Perhaps Schroedinger’s Border Guards should patrol the Customs Union

Brexit will happen. As Alastair Meeks sensibly pointed out here yesterday, there’s a good, clear case that Article 50 is not revocable. Britain could ask for an extension to the talks but the PM has been clear that she doesn’t intend to do so and in any case, a delay is not a reversal of course. In practice, the transitional arrangement might look very much like continued membership but even that will have an expiry date, presumably one that’ll be written into the Exit Agreement.

All of which assumes we get an Exit Agreement. That’s far from certain as the two sides continue to talk at cross purposes, becoming irritated with each other in the process as neither understands why the other won’t be reasonable. It’s a microcosm of why the difference in philosophical understanding of what the EU is propelled Britain to leave in the first place.

Diplomacy should, however, prevail in the end on two of the three outstanding points. The financial settlement may prove a lot easier than many expect. Now that Britain is looking for membership-in-all-but-name during the transitional period, the likelihood is that the UK will pay very close to what it’s already doing in order to get that – which also has the happy benefit of seeing the EU through to the end of (and slightly beyond) the current Budget Framework. The debate about bar bills won’t apply. There will still be some legacy costs to sort out – pensions, for example – and opt-in costs for individual programmes but they shouldn’t be insurmountable.

Similarly, the question of citizens’ rights should really have been resolved already. Both sides recognise the need to do so and (in theory) accept the principle of reciprocity – though the EU wants the ECJ to guarantee the rights on both sides, which is hardly reciprocal. Sorting out the precise terms shouldn’t be beyond the wit of the two teams.

The tricky one – indeed, potentially the fatal one for the talks – is Ireland. Here, the contradiction in objectives seems on the face of it insurmountable. The British government wants to leave the Customs Union, which implies those entering it must cross a regulated border, but both sides want frictionless trade between North and South of the island.

The simple solution would be to not leave the Customs Union. After all, it’s the Single Market which holds most of the objections for Brexiteers. The Customs Union imposes some restrictions but if the 16 months since the referendum are anything to go by, that slew of new and improved trade deals looks a forlorn hope. However, to say that would be to admit defeat which the government won’t want to do, for reasons that aren’t all bad. To make a major concession there while the EU gave nothing would be to invite continued intransigence from Brussels on the false expectation that Britain will fold on issues that really are red lines.

So if that option’s off the table, how to square the circle? The simple answer is: don’t. Let the circle and the square coexist.

The assumption is that if Britain leaves the Customs Union then there must be a hard border. In fact, that’s not entirely true anyway: there isn’t a solid border between Norway and Sweden, and Norway is outside the CU. But putting technology aside, why need there be a border at all?

At this point, lawyerly types and bureaucratic logicians will talk about the integrity of the CU, about ‘back doors’ and so on, and yes, in terms of a consistent regime across the Union, they have a point. But only a bit of a point. For one thing, if you were going to import Chinese toasters into Germany, would you really sail to Belfast, transport them by road through to, say, Rosslare or Cork, sail (on a ferry) to Cherbourg or Roscoff, then have them driven hundreds of miles more across the continent? The logistical costs would outweigh any customs saving.

Some will also make the point that if Britain unilaterally gives Ireland a favourable deal then other countries could bring a case against it at the WTO, on the grounds that they’re being discriminated against. They could, but it’s not a slam-dunk. For a start, Britain already has a trade deal with Ireland, dating from 1965. Now, I’ll admit that I’ve not had time to go through the text of that treaty, nor have I found evidence either way as to its status after both countries joined the EEC. It could be that it was formally ended in 1973. On the other hand, if it was simply allowed to fall into abeyance because the two countries’ membership of the EEC superseded it, then on Britain’s withdrawal, it could be argued that Britain has the right to renew the terms, particularly where they are favourable to Ireland.

Even if that’s not an option because the treaty was annulled, there still remain the Agreements that form the Northern Ireland Peace Process, which provide for all sorts of frameworks within the British Isles and within Ireland. In particular, within the Introduction to the section containing the agreement between the two governments within the Good Friday Agreement, it states:

Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union; Reaffirming their commitment to the principles of partnership, equality and mutual respect and to the protection of civil, political, social, economic and cultural rights in their respective jurisdictions;

A little imaginative interpretation there and it could be taken to mean that imposing a border would run counter to the commitment to ‘develop still further the unique relationship between their peoples’ and that a hard border would run counter to ‘the protection of economic rights’. With pre-existing treaties in place, there would be no illegal discrimination against third countries.

All of this is, of course, from the British side. Britain could decide to have no patrolled border but that still doesn’t necessarily get Ireland off the hook. It would still be supposed to enforce the Customs Union. However, to do so would be grossly detrimental to some of the poorer parts of the country. The best option would be to simply leave it as an anomaly. The EU is good at coming up with names to describe anomalies. I’m sure it could be granted some special and unique status.

Perhaps it could be called a superpositional border; one which is simultaneously both there and not there. A legal paradox but an acknowledged one. Quantum mechanics contains such a concept; it’s how Schroedinger’s Cat is both alive and dead at the same time. The trick, in that case, is not to inquire as to the health of the cat. With Ireland, the best option is to not ask about the border.

David Herdson