The Brief, powered by Eurogas – Squaring the circle of the Irish border

The Brief is EURACTIV's evening newsletter.

One of the three big issues in the first phase of Brexit talks, next to the financial settlement and citizens’ rights, is the problem of the Irish border – the UK’s only physical contact with the rest of the EU.

No one wants a ‘hard border’ on the island, which is co-habited by EU and eurozone member Ireland and the UK province of Northern Ireland. But strictly speaking, a border will be needed if and when the UK leaves the EU. This is why negotiators speak of “flexible and imaginative solutions”.

One such flexible and imaginative solution could be that the UK leaves the EU’s internal market and customs union but Northern Ireland remains part of the customs union.

The customs union is a principal component of the EU. 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.

The European Parliament’s Brexit point man Guy Verhofstadt, who can afford to be more outspoken that the real EU negotiator Michel Barnier, promoted this idea on a recent visit to Northern Ireland.

But Northern Ireland remains a deeply divided society and his plea was rejected by the Unionists, who traditionally want closer links with Great Britain.

What makes things more difficult is that a small Northern Irish party, the Democratic Unionist Party (DUP), is in coalition with Theresa May’s Tories. In contrast, the Republicans, Sinn Féin, are supportive of Verhofstadt’s proposal.

More importantly, the Republic of Ireland is also supportive. Irish Justice Minister Charlie Flanagan went to London on Wednesday  to lobby for avoiding a hard border by keeping Northern Ireland inside the customs union.

Diplomats say the border issue is deadlocked because Northern Ireland doesn’t have its own government proper. It has a so-called “Northern Ireland Executive” in which no-one, not even the first minister, has competence on the issue.

Under the 1998 devolution arrangement, the government and parliament in London are responsible for ‘reserved’ and ‘excepted matters’ in Northern Ireland.

Reserved matters are a list of policy areas (such as civil aviation, units of measurement, and human genetics), which the Westminster Parliament may eventually devolve to the Northern Ireland Assembly at some time in the future. Excepted matters (such as international relations, taxation and elections) are never expected to be considered for devolution.

So the issue is that there is no one to talk to in Belfast, and that the two main forces there are at loggerheads. The flexible and imaginative solution would be for the UK to devolve more power to Northern Ireland so that its government can move forward. And the experience could then be repeated with Gibraltar.

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