to police that same frontier is simply unworkable.
Let's be clear. May wants the UK to exit the EU customs union (probably in 2021). This will inevitably require border checks on the EU (or Irish) side to protect the customs union. Yet May protests vigorously at the idea of such controls.
A best-case scenario is that May is deluding herself. A worst case is that her words are a deliberate blame-shifting exercise, designed to obfuscate reality, which is that any need for a hard border is being created by the UK itself.
Public lack of understanding regarding border issues makes such tactics easier. So it is worth thinking this through. There have historically been three sets of controls on the Northern Ireland borders at various times. All three are now gone, for an accumulation of reasons: partly thanks to the Common Travel Area with the UK, partly thanks to the Good Friday Agreement, and partly thanks to the EU.
The first of the three sets of controls happily absent from the Border are passport controls. Their absence stems from the Common Travel Area (CTA) arrangements which have been around since the foundation of the Irish State in 1922 (interrupted only from 1939 to 1952, when World War II led to immigration controls being introduced between the islands of Ireland and Great Britain).
The CTA is governed by Irish and UK law, and shielded by a special EU Protocol since 1999. In reality, the CTA has never been in any particular danger from Brexit. Neither the UK, Ireland nor the EU wants to interfere with the free movement of Irish and UK citizens without passport controls.
The second set of controls absent from the Border are security checkpoints. These came about because of the violence of the Troubles. They persisted until the late 1990s. The 1998 Good Friday Agreement oversaw their elimination, with the UK Government committing to dismantle security installations, which it duly did. Again, nobody - not the UK, Ireland nor the EU - wants to see these return.
The third set of controls absent from the Border are customs checks on goods (not people). These are all-important in the Brexit debate. Why? Because these are the ones that will return if Theresa May persists with her intention to implement Brexit via a UK exit from the customs union (They may possibly bring security checks with them if violence flares).
Customs checks on the Border existed for seven decades from 1923. They were abolished only in 1993, not because of any negotiations between Britain and Ireland but because the EU became a full customs union.
Customs union meant two things. First, EU states abolished tariffs (taxes) on goods crossing their mutual borders. Secondly, they imposed a (policed) common tariff wall right around the EU on goods entering from outside. They had to do this. A customs union's outer frontier must be policed. Otherwise the customs union won't work. If there is a gap in the external tariff wall, countries outside the customs union will pour their goods through it (hormone-injected beef, chlorinated chickens, dumped steel, whatever) tariff-free, avoiding technical standards while they are at it.
By leaving the customs union, the UK is putting itself outside this external frontier.
Ireland, economically, must stay within it, however. We trade too much with the EU not to. But staying inside the customs union means Ireland will have to police its frontiers, itself instituting customs controls on the Northern Ireland border.
Unless wholly ignorant of how customs unions work, Theresa May must know this.
It is obvious the UK leaving the customs union will hit UK-Ireland trade. It is obvious it will force the introduction of customs checks. It is obvious that May could avoid such difficulties by having the UK stay in the customs union. But she won't.
She prioritises instead a beautiful mirage: trade deals around the world which will miraculously cost-less-yet-be-worth-more-than the customs union.
She could also agree to a special UK-EU customs union (similar to the present customs union, but with a new name). But she won't (for similar pie-in-the-sky reasons). Or the UK could move the customs border elsewhere - such as between the island of Ireland and Great Britain. But it won't. (The DUP, on whom May's government depends, will not buy it, and, in fairness, given the preponderance of Northern Irish trade with Britain, this would make little sense.)
May will plamas Ireland and Leo Varadkar until the cows come home, telling tales of frictionless frontiers and issuing ambiguous proclamations about no returns to past borders. She will speak of the unacceptability of customs infrastructure on the very frontier she will bring the UK outside - leaving the dirty work instead to the EU and Ireland.
The truth is that if May's Government wanted the Border to remain open, it could achieve this. It won't, simply because it has other priorities.
It sets more store on fairytale international trade opportunities than on any problems which a harder Northern Ireland frontier will cause us. May's rejections of border infrastructure should reassure no one. They are either clueless, or (more likely) full of chutzpah on an epic scale. Either way, their value is clear: very little indeed.
Gavin Barrett is a Professor specialising in EU law in the Sutherland School of Law, UCD