At last the House of Commons has decided what it wants. It wants to leave the EU with a withdrawal agreement (the ‘deal’) but it does not want to be bound in perpetuity by a Treaty encompassing arrangements for the border between Northern Ireland and the Republic of Ireland. That such arrangements ever became part of the withdrawal agreement is curious – a result of political pressure. Any arrangements regarding this border properly belonged in the second phase of negotiations on the future relationship between the UK and the EU. Only once the UK has left the EU, according to the EU’s rules of negotiation, could discussion even begin on future arrangements. The ‘backstop’ was inserted as if the arrangements for the border were similar to the rights granted to individuals or the debts incurred as a result of membership of the EU. It is normal that such rights and obligations are respected when a party to a Treaty decides to depart. But the international agreement on the Irish border is not even remotely like either individual rights or debts incurred. Both of these will eventually be extinguished. People die and debts are paid. They are legitimately part of the withdrawal agreement. An international agreement between the UK and the Republic of Ireland is of an altogether different order.
The issue of the Irish border has been confected for political reasons. At present with both Eire and the UK as members of the EU there is no physical border and no checks at that border. But that is not to say there are no differences in the laws that govern economic life in these two jurisdictions. There are differences in the VAT and Corporation Tax systems. Regimes for checking animal and plant health vary – a horrible report of diseased cattle being illegally slaughtered in Poland reveals that even if there are common EU standards they may be ignored. Not all products are subject to common rules. Mr Varakar himself pointed out recently that fireworks are legally sold in Northern Ireland but not in Eire. Are border checks required to enforce the law in Eire? Not at all. Checks, if any, are made within the territory of Eire. And that goes for everything else. The EU may have common rules but these are all applied and enforced within each individual member state. Oh, but some Irish politicians are saying ‘there will be smuggling’. That is what was said in the mid 1980s when we were told that even 1 pc difference in VAT rates would lead to wholesale smuggling. The EU Commission concluded a few years ago that differences in VAT rates simply did not matter.
The EU seems unwilling to adjust the terms of the withdrawal agreement. Yet, in order to ensure that Ireland voted for the Lisbon Treaty it was willing to provide it with substantial opt outs. It is simply not the case that they cannot adjust a Treaty to ensure ratification. It has been done frequently by adding ‘protocols’. The EU’s negotiators need to refresh their knowledge of their own rules and procedures and their memories of of how they got Treaties ratified in the past.