It is an outcome filled with deep dangers for this island, but I wonder if it is time to face the unpalatable reality that a new, hard(ish) Irish border is the most likely outcome of the current labyrinthine talks between the EU and the UK over Brexit.

On 20 April the Daily Telegraph’s lead story was that the British government’s plans for avoiding a hard border had been subjected to a “systematic and forensic annihilation” by EU officials. It quoted senior EU diplomatic sources as saying that “none of the UK’s customs options will work – none of them.” The always well-informed RTE Brussels correspondent, Tony Connelly, doubted whether the British had even got as far as tabling any new proposals. He suggested what had been rejected were reheated elements of the old UK package of proposals from last August, with its offer to collect EU import tariffs on Brussels’ behalf and its untested high-tech and ‘trusted trader’ customs solutions, which was dismissed then by the EU side as “magical thinking”.  The EU’s hard line stems from its anxiety that its ultra-strict trade rules will be enforced and will be seen to be enforced by the post-Brexit UK.

If the British haven’t come up with anything new in the past eight months to deal with the Irish border conundrum, one wonders how likely they are to do so in the two months before the next EU Council in June – a key target according to Tánaiste and Minister for Foreign Affairs Simon Coveney – or even in the six months before the effective final deadline for agreeing the overall Brexit treaty in October.

The Irish government has put a huge amount of steely determination into securing the so-called ‘backstop’ option. This is that, if all else fails, there will be alignment on the island of Ireland between the rules of the EU’s single market and customs union which “now or in the future support North-South cooperation, the all-island economy and the protection of the 1998 [Belfast] Agreement.” This will apply unless alternative proposals (from the British) are agreed. EU (with Irish) and UK officials are currently involved in intensive talks both to decide what those proposals might be and, in their absence, what this ambiguous and perhaps unworkable alignment might mean in practice.

Katy Hayward, the Queen’s University Belfast sociologist who (along with QUB political scientist David Phinnemore) has become the acknowledged expert on the Irish border and Brexit, thinks the Northern Ireland/Ireland issue is a litmus test for the UK’s whole approach to its future relationship with the EU. What it puts forward in terms of avoiding a hard Irish border demonstrates its grasp of the implications of leaving the single market and customs union.¹

She says British ministers’ focus on preventing a ‘hard’ Irish border by having checks and controls that are not physically at the border misses the main point. This is that if the UK is heading for a ‘hard Brexit’ – i.e. withdrawing from the arrangements that serve to make EU member state borders frictionless – this by definition means a hard Irish border.

She believes one likely outcome is that ‘specific solutions’ (to use a phrase from the 8 December ‘Joint Report’ EU-UK agreement) will be found for Northern Ireland. This is the very thing the DUP, with its paranoia about the slightest differentiation between Britain and the North, will fight tooth and nail – using its temporary hold on the balance of power in the House of Commons to do so. However these ‘specific solutions’ could bring about just that kind of different treatment for Northern Ireland: i.e. a ‘Canada-plus’ deal for the UK as a whole (leaving the customs union and the single market in the hope of getting some relatively generous future trade agreement) alongside a ‘European Economic Area-minus’ for the North  (Northern Ireland abiding by EU rules so that, for example, its goods have tariff-free access to the EU’s common market). A crucial requirement here would be the return of a fully functioning NI Executive to help manage the mechanisms to ensure that the North doesn’t lose out as the EU and UK go their separate ways in the period ahead. It all sounds fiendishly complicated and problematic.

Of course neither government really wants this ultra-complex and highly charged solution. On the British side the ‘backstop’ proposal was roundly condemned by Theresa May at the end of February when she saw the legal text of the draft Withdrawal Agreement promising “a common regulatory space” between both parts of Ireland on the grounds that it would create “a customs and regulatory border down the Irish Sea”. In the end she reluctantly went along with it before the March EU Council because the offending section in the colour-coded Protocol on Ireland/Northern Ireland was in white, meaning it had not yet been agreed.

For its part, the Irish government simply wants the whole of the UK to stay in the customs union, which would avoid any difficult, controversial special treatment for the North. This has led to right-wing Brexiteers claiming that there is an infernal alliance of British ‘remainers’, the Irish government and the EU which is using Northern Ireland and the Irish border as a weapon to force the UK to stay in the customs union.

Hayward notes that the ‘backstop’ option shows that the EU is holding true to its commitment to be “flexible and imaginative” on the issue of Ireland and Northern Ireland.  For in this option, the EU offers de facto European Economic Area membership to the sub-national region that is Northern Ireland, but to cover just one of the Union’s four freedoms (i.e. movement of goods). Avoiding a resulting economic border down the Irish Sea is the UK’s problem, its negotiators say.

The colour-coded version of the draft Protocol indicates that there is little which is currently agreed between the UK and the EU on Ireland/Northern Ireland. What has been agreed is the continuation of the Common Travel Area; the need to “maintain the necessary conditions for continued North-South cooperation” across several areas (such as education, tourism, justice and security); Britain’s freedom to build on the Belfast Agreement (we’ll be waiting a long time for that!) and the creation of a specialised committee, probably involving both Irish and Northern Irish officials, for the implementation of this protocol.

The objectives of protecting Irish citizens’ rights in Northern Ireland, the rules on state aid for the North, and a Single Electricity Market are agreed, but the manner of their achievement is not. In the coming weeks, the UK and EU officials have to find agreement on a wide and complex range of issues for the two Irish jurisdictions, including free movement of goods across the border, agriculture and fisheries, the environment, and the application and enforcement of EU regulations in Northern Ireland.

Hayward believes that “a strong starting point would be if the UK comes out and clearly states that ‘specific solutions’ are necessary to meet the commitments it has made to Northern Ireland, both in the [8 December] Joint Report and in the Belfast Agreement.” Will Theresa May have the bottle to face down the DUP and Tory right to make such a statement? I doubt it.

However I agree with Hayward that, as things stand, there is a real risk that – far from enjoying the best of both worlds of continued UK sovereignty and tariff-free access to EU markets – Northern Ireland could fall between the rock of the EU’s determination not to bend its rules and the hard place of the UK’s refusal to allow it to have special treatment. And that will almost certainly lead, to the dismay and distress of the great majority of Irish people, north and south, to a hard border (or perhaps a hardish border with a ‘backstop’ protocol that is interpreted by the British in the most  minimalist manner possible) .

In the event of this outcome, I fear for the Good Friday Agreement. For despite its honeyed words, the current British government (like most of the British people) thinks or cares little about this miraculous, peace-bringing 20 year old accord, and the DUP (which never signed up to it in the first place) would be happy enough to see it fade away. In the words of a recent Guardian editorial, Brexiteers’ “pursuit of the ideological chimera of absolute trade sovereignty blinds them to the reality of a fragile peace treaty that demands respectful, judicious handling.” Not for the first time in our history, a major threat to the peace and well-being of Ireland may be about to happen as a result of British ignorance of and indifference to this island.

PS  I was delighted to see my home town of Ballymena, which too often makes headlines as a bastion of obscurantism, showing an enlightened side earlier this month. The DUP Mayor of Mid and East Antrim, Paul Reid, hosted a special event in the town to celebrate Irish Language Week (Seachtain na Gaeilge). He singled out for particular praise the East Belfast language activist Linda Ervine, who he said had explored the links between the Protestant community and “one of the oldest and most historic written languages.” He was following the example of his party colleague Paul Hamill, Mayor of Antrim and Newtownabbey, who spoke Irish when welcoming guests to an Irish language event in a local theatre in March. There is hope for the DUP yet!

¹ For a fuller exposition of Dr Hayward’s arguments, see  http://qpol.qub.ac.uk/author/qpol_hayward/  ‘Avoiding a hard Irish border: Time to move from magical thinking to specific solutions.’