The Union of 1707 and the art of the deal

For Scotland, Britain was built upon a bargain. Renewing that bargain needs England to engage

Scottish exemplification of the Treaty of Union. Public domain: sourced from Wikimedia Commons

One way or another, devolution as an idea and a reality has a long history in the United Kingdom. The issue of Irish Home Rule pushed the UK’s constitutional norms to its limit (and far beyond in Ireland). Devolution had an unhappy 50-year history in Northern Ireland until 1972. Calls for a Scottish legislature surfaced many times before one was finally created.

Nonetheless, Scottish (and Welsh) devolution in 1999 was a radical act with radical implications. Some who wish to keep the UK together regret it, at least within Great Britain. The devo-sceptics often paint it as an ahistorical rupture. But the historical backdrop to devolution is far from the most important sense in which it reflects a unionist tradition. And their objections miss both the need for a democratic expression of Scottish distinctiveness and two of the hardest challenges the Union faces now.

A new variation on an old theme

Britain was built upon a bargain. Scottish politicians secured Scotland’s distinctiveness in religion, law and administration, along with free trade throughout the new kingdom and its colonies. It was an incorporating union, with one parliament at Westminster. But it was altogether unlike the Tudor Laws in Wales Acts. The legislation of 1536 and 1543 incorporated Wales into the Kingdom of England. The Union of 1707 created a composite state, with a composite nation grafted on over time. Britain in its modern sense was forged in an Anglo-Scottish crucible.

That fact has expressed itself in different ways at different times. In the eighteenth century, the Church of Scotland, the Convention of Royal Burghs and local elites played their parts. The old Scottish Office was set up as far back as 1885 and expanded as the years went by. The Church of Scotland Act 1921 effected a compromise between an anti-Erastian Kirk and a sovereign Parliament. The UK never really had one National Health Service. The Tories stood as Unionists in Scotland until 1965. (They fought elections in the 1950s pledging to protect Scottish distinctiveness against socialist centralisation.)

Legislative devolution is different, because it creates an autonomous centre of political power. But it’s still in a long line of accommodations between the British state and the Scottish nation. It’s also a balance to English preponderance within the Union. It isn’t different because British politicians made a terrible mistake. It’s different because it’s a response for a democratic rather than an oligarchic age.

I doubt Britain could ever have avoided giving Scottish distinctiveness democratic expression. (And I don’t think it should. Devolution made good democratic sense.) But two consequences are, in my view, particularly underappreciated.

Shrinking, but not improving, the British state

First, unlike previous measures, devolution does nothing to make how the British state itself operates more appealing to Scots. It only reduces the scope of its activities. But despite the role of Scottish MPs, British politics became less Scottish over time. Devolving more powers often made sense in policy terms. But it also took up all the political space marked ‘reducing Scottish discontent’.

UK governments show little interest in recognising a devolved role at the centre. The Welsh Government’s call for a UK Council of Ministers falls on deaf ears. They show no sign of, say, thinking creatively about our second chamber. (Why, unlike almost any other state with a territorial challenge, don’t we even discuss some extra seats for the smaller nations in a reformed Lords?) And the current UK Government seems determined to undermine the conventions on which devolution rests.

Pushing the Union’s balancing act into the limelight

Second, as a new political system within the UK, devolution means politicians — and political noise. It has made the balancing act on which the Union of 1707 relies conspicuous outwith Scotland. That hasn’t been the case most of the time. But whether devolution is ‘fair to England’ is now a live question, with major consequences.

A century before the Union of the Parliaments, James VI’s Scottish courtiers attracted the ire of some English MPs. The spasm of Scotophobia surrounding Britain’s first Scottish Prime Minister is well-known. ‘Into our places, states, and beds they creep/They’ve sense to get, what we want sense to keep’ was only its most famous expectoration. But that kind of thing declined as the Union bedded in. And England mostly paid little attention to how Westminster acknowledged Scotland’s distinctiveness. That has clearly changed.

Symmetry versus balance

Anyway, reforming a democratic UK so the devolved nations feel they have more of a stake needs proper consent in England. As a result, tackling the first problem means facing the second head-on. And the view that fairness lies in symmetry — embodied in ‘English votes for English laws’ — will crash headlong into the view that the UK needs to balance England’s size.

Neither view is objectively wrong. But taken to their logical conclusion, the two are incompatible. Many in Scotland take too little account of the fact that the rest of the UK is not a mere backdrop for Scotland’s debate. But most people in England — understandably, as almost no one has suggested otherwise — don’t grasp that the debate involves them too.

One way to look at the American Revolution is to say the British and their colonists were each confronted by the other’s real view of their relationship. The British idea of parliamentary sovereignty over the Empire and the colonial view of their legislatures’ rights within it had diverged. And pitted against each other, they proved incompatible.

There is a risk of something similar nearer home. But I don’t believe the gap between English and Scottish understandings of the state we share can hold forever, unarticulated and unaddressed, in a democratic era. Any modern Union bargain for Scotland will have to combine a high degree of self-rule with a fair degree of shared rule. Those are core features of federalism, whether the UK can ever be remade into a federation or not.

I don’t know whether the people of England would agree to anything like that or what they might want in return. But in the long run, the survival of the Anglo-Scottish bargain may depend upon their answer.

This post was originally published on Medium.com on 21 February 2021.

State aid and the union state

Defending the Union is not the same as owning the Nats. Tory disdain for devolution post-Brexit endangers it even further

Constructing a UK internal market needs time and attention too

Some nationalists claim the United Kingdom has no such thing as an internal market. Granted, it has no formal project branded ‘UK single market’. But its four parts have sent MPs to Westminster longer than modern regulatory states have existed. Britain built an integrated domestic market long before it joined the then EC. Until 1999, EU law played no specific role in preventing divergence. And the UK has an unusual lack of internal barriers for a large state.

The problem is real, but the end doesn’t justify the means

When devolution arrived, a mix of reservations to the UK Parliament and EU law served to keep it together. That EU framework ceases to bind the UK from 1 January 2021, leaving our internal market vulnerable to erosion. In areas which are within devolved competence but constrained by EU law, ever more barriers could result.

As Canada shows, states can easily end up with major internal economic barriers, which you then have to try to negotiate away. In the UK this would do great economic damage, at least outside of England. Scotland, Wales and Northern Ireland all have the rest of the UK as their main external market, and we are all deeply integrated.

Data from the Scottish Government, Northern Ireland Statistics and Research Agency and UK Government Internal Market White Paper. Figures do not add to 100% due to rounding. Flag images from Wikipedia.

So the issue is serious, as all three devolved administrations say they accept. It’s hard to see how you address it without action at a UK level. So far, so reasonable: hence a White Paper. It’s also true that even with common frameworks, many areas currently regulated at EU level will fall entirely to the devolved legislatures.

Nonetheless, powers devolved within an EU framework aren’t the same thing as reserved powers. Constitutionally, the UK Government wants to reserve some things which are currently devolved. The Sewel convention is clear: the UK Government shouldn’t do this without consent. That convention is core to making devolution work. Parliamentary sovereignty and decentralised power don’t easily mix. Sovereignty needs self-restraint for them to rub along.

Further, the EU doesn’t work in the same way as the UK. EU lawmaking is far more consensual and member states are part of the process. EU law is also likely to give member states more room for manoeuvre than UK replacements. The UK has no equivalent to directives as opposed to regulations, for instance. UK institutions are likely to be far more single-minded and far less prone to compromise. That means an ‘equivalent’ reservation in any given area could well mean less devolved autonomy in practice.

The principle of agreeing common frameworks with the devolved administrations isn’t new or controversial. Reserving subsidy control (state aid) makes sense in policy terms — though that doesn’t let us off the constitutional hook of consent. But the White Paper proposes new cross-cutting constraints on devolved policy:

the Government now proposes a Market Access Commitment, which will enshrine in law two fundamental principles to protect the flow of goods and services in our home market: the principle of mutual recognition, and the principle of nondiscrimination.

I don’t necessarily oppose some version of this. But it has major implications, depending on how it’s drafted and which sectors are excepted. It could well mean major new constraints, over and above EU-derived ones, in devolved areas. We’ve always had regulatory divergence within the UK in some areas. Building regulations differ in Scotland and England, for instance. Will changes now be subject to a market access test?

The White Paper also takes a profoundly asymmetrical approach, with policy in England as the implicit norm. The legal market access commitment will only apply to devolved policy. But policy in England (or England and Wales, or Great Britain) in the same areas could create market barriers too. How far will the UK Government constrain its own approach, and proposals to Parliament, in these areas? Could ministers at least have to certify whether such proposals discriminate against other parts of the UK, for instance?

Would this mix — some EU constraints gone, some powers reserved, a new general constraint — mean more or less de facto power for devolved institutions? I don’t know. I don’t think anyone can know without seeing the actual drafting. Even that’s not enough to gauge how the market access commitment will pan out in practice. I do know that it has huge implications for how devolution works. It’s a big constitutional change: it merits proper discussion. And in our system, convention is quite clear that consent is required.

So the Scottish and Welsh Governments have every right to be outraged by the idea of imposing it upon them. And to consult upon it for a mere four weeks (a third of the time to consult on a reformed judicial pension scheme, for instance) is outright farcical. The problems with devolution and our home market have been discussed for over four years. And the Brexit cliff-edge on 31 December is of the UK Government’s own (perverse) making. Yes, the SNP always takes any excuse to invent grievances. That doesn’t make it right, or good for the Union, to give them real ones.

This isn’t a first, either. Since 2016, the Sewel convention has been ignored several times, and not just for Scotland. Whatever you think of the arguments for an exception in any given case, it’s becoming a pattern. Among multinational states, the UK seems unusually willing to just override devolved competence. At the same time, secession is unusually — possibly uniquely — easy to seek. In a union state where a British nation overlaps with several other, older nations, that’s a strikingly unstable mix.

Voice, choice and consent

The mix is particularly dangerous to the Union in Scotland. Much of independence’s appeal comes down to agency — speaking to a view that Scotland has no real say in Britain. In response, UK governments yo-yo between ever-looser union and centralising confrontation. Neither works. On the one hand, there’s a limit to how far you can or should devolve within a state. On the other, preserving the Union and owning the Nats are not the same, though a certain sort of Tory seems unaccountably convinced that it is. If you don’t want the UK to break up or become a constitutional God of the gaps, you need to make its central institutions more legitimate in Scottish eyes.

Brexit has damaged support for the Union in Scotland. But it offered a chance to grapple with a more shared approach to governing the UK. The Welsh Government is the most sensible and least heard of the four administrations on constitutional issues. It made proposals for a UK Council of Ministers to decide on common frameworks. More recently, it has called for the successor to state aid rules to be enforced by a neutral body.

Whatever the detail, the principle is clear. Devolved governments need a real say in this area, and the UK Government can’t be both party to and arbitrator of shared rules. Yes, that will slow some UK decision-making down. It would be no bad thing if some UK decisions had to take some more time and be a bit more considered. But for good or ill, it’s part of the price of sustaining a complex union state.

The internal market debacle provides a good example of a core problem with how the Union currently works. Federal systems usually involve some element of shared rule as well as self-rule. The UK, unless and until it finds ways of dealing with the English Question and dividing legal sovereignty, can never be a true federation. But in practice, devolution often raises federal questions, and so does Scottish discontent.

When required to think about Scotland, English commentators often get worked up about money. In doing so, they miss the point about voice. Somehow, the British central state has to find a way to make itself more palatable north of the Border. It has to satisfy enough Scots that Britain as a state isn’t England-Plus with unreliable Scottish opt-outs.

If it can’t, the end of the Union of 1707 is only a matter of time. The Conservatives may think they’re standing up to the SNP. They’re actually dancing to its tune.

This post was originally published on Medium.com on 18 July 2020.

Hard choices

The SNP should debate whether a separate Scotland should join the EU post-Brexit. But all their options are bad

We often forget the SNP campaigned against the Common Market in 1975. But ‘Independence in Europe’ has been an SNP rallying cry for quite some time now. The European Union creates an unusually benign home for small states. To the SNP, the EU also promised continued economic integration with the United Kingdom after secession. The SNP claim that Scotland could carry on in the EU automatically was almost certainly spurious, but that didn’t stop them.

Brexit changes that. It makes the SNP’s political case more appealing, but its practical case harder. It creates sharper dilemmas for a separate Scotland. So it makes sense that some in SNP ranks are raising the question of Scotland’s future EU relationship. Most still back EU membership, including Nicola Sturgeon herself. Some look to the European Economic Area — the so-called Norway model. Are there any good options?

A hard border in Great Britain?

Many Scottish nationalists use Northern Ireland as Brexit grievance fodder. It’s an ugly gambit: Scotland is a country which voted to stay in the UK very recently, not a post-conflict region with a contested land border. Nonetheless, Theresa May’s backstop and Boris Johnson’s frontstop for Northern Ireland show what you need to keep a border open.

Scotland wouldn’t just need to align with the UK on customs and rules of origin. Not joining the Schengen Agreement would avoid checks on people, but still wouldn’t suffice. Scotland would need to align on goods, VAT and sanitary and phytosanitary standards (SPS) too. Joining the EU prevents that, unless the UK aligns with the EU or the EU exempts Scotland from some EU rules.

In the EEA but outside the EU, Schengen, VAT and the EU Customs Union wouldn’t pose an obstacle. But goods regulation remains, as does SPS: EEA members don’t have free trade in agriculture, but apply plenty of EU food safety rules. And being outside the EU Customs Union doesn’t avoid the need for customs checks and rules of origin between Scotland and the UK. And a customs union with the UK is hard to square with joining the European Free Trade Association — required for a non-EU EEA member.

Liechtenstein manages, but Scotland is not a microstate

Granted, one EEA member has an open border with a non-EEA neighbour. Liechtenstein has had a customs union with Switzerland since 1923. It also applies Swiss VAT law. They planned to join the EEA together, but the Swiss rejected joining in a referendum. Switzerland pursued bilateral agreements with the EU instead.

This delayed Liechtenstein’s EEA entry until 1995, but it managed in the end. Both Swiss and EEA goods circulate via so-called ‘parallel marketability’. The authorities monitor goods ‘in the market’ to keep EEA-only products out of Switzerland. Where EEA goods attract tariffs in Switzerland but not Liechtenstein, Swiss customs reimburses importers to Liechtenstein. (This isn’t too far from the plans for Northern Ireland.)

This is much easier for Liechtenstein than it could ever be for Scotland. Switzerland aligns with the EEA for most goods and applies EU SPS rules. It’s in EFTA, along with Norway, Iceland and Liechtenstein. All but Switzerland joined the EEA, reducing the scope for friction due to other trade deals. Furthermore, Liechtenstein is tiny — and so permitted to be anomalous.

Scotland, by contrast, would have the EEA’s largest EFTA population. The UK plans to diverge from EU norms far more than Switzerland. We don’t know how its new trade deals will go, but it shows no interest in joining EFTA. Switzerland has a long history of cooperation with its small, sovereign neighbour. The UK would be asked to help Scotland carve a niche to advantage it against itself.

Cake from London, Brussels, Oslo, Reykjavik and Vaduz? No chance

Only EU membership could grant Scotland a proper vote on EU rules. Overall, though, being a giant Liechtenstein might well be better for an independent Scotland than EU membership. But it’s not going to happen. Neither EU nor EFTA countries will cut corners to keep the Scotland-UK border open. Doing so would mean 49% of the EEA’s non-EU population lived in an anomaly next door to a far trickier neighbour than Switzerland.

Yes, the EU bent some rules for Northern Ireland. Scotland will not get the same offer. It was required for Northern Ireland because Ireland, a continuing EU member, had a vital national interest at stake. Perhaps excepting a Schengen opt-out to preserve the Common Travel Area, Ireland has no such interest in helping Scotland.

Nor would the UK have much interest. It wants to be able to diverge from the EU. It will want to secure the integrity of its regulatory order. And Scotland would be an important trading partner, but not as important as the EU. The UK left the EU to avoid pooling sovereignty: it wouldn’t re-pool it with Scotland for much less economic gain. Any deal would mean Scottish rule-taking and UK decision-making.

Breaking up is hard to do

So Scottish secession means a hard Border unless Brexit softens or the UK rejoins the EU. Joining the EEA would allow fewer barriers with the UK in some areas (eg agricultural tariffs) if the UK agreed. Nonetheless, EEA membership would remain a choice to dealign from the UK.

Still, the scale of Scotland’s UK trade means even this flawed compromise might beat EU membership on economics. A separate Scotland would have two main trading partners: the UK and the EU. But those two partners are far from equal: UK trade dominates.

Data from the Scottish Government. Figures do not add to 100% due to rounding. Flag images from Wikipedia.

For now, Scotland sells to the rest of the UK within a far more integrated market too. There’s a reason the Commission keeps battling to complete the single market. From digital services to hairdressing, from the limits of EU mutual recognition to the UK monetary and fiscal union, sharing a state goes much deeper than joining the EU.

For both reasons, the shock of leaving the British home market — whether for the EU, the EEA or neither — would dwarf leaving the single market. This matters. UK fiscal transfers are crucial, but not the biggest economic question about Scottish secession. The bigger question is: how far would growth exceed or fall short of growth within the Union?

Nationalists make heroic assumptions here, cherrypicking small states and copying countries whose growth isn’t higher than the UK’s. Above all, they don’t factor in the true cost of their political project.

Secession will hurt. So tell Scots what you think they’re paying for

The economic arguments against Brexit apply in spades to breaking up Britain. Scotland’s biggest economic interest lies in its home market with most of its trade. Economic gravity, crucial in Europe according to the SNP (and they’re right), still applies within the UK. If Scotland secedes, the closest possible alignment with the UK would be its least damaging option.

But such close alignment with the UK isn’t realistic. It can’t be: the point of Scottish secession is rejecting the neighbours. Shared EU membership could have cushioned that shift, but not now. Unsure voters will back major pain for radical change, the SNP still wants to sell separation as safer than the Union. But that’s a worse lie than anything from Vote Leave. And the SNP leadership are far too intelligent not to know it.

Breaking up Britain is a far bigger leap of faith than Brexit. It would pull Scotland away from its main market and closest neighbours and the people with whom it shares most. Its rationale is ideological and nationalist, not practical or economic. The least the SNP could do is own its costs.

This post was originally published on Medium.com on 10 February 2020.

Not all Brexit Deals are alike

On balance, I supported Theresa May’s Deal. I can’t support Boris Johnson’s

The United Kingdom voted to leave the European Union just over three years ago. I did not. Those three years feel like many long, weary lifetimes in politics. Throughout that time, I’ve felt we should accept the result and work with it. I was open to a variety of different moderate Brexit outcomes and I never wanted to embitter our politics even further with a second referendum.

I made the argument for Theresa May’s Deal with a heavy heart. I feel grimly vindicated in making it. May was succeeded by Johnson, contemptuous of constitutionalism and unfit for high office. A deal which essentially included a customs union and a fairly high level of alignment with the EU was replaced with a Brexiteers’ Brexit. We now face a far worse choice than before, having badly damaged our democratic norms in the process.

But when I supported May’s Brexit, I made a judgment on a particular package. And as someone who takes the Union seriously, as a social democrat, and as someone willing to accept a reasonable but not brutal Brexit, Johnson’s goes too far. I confess I didn’t expect him to strike a deal by now. I also thought he would only agree one if he had the DUP on board. And I knew the EU would happily adopt a Northern Ireland-only backstop, but I didn’t think they would make so many concessions on its details. But almost all the changes are greatly for the worse and the balance of risks has changed.

The new Northern Ireland backstop: consent without convergence

The reasons for a backstop are well-rehearsed. Brexit forces a series of hard choices upon Northern Ireland — soon, by default, to have a land border with the EU. That border is historically contested, logistically impossible and politically fraught. Border communities have been abundantly clear they will not accept checks and controls. And regulatory and customs divergence means checks and controls.

The EU proposed that Northern Ireland align with Border-relevant parts of EU law and that controls be carried out between Great Britain and Northern Ireland. That cut across unionists’ links to the rest of the United Kingdom, with significant (and likely to grow) barriers to most of its trade. Northern Ireland would also take rules shared with Ireland with no say in them. This differed fundamentally from North/South cooperation by agreement between the two jurisdictions.

Theresa May fought hard to secure a limited UK element to the backstop. Great Britain would have been in a customs union with Northern Ireland and the EU. She also accepted that to keep Great Britain and Northern Ireland close, Great Britain would have to stay close to the EU. Faced with a choice between regulatory freedom and the economic cohesion of the Union, she chose the Union. Boris Johnson chose the opposite. He returned to the Commission’s original backstop, changed its provisions on customs and secured new ones on consent.

Theresa May’s customs partnership has been reborn for Northern Ireland alone. Northern Ireland would legally be outside the EU customs union and in the UK’s customs territory. However, the EU’s customs border would be administered at Northern Ireland’s ports. Some goods bound for Northern Ireland would be exempted from EU tariffs from the start. Others would either need to pay tariffs and claim rebates or have tariffs effectively waived by the UK Government up to a limit. This means Northern Ireland can benefit from such trade deals as the UK negotiates.

Meanwhile, the new consent provisions mean the backstop stands or falls through votes by members of the Northern Ireland Assembly. The backstop would come into force at the end of the UK transition period. After four years, the Assembly would vote. Support from a simple majority of MLAs would keep the backstop in place, with another vote four years later. With a cross-community majority, the next vote would be after eight years. If the backstop is rejected, we would have two years to identify alternative arrangements for the land border. Whether the Assembly ever rejects it probably depends on the Alliance Party’s electoral fortunes. It is unlikely, but not impossible.

May’s backstop, in my view, made it likely that Great Britain would remain aligned to Northern Ireland and major new barriers between the two would not arise while protecting goods trade with Ireland and avoiding a hard land Border. Because Great Britain couldn’t lower tariffs below the EU’s, a radically different trade policy wasn’t on offer. That removed the point of rules on goods which differed from the EU and Northern Ireland. The hard choices Brexit forces on Northern Ireland would have been, more or less, avoided. Nationalist alienation would have been reduced and Border communities’ way of life would have been preserved. And even unionists should recognise that without acquiescence from people of a nationalist background, the prospects for the Union would be poor indeed.

I judge that Johnson’s backstop poses a far starker, potentially destabilising choice for Northern Ireland. Great Britain will, over time, move away from the EU if he gets his way: that is the whole point of the exercise. I do not believe that can happen without growing barriers to trade between the two. We should remember that most of Northern Ireland’s trade is with Great Britain. Clearly this backstop also gives Northern Ireland a competitive advantage over Great Britain in EU trade. I have yet to see hard economic evidence that this outweighs major divergence from its largest market. The likelihood is a significant economic realignment over time, to which most unionists do not consent and which has major political implications.

The institutional provisions are deeply worrying too. I welcome a consent mechanism in principle. But I fear an Assembly vote every four years (not even in line with the Assembly’s five-year electoral cycle) will polarise Northern Ireland’s politics still further and make it even harder for its institutions to work. Do we want every Assembly election to be overshadowed by whether the the region will align with Great Britain or Ireland? Every Border constituency voting on whether MLAs risk bringing back a hard Border? Every core unionist constituency voting on whether they remain aligned with Ireland?

From a unionist perspective, Johnson’s backstop trades the substance of close alignment with both Great Britain and Ireland for the formality of consent which is unlikely to be withdrawn — and which could only be withdrawn at an enormous price. At least as importantly, from a cross-community perspective it raises the temperature of Northern Ireland’s politics indefinitely and undermines its institutions. May’s backstop was, especially if combined with alignment by Great Britain and mechanisms for input in the longer term, liveable. Johnson’s is better than No Deal, given how disastrous that would be for Northern Ireland. But Northern Ireland deserves better than either Johnson’s Deal or No Deal.

The UK’s new Brexit destination: no compromise, no safety net

The new backstop doesn’t just let Great Britain diverge from Northern Ireland. It removes the elements which nudged the whole UK towards a closer relationship with the EU. Those elements made Theresa May’s concessions to Labour MPs more credible. The backstop also included a level playing field, to prevent a race to the bottom between the UK and the EU. This covered aspects of tax, social and labour standards, the environment, competition and state aid.

I’ve called the Political Declaration on the Future Relationship a very solemn press release before. I broadly stand by that: it’s the EU’s starting point for negotiations, and assuming our government stays the same it will also be the UK’s. Given recent history, it is entirely possible that the UK will again find itself in political paralysis, in which case the Political Declaration’s default may be more influential than we think. First drafts often shape outcomes: look at the Commission’s original backstop.

Still, it’s not binding. The level playing field is still in Johnson’s Political Declaration and name-checks the same categories as in May’s backstop. But while it makes clear that how far the UK agrees not to try to undercut the EU and how much market access it gains are linked, it can do no more than that. I accept that, while the UK legally needed EU agreement for Great Britain to exit the backstop, such agreement would not have ultimately been refused. But it makes at least some core protections ‘stickier’ and it nudged us towards a more moderate Brexit.

Ultimately, the whole structure of Johnson’s Deal points to a much harder Brexit than May’s. Whether you described May’s Deal as Jersey Minus or a cross between Turkey and Ukraine, its logic pointed to a fairly high level of alignment in goods. May believed arrangements would be found to let the UK out of a customs union. In reality, I am sceptical the new customs arrangements for Northern Ireland would have been on offer any time soon.

But where May most likely offered a Brexit which was neither soft nor hard, Johnson offers a very hard Brexit indeed. Disruption aside (obviously a huge ‘aside’), it’s probably not all that much better than No Deal in the long run. May’s Deal was a compromise — from a Leave starting point (they did, after all, win), but a compromise. Johnson’s Deal is a compromise with the EU, but it effectively tells Remainers to knuckle under and be grateful they don’t have to eat turnips.

Johnson is riding roughshod over a country which only voted narrowly for Brexit, where two out of four constituent countries voted Remain. He also risks fuelling the cause of Scottish secession from the UK. As a matter of policy, a harder Brexit makes for a far sharper choice for a separate Scotland. Realigning away from the UK and towards the EU would be an immensely painful undertaking. And few would relish checks and controls on the Tweed or Solway.

But as Brexit makes very clear, people don’t always vote on economics. I am British. I am the child of a Scottish father and an English mother. I am not going to risk throwing my country away willingly just so Boris Johnson can ‘get Brexit done’ on his terms alone.

What are the risks?

I am not willing, if I have a viable choice, to see this passed without further reference to the people. But not being a fan of turnips or gambles, the question follows: what are the risks of voting the deal on the table down in the absence of a referendum?

I take a different view to the one I took in March. Unlike then, if a deal is not approved by MPs by the end of today, the Prime Minister is legally obliged to seek an extension under Article 50. Even if we wish to pass this Deal, that is self-evidently in our interests. The idea of trying to pass something as significant and complex as a Withdrawal Agreement Bill in 10 days, with trench warfare in Parliament, is farcical. Legislating for Maastricht took over a year. In the interests of basic democratic scrutiny, we should want an extension now.

No Deal on 31 October is therefore not a legal option as a UK policy choice. In my view, the courts will make short work of attempts to claim otherwise. Of course, no UK Act can prevent the EU from refusing an extension. But though our colleagues’ exasperation is evident and readily explicable, I think outright refusal is a very unlikely scenario.

The choreographed warnings from Juncker, Macron and Varadkar make political sense. And if Brussels forces our hand by refusing an extension, then clearly we will have to accept the Deal as it is. The warnings are not, however, categorical. And revealed preference indicates that while the EU will want any extension to be for a reason, it does not wish to force a No Deal exit. The election which would inevitably follow gives a chance of breaking any political deadlock, which gives the EU an incentive to facilitate one if it becomes clear this Deal will not pass.

Johnson has thrown himself behind his Deal. It now seems overwhelmingly likely that if blocked, he would seek an election on a platform of passing it. He may very well win a clear majority on that basis. If so, there is at least an electoral mandate for the government to proceed. I doubt his odds of outright victory are higher than they’d be after ‘getting Brexit done’. Given these scenarios, it seems to me that there is little to lose.

There is a line

I backed May’s Deal with a heavy heart. Perhaps oddly, I oppose this Deal with a heavy heart too. Politically, I am exhausted by the last few years. I am tired of the polarising ferocity of the Brexit process. I fear what we have done to ourselves and to each other in this country and I fear what we will carry on doing. I wish MPs had compromised when there was a real compromise on the table.

But if this is now the only Brexit on offer, then — having wished for, argued for and supported compromise — I feel forced into preferring a second referendum to see if Johnson’s Brexit is a price people are truly willing to pay. I am far from sure Remain can get one and I am far from confident Remain would win one. Frankly, my gut instinct is that the campaign would go against them. But it is clear to me that not enough people are willing to compromise on a reasonable Brexit.

And if there is a second referendum and if Remain wins, I am under no illusions. At best, we will have restored the threadbare legitimacy of EU membership to which David Cameron referred in 2013. There will be a heavy price to pay and a daunting task ahead in patching that legitimacy up over years. I am far from sure we would succeed.

But there has to be a line. And for peace process, unionist, social democratic and Remain-voting reasons, I have reached mine. So be it. One way or another, let the people choose.

This post was originally published on Medium.com on 19 October 2019.

Special cases

Northern Ireland is a post-conflict region with a unique border challenge. Don’t use it as a grievance or a rhetorical trick

As discussions about a revised Northern Ireland backstop in all but name intensify, calls for other parts of the UK to get a look-in have unsurprisingly resurfaced. In fairness, this time round it’s come from commentators more than politicians. But the line resurfaces far too often and deserves to be called out properly.

Three parts of the UK voted to remain in the EU: Scotland, London and Northern Ireland. But the EU is not willing to treat Northern Ireland differently because of its referendum vote. It is willing to treat Northern Ireland differently because Ireland, a continuing EU member state, deems it a vital interest. Ireland regards a backstop as crucial to its view of the Belfast/Good Friday Agreement, its full place in the EU and its strategic autonomy vis-à-vis the UK.

Others, notably most Northern Ireland unionists and the current UK Government, dispute Dublin’s view of the 1998 Agreement. The competing merits aren’t my point here. However, it is hard to dispute that a clear majority in Northern Ireland want to avoid a hard border. And opposition to a visible land border, checks and controls is overwhelming among border communities. This border raises challenges rooted in lived experience, logistics and deep-rooted ties which don’t exist anywhere else in the UK.

The economics of different backstops vary. May’s probably would have minimised barriers between Great Britain and Northern Ireland in practice as well as protecting North/South goods trade. It might even have provided an advantageous niche for Northern Ireland with access to EU and UK markets, though claims of a bonanza have been more asserted than evidenced. A Northern Ireland-only backstop — meant to allow Great Britain to go its own way — is much more likely to raise barriers to trade as divergence grows.

There is, however, no serious case for a different Scottish EU relationship within the UK. 60% of Scotland’s external sales went to the rest of the UK in 2017, compared to 18% which went to the EU27. Exports to Ireland weigh in at somewhat under 2%. There is no equivalent to the challenges of Northern Ireland’s trade with Ireland. The economics of Scottish independence are dire — but diverging from the rest of the UK without leaving causes a lot of the economic damage and offers less democratic say in the relevant rules.

The backstop is, furthermore, designed to prevent a visible land border. Treating Scotland (or Wales, or London) differently would create one. The Anglo-Scottish border does at least make some geographical sense — hammered into shape through wars between kingdoms. Unlike the Anglo-Welsh border, it wasn’t finalised when creating 13 counties in an act of administrative incorporation. Unlike the border on the island of Ireland, it didn’t spring from a bitterly-contested hiving-off of six counties. Far fewer people live beside it than the other two.

Nonetheless, creating checks on the Tweed and barriers to most of Scotland’s trade in return for fewer checks in the North Sea and less than a fifth of its trade is the kind of thing you want because of ideology, not practicality. It’s also moot. The EU is obviously not especially enamoured of the UK at present. Its members are, however, considerably less enamoured of giving other separatist movements ideas. Spain (including Catalonia and the Basque Country), Belgium (Flanders) and others have no proactive interest in setting precedents.

Further, Brussels has no reason to make special arrangements outside Northern Ireland. The EU is a membership club, and the interaction between its rules and Ireland’s stated interests, modified a bit to try to get it past the UK, is the source of the backstop. No EU member has a vital national interest in helping tweak EU rules for Scotland, whether via a ‘Scottish backstop’ or the kind of Liechtenstein solution the Scottish Government mooted in 2016.

So ‘If Northern Ireland, then what about Scotland?’ fails on logistics, economics and geopolitics. The same applies elsewhere in Great Britain. I’ve focused on Scotland in this piece, largely because its case is the one most fleshed out since 2016. But that isn’t entirely fair, partly because the other cases are even weaker and partly because ‘If Northern Ireland, then what about us?’ has spread a bit. We’ve seen it as a rhetorical trick from some in London. We saw it when Adam Price said any deal for Bangor, Northern Ireland must apply in Bangor, Wales.

And that, for the most part, is what all this is: a rhetorical trick. It’s using Northern Ireland as leverage in other political battles — Remain vs Leave and Yes vs No. It may well often be thoughtless rather than calculated. Either way, Northern Ireland’s case deserves to be considered on its own merits. The region is not an excuse for Scottish (or Welsh) nationalists to whip up grievance against Westminster. Nor it is a chance for Remainers to claim unfairness to Great Britain.

Northern Ireland is uniquely harmed by leaving the EU. There is a powerful argument for trying to stop Brexit on that specific basis. But too many people died in conflict, and the settlement built to resolve it is too important, for it to be used as a grievance or a tool. Politicians and commentators elsewhere should stop doing it.

This post was originally published on Medium.com on 14 October 2019.

Cashing in on discontent? National gripes, public finances and a fractured Union

Nations are as liable as humans to squabble over money, and the four countries of the United Kingdom are no exception. Arguing over GERS in Scotland is one example; moaning about Barnett in England is another. Part of our problem is that these things are hard to measure. Another is that, as ever with money, all sides have an axe to grind.

So inevitably, our press loves stories implying that one country or another has its hand in the till. The Times ran a particularly good example a couple of weeks ago. The central claim was as follows:

Government efforts to reduce the budget deficit since the financial crisis have been delivered almost exclusively by England, which is on track to balance its books this year, while the devolved administrations continue to borrow heavily, according to official figures.

This is deeply misleading. For a start, devolved administrations mostly don’t control how much revenue is raised in their areas. With major exceptions in Scotland and moderate exceptions in Wales and Northern Ireland (mostly recent), they’re funded by block grant. They have very limited borrowing powers. The Times’ ‘borrowing’ is really the gap between UK and devolved spending and revenue. That gap has been mostly controlled at UK level throughout this period.

Still, it’s true that the gap in England has narrowed much faster (a 92.2% drop) than it has in Scotland (3.1%), Wales (16.6%) and Northern Ireland (9.9%). So have the four countries been getting radically different spending settlements since 2009/10? The figures for total public spending show they haven’t.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

England has actually had the highest percentage rise in public spending, at 11.2%. Scotland came in at 11.0%, Northern Ireland went up by 10.6% and Wales rose by 9.6%. Leaving aside whether that’s fair for reasons of population growth or relative need — and differing spending among the regions of England — this is not where our ‘England is paying off the deficit’ story comes from.

The story seems very different when we look at government receipts. Here we do see some major differences. England’s revenue growth (36.4%) is somewhat higher than Wales’ (30.5%), quite a bit higher than Northern Ireland’s (26.7.%) and over double Scotland’s (15.2%). What’s going on here? The first clue comes from which regions of England’s receipts are growing fastest.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

The wider south east of England is, as you’d expect, way out in front. Wales isn’t out of step with most of England; only Scotland seems vastly out of kilter. So the story isn’t one of Westminster largesse flowing to the devolved nations at all. Instead, it’s one of UK growth being greatest in London and the south east, as it usually (and worryingly) is. To paint this as the former rather than the latter is strikingly unhelpful.

Some may wonder why Scotland is so far behind. It isn’t usually the worst performer in the UK by any means, so what’s happening here? But again, the answer is mostly pretty clear. These figures include a geographical share of North Sea revenue — Treasury gains from oil and gas — most of which is allocated to Scotland. And, famously, oil and gas prices have plummeted in recent years. Strip out the oil and Scotland’s growth looks much more normal. That’s especially true when you remember England’s population is growing faster.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

So The Times’ story of England tightening its belt while the rest of the UK lives high on the hog makes no sense at all. Public spending has gone up by fairly similar amounts in the four countries, southeast England’s economy has grown the most, and Scotland’s tax take was hit hard by a collapse in oil and gas prices. And anyway, the other three countries’ fiscal envelopes were mostly set by Westminster.

Does this matter beyond due concern for fair reporting? I think so. Were I to single out one thing which could unravel the UK, I might well choose competitive grievance. PG Wodehouse’s unkind quote is often echoed for English audiences, in varying levels of poor taste. The SNP’s opponents in Scotland regularly accuse it of hunting for grievances — sometimes fairly, sometimes less so. But if we diagnose a grievance culture in Scotland, we’ll have to diagnose one in England too. It’s often aimed at Scotland, but also at the rest of the UK more generally.

This is a serious problem for the UK. A multinational Union needs give and take and general reasonableness to work well. That’s especially true for a Union made up of one very large nation and three much smaller ones. Constant diatribes about how hard done by England or Scotland (or Wales or Northern Ireland) are do nothing to help and much to hinder that process.

Since 2014, Scotland’s public debate has demanded much of the rest of the UK while paying relatively little attention to its views. England’s public debate, such as it is, always seems to reduce in moderation as it gains in prominence. Wales and Northern Ireland struggle to be heard, and the latter often attracts ill-concealed irritation when it cuts through. It may or may not prove sustainable: it definitely isn’t healthy.

Not all the UK’s gripes focus on cash, but quite enough do to be going on with. We could improve our public discourse by at least giving a fair picture of the sums. As it stands, unionists may well live to regret letting our four countries regard each other as burdens rather than partners.

This post was originally published on Medium.com on 1 October 2018.

Brexit and a balanced backstop

Anyone who thought about Brexit should have known the border between the UK and Ireland would be a knotty and crucial issue to solve.

The common travel area allows British and Irish citizens to cross borders freely. We also share a customs union, regulatory framework and VAT/excise arrangements. These remove the need for sea or land border checks between the UK and Ireland. Brexit puts an end to the customs, regulatory, VAT and excise arrangements, with huge social, economic, political and constitutional implications. Ireland has made the land border its priority, and the EU26 back them to the hilt.

A combination of its red lines and hubris, Northern Ireland’s needs, Ireland’s strength of feeling and the EU27 position on the single market presents the UK with a huge problem. We have to have an agreement, and so we have to agree a backstop. But an economic border with Great Britain violates the spirit of the Belfast/Good Friday Agreement at least as much as checks on the land border. I am not sure Brussels understands what undercutting unionists like that might mean. I’m not even sure Dublin (very much alive to nationalists’ concerns) fully grasps the implications. (And you don’t have to let London, which remains primarily responsible, off the hook to say so.)

The main practical elements of the border problem are:

  • the EU customs union
  • the EU VAT area
  • EU arrangements for excise duties
  • the EU acquis in goods — including agricultural and fisheries products, together with sanitary and phytosanitary rules (but not the CAP or CFP).

Is there any way to square the circle? Below I suggest a possible way through. I’m not saying it’s foolproof, or necessarily right. But it might help us pick our way through.

Customs, VAT and excise: the UK follows the EU

The first step would be to agree an all-UK customs union, as well as the UK adopting the EU’s rules on VAT and excise duties. These aren’t seen as part of the single market and so don’t breach the EU’s ‘four freedoms’ red line.

The EU doesn’t object to an EU-UK customs union in principle. The UK would need to accept the common external tariff for all goods and the full Union Customs Code. That’s fine: we’ve basically conceded it for backstop purposes anyway. The Commission claims Article 50 cannot extend it to Great Britain, but the EU would probably agree to it via some legal means.

The harder question is whether the EU27 would be willing to treat VAT and excise similarly. No non-EU state has secured this except Monaco (thanks to its special relationship with France). The role of the CJEU (note that the EFTA Court doesn’t deal with the acquis in VAT or excise) would need clear protection. But it doesn’t breach the EU’s position on the four freedoms.

Goods regulation, part one: Northern Ireland follows the EU, but what about Great Britain?

The toughest issue is regulatory alignment in goods. So far, the EU27 have said the single market cannot be cherry-picked for goods and the four freedoms cannot be split.

The first concern is that the UK could deregulate its services, produce goods more cheaply and then exploit its single market access. But this is essentially a question of getting ‘level playing field’ issues right. These are mainly state aid, employment, health and safety and environmental standards, and they can also be addressed in any backstop. Indeed, the Commission’s draft backstop does cover them for Northern Ireland.

That leaves the divisibility of the four freedoms. For the final deal, the UK hopes to end free movement of persons by forgoing free movement of services. Its position implies something similar for the backstop. In public, the EU27 have consistently rejected the idea. Whether, and to what extent, public pronouncements match private reality remains hotly disputed. In any event, banking on such a climbdown to square the backstop is quite the risk.

Goods regulation, part 2: Great Britain follows Northern Ireland, and checks are selective

Still, we might be able to pick our way through the Commission’s Northern Ireland-only backstop and the Government’s view that it should be UK-wide. The Commission says alignment between Great Britain and Northern Ireland is for the UK to deal with. Now, I think that’s pretty disingenuous in the context of a Northern Ireland-only backstop. Both sides need to agree that standards, customs, VAT and excise are similar enough to avoid border checks.

The Commission’s choice of words offers a possible clue. A couple of stories have suggested the UK is exploring whether ‘parallel marketability’ might help solve this problem. Parallel marketability has already entered the Brexit debate (for Scotland and Northern Ireland). It’s how Liechtenstein squares EEA membership with its customs union with Switzerland. Goods made to either EEA or Swiss standards can circulate there. Liechtenstein then has to take steps to keep goods which attract Swiss tariffs or don’t meet Swiss standards out of Switzerland.

This system works for a principality of 38,000 with one open border. (The Austrian border is checked.) Major divergence would probably test it to destruction if Northern Ireland accepted goods made to both EU and UK standards. There’s a land and a sea border, both politically fraught and one with a long tradition of smuggling. But if the whole UK forms a customs union with the EU and adopts EU rules for goods, VAT and excise, many concerns fall away. There would be no divergence in goods standards to monitor. The UK would apply the common external tariff, so tariff differences wouldn’t be an issue.

So if Great Britain aligns in full, could parallel marketability avoid systematic checks on the land and sea border? We would still have checks between Great Britain and the EU26. (Whether we’d have them between Great Britain and Ireland or between Northern Ireland and the EU26 is an open question.) The risk would now be one of principle, not practical impact.

Could we make it work?

The volume of trade between Great Britain and the EU26 would make major trade diversion via Northern Ireland fairly obvious. (That holds, to a lesser extent, for trade between Great Britain and Ireland.) The current draft protocol includes a specialised EU-UK committee to oversee it. In this model it could monitor reported traffic flows, receive reports from UK and EU/Irish authorities, and require action. Spot checks could be carried out within Great Britain, Northern Ireland and Ireland, and on a intelligence-led basis at ports and on land. VAT records could also help track some re-routing of goods.

Legally, the Commission claims Article 50 can be used for a Northern Ireland backstop, but not a UK-wide version. I think that’s dubious. EU-UK relations cover more than the contents of a backstop, so I don’t think it pre-empts the conversation about those relations. The idea that the EU’s Article 50 competence is geographically limited also seems weak. (The Belfast/Good Friday Agreement argument that Northern Ireland can be covered, but not the whole UK, rests on a one-sided assessment of that accord in my view.)

But the EU27 can’t be persuaded on the law, is there another option available? Could the backstop in the Withdrawal Agreement could include a commitment to amend it via Article 218? This is the legal basis the Commission cites for UK-wide elements. We could publish those amendments with the Withdrawal Agreement and ratify them during the transition.

Why should anyone do this?

For the UK, this option beats the current backstop. It addresses the Northern Ireland issue. We’ve already accepted a customs union for any fall-back arrangements, so we don’t lose much from a global trade point of view. In practice we’d adopt most EU goods standards anyway. Border checks would still exist for Great Britain unless a wider deal scraps them, but shared standards and no rules of origin helps business.

For the EU, this squares a tricky circle, delivers for Ireland and upholds its stated principles on the single market pending a wider deal. The UK aligning in goods, not services, works nicely for a union which is a net exporter of goods and a net importer of services vis-à-vis the UK, so long as level playing field rules are robust. The UK will be seen to pay a price. And it forestalls a regulatory competitor in goods, where the single market is most developed.

And overall?

We’d have a UK-wide backstop framed to fit the language of the Joint Report. The whole UK would align with the EU on customs, VAT and excise. Northern Ireland would align with the EU on goods. Great Britain would align with Northern Ireland on goods. And the EU27 would do the minimum required to avoid borders between Northern Ireland and either Great Britain or Ireland.

It’s not ideal for anyone. But the backstop is supposed to be a last-ditch solution. We’re seeking tolerable imperfection. This might fit the bill.

This post was originally published on Medium.com on 6 September 2018.

Consent and conciliation: Brexit and the Border

Given the ambiguity in December’s Joint Report between the UK and the EU, the UK’s reaction to the EU’s draft Withdrawal Agreement is unsurprising. Equally unsurprisingly, anger focused most on the protocol for Ireland and Northern Ireland.

The Irish Border is Brexit’s most fraught question. People can cross it without checks due to the Common Travel Area. Military checkpoints closed over time: the last came down in the last decade. Goods cross unchecked, thanks to a customs union and shared regulatory standards. And thanks to common EU systems, VAT and excise duties don’t need to be checked either. Brexit puts this at risk.

Border protocol

The protocol clarifies that the UK and Ireland can continue to make provision for the free movement of persons without checks. This is crucial: controlling travel between Ireland and Northern Ireland would prove unworkable. The symbolic and human implications of trying would be appalling. Checkpoints would likely become targets. In 1939–52, we had controls between Great Britain and the island of Ireland instead.

More contentiously, the protocol lists areas where Northern Ireland would apply EU law to avoid checks on goods or customs. The ‘common regulatory area’ would cover:

  • EU law on the free movement of goods
  • EU customs legislation, with Northern Ireland considered part of the EU’s customs territory
  • bans on restricting imports/exports, both upfront and by the back door
  • EU law on VAT and excise duties.

EU sanitary and phytosanitary rules and standards for agriculture and fisheries would apply. The same goes for wholesale electricity markets, much environmental protection, and state aid as it affects EU-Northern Ireland trade.

You can argue about whether every aspect of this protocol represents the ‘bare minimum’ to avoid a hard Border. Ukraine’s Deep and Comprehensive Free Trade Agreement provides a precedent for internal market treatment on the basis of ‘approximating’ legislation. (I suspect ‘approximation’ will look very much like ‘adoption’.) Other approaches which recognise the Court of Justice of the European Union’s jurisdiction could also be found.

Still, I can’t see how you avoid any border checks without regulatory alignment in goods, a full customs union and shared law on VAT and excise duties. And paragraph 49 of the Joint Report was wide-ranging:

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. … In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

Both sides have defined a hard border to mean no physical infrastructure. I read this to mean UK, and not only Northern Ireland, alignment. And there are fundamental problems with a full economic border between Northern Ireland and Great Britain.

Border economics

Obviously, the economics don’t explain why borders in these islands are so contentious. But Northern Ireland stands to lose more than most of the UK from Brexit. So we should scrutinise claims about the economics of the Border.

Northern Ireland’s exports are more EU-focused, and dramatically more Irish-focused, than Great Britain’s. 35% of its exports go to Ireland alone. But ‘exports’ don’t cover trade within the UK — and 59% of Northern Ireland’s external sales go to Great Britain.

Data: Northern Ireland Statistics and Research Agency

That holds across the vast majority of sectors. For instance, 61% of Northern Ireland’s external sales are of manufactured goods, and mainly go to Great Britain.

Data: Northern Ireland Statistics and Research Agency

Some reply that a sea or air crossing is inherently more onerous than a land one and so can better accommodate checks. This carries some weight. But economically, it’s hard to argue it makes up for the impact on nearly four times the sales. ‘You’ve got to cross water anyway’ doesn’t work for UK manufacturing trade with Germany. It can’t logically work for trade between Great Britain and Northern Ireland either.

There are some exceptions. No one sensible should break up the all-Ireland single electricity market or have different rail gauges on the island. But absent very compelling evidence, the economics of an regulatory and customs border in the Irish Sea don’t stack up.

The Belfast Agreement and the Border

More fundamentally, unionists’ case rests on the Belfast Agreement’s principle of consent. Many have argued that principle requires special status if a choice must be made. They claim border checks should reflect Northern Ireland’s Remain vote.

It’s superficially plausible, but I think it falls on reading the Agreement. The parties agreed to ‘recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland’.

Brexit makes it harder for nationalists to accommodate themselves to the UK. That’s one reason voting Leave was such a mistake. But the principle of consent clearly relates to the choice between the Union and a united Ireland. It cannot be cited in and of itself to argue for particular relationships with the EU.

Special arrangements for Northern Ireland don’t breach the principle of consent in a literal sense. And all sides accept Northern Ireland is unique. Other parts of the UK do not have the right to join another state guaranteed by international treaty. And the world’s most lopsided liberal democracy can hardly insist on total internal symmetry.

But there is a principled difference between more autonomy for Northern Ireland and differentiation aligning it with another state. That’s particularly true when Northern Ireland has no direct say in the arrangement. Being in the UK entails more than MPs at Westminster. Beyond a certain point, the spirit of the principle of consent must be given its due. I believe an state-like economic and regulatory border within the UK passes that point.

Precedents exist for excluding parts of the EU from its customs union, and indeed for excluding parts of EU member states from the EU itself. But Northern Ireland is neither small and uncontested nor distant and geographically isolated. It is reasonable and just for unionists to expect to remain meaningfully integrated into the economy of their state.

The Border is deeply sensitive for nationalists — London’s insensitivity on that point stands as an indictment. We should avoid forcing a choice on borders if we possibly can. But constitutional status, in spirit and letter, is just as sensitive for unionists. On this, the DUP is quite as firm as it claims. So is the UUP. Liberal unionists such as Sylvia Hermon expect alignment to be UK-wide.

The EU27 side is making a fundamental mistake if it thinks the Agreement means an unmarked border with Ireland trumps avoiding an economic border with Great Britain. Strand Two of the Agreement does indeed provide for a North-South dimension. But it’s carefully defined, far more so than in the Sunningdale Agreement which preceded it.

In fact, it’s crucially important and insufficiently understood that the Belfast Agreement is far clearer on constitutional status than Sunningdale. There are reasons for that. It is quite as dangerous to ignore unionists’ concerns on status as to dismiss nationalists’ fears about borders.

Consistency cuts both ways

On Brexit, I normally criticise our government for wishful thinking, denialism and contradictory commitments. And there’s plenty of fault to lay at London’s door. Casually dismissing the Border problem, blithely assuming Dublin would give ground and pretending technology could fix a fundamental policy problem stand testament to that. But the EU27 side’s position on the Border has contradictions too.

Paragraph 50 of the Joint Report is crucial:

In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

Barnier has said that how the UK delivers on paragraph 50 is a purely UK affair. That’s rather disingenuous. The EU has rightly pushed back on UK hints about turning a blind eye or exempting most businesses from customs controls — they’d create a smugglers’ paradise and break WTO law to boot. By the same token, the UK can’t turn a blind eye either.

So London can’t unilaterally prevent any barriers within the UK and deliver on paragraph 49. The EU and UK would have to extend arrangements to prevent barriers on the island of Ireland to Great Britain to do that. And having signed up to paragraph 50, the EU should surely allow it to be deliverable.

So the EU has a choice too, not just the UK. It’s currently saying something along Canadian lines (or perhaps a bit more like the now-abortive TTIP) is the only realistic option for Great Britain. Combined with the draft protocol, that clearly means an economic border in the Irish Sea — and a fallback option which doesn’t really deliver on the Joint Report.

Compromise works both ways

To be clear: I believe the UK Government is far more at fault in the Brexit negotiations than its EU counterparts. It has failed to make the effort to understand its partners — worse, it indulged in self-indulgent nationalist rhetoric at the price of alienating them. It has failed to prepare its people to face the gulf between Vote Leave’s fantasies and Brexit’s reality — May’s speech on Friday was a belated, partial start. And it has spent far too long effectively seeking to gain the economic benefits of the EU without the institutional obligations.

But the EU’s ‘Norway or Canada’ mantra (though it shouldn’t be taken wholly literally) carries its own problems. A balance of rights and obligations is fair and reasonable. A binary approach makes it politically impossible to solve the very question the EU labels a sine qua non. (And of course, ‘Norway’ wouldn’t solve the Border issue anyway.)

If the UK can move further towards realism and away from its needlessly hardline Brexit policy, and if the EU can define avoiding cherrypicking as a balance of rights and obligations and not a binary split, there might be a way to give everyone something. It would probably include something close to the Withdrawal Treaty protocol for the whole UK.

The UK might hope for more input into drawing up regulations, drawing on EEA precedents. It might ask for a little more room for regulatory manoeuvre. It would seek concessions on services, perhaps drawing on Ukraine in both cases. The EU could demand a substantial financial contribution. It could also expect a liberal and preferential UK migration policy short of free movement. And London would need to accept regulatory alignment as binding. (Kevin O’Rourke and Sam Lowe and John Springford have put forward very similar options.)

The UK could then say it had reduced economic disruption while curbing EEA movement; the EU would be able to say there was a real price for leaving; the UK and Ireland could remain borderless. From Great Britain’s perspective, I’ve tended to see an EEA-ish Brexit as the least-worst option, especially for services. However, Northern Ireland’s greater reliance on manufacturing and links with Ireland make it different. And given the stakes, I’d be willing to put Northern Ireland first.

I accept this is asking a lot of the EU. But I hope the EU might consider its origins as a peace project for our continent. And so I’d argue it, too, should prioritise protecting the peace project on these islands.

This post was originally published on Medium.com on 4 March 2018.

Northern Ireland at Westminster: confidence, supply and the principle of consent

Northern Ireland’s MPs rarely play a big role in Commons arithmetic. With only 18 out of 650 seats, they’re rarely decisive in the United Kingdom’s elections. Furthermore, none of the UK-wide parties win seats there.

So we’re not very used to Northern Ireland’s politicians having much say in the government of the UK. The current maths shocked us all. And as a Labour member, I clearly hold no brief for a Conservative confidence and supply deal with the Democratic Unionist Party. But the way the legitimacy, as opposed to the wisdom and policy content, of such a deal has been attacked has often been problematic at best. And at worst it’s ignored Northern Ireland’s right to a say in the UK altogether.

Who are the DUP anyway?

Much commentary on the DUP has been rooted in an ignorance of their nature. DUP politicians are indeed socially conservative in a way those in Great Britain rarely are these days. Greater scrutiny of that conservatism would be thoroughly justified. They show no sign of trying to export those norms to Great Britain — they will probably mainly want more money for Northern Ireland. But it would be a thoroughly good thing if we heard more about the impact of DUP attitudes on women and LGBT people in Northern Ireland. It is striking that Westminster never tried to equalise its abortion laws with Great Britain’s through all the years of direct rule. (We should also note this isn’t just the DUP’s prerogative in Northern Ireland. Our own sister party, the SDLP, is just as opposed.)

There are valid points to make about the history of several DUP politicians. The rhetoric and behaviour of the late Ian Paisley deserved excoriation — though in the end he formed a joint Executive, which we should remember too. It’s fair to say that it did at times display a worrying level of equivocation over loyalist terrorism. Recently, the RHI scandal and Arlene Foster’s stubbornness speak ill of DUP attitudes to good governance.

But conflating the DUP’s periodic failure to keep its nose clean with the role of the IRA mistakes the case. Conflating deeply conservative religiosity with having been inextricably bound up with terrorism won’t get you very far in understanding Northern Ireland. And DUP flirtations with Ulster Resistance were very different from the IRA’s responsibility for nearly half of deaths during the Troubles and its inherent connection with Sinn Féin. I’m not saying there aren’t a great many charges to lay at the DUP’s door over many years. But I am saying it’s a different set of arguments. The DUP is not the PUP.

Confidence, supply and the peace process

It is wholly fair to worry about the impact on the impartiality of the UK Government, perceived or actual, in the Northern Ireland peace process. The key part of the Good Friday Agreement cited here reads as follows:

The two Governments:

… affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions …

It doesn’t constrain government formation in either the United Kingdom or a united Ireland. (Imagine the reaction were a united Ireland banned from giving Sinn Féin a role in government in Dublin and you’ll see why not.)

But it would be wholly unacceptable for the UK Government to be parti pris on either side in the peace process. A full coalition, with collective responsibility across government policy including the Northern Ireland Office, currently would make the UK Government’s position impossible in practice. But that’s not on the cards. A full coalition would serve neither the DUP’s interest nor the Conservatives’. The DUP wouldn’t want that level of responsibility; the Conservatives will have to reach beyond the DUP to make this House of Commons function anyway.

The main issue, from a Tory point of view, is guaranteed support for its Budgets — supply. And with a confidence and supply deal, there is no need for matters relating to the NIO to be included. It is completely fair to be worried about the quality of those assurances and to scrutinise the substance of a confidence and supply deal. Obviously, there would need to be assurances about impartiality, which the Irish Government states it has been given. And as the SDLP’s leader has very sensibly said, “We have to judge it on its merits and see what the deal looks like.”

A confidence and supply deal may well be a bad idea. It may very well be politically unwise. But it’s not constitutionally or politically illegitimate in and of itself, any more than it was when Labour toyed with similar deals in 2010.

The principle of consent

Above all, too many in Great Britain have seemed hostile to the very notion that Northern Ireland’s MPs might affect the balance of power at Westminster. It feels a bit like the concerns in the 1950s that integrating Malta into the UK might allow its MPs to do the same in close elections. But unlike Malta, Northern Ireland already forms part of the UK. Its MPs have every right to a say in its governance, as do MPs from England, Scotland and Wales.

This is a basic principle of fair treatment of the UK’s constituent countries. It also goes to the heart of the principle of consent in the Good Friday Agreement. That Agreement recognises that Northern Ireland’s membership of the UK is based on the will of its people and can only be changed by that same will. Membership of the UK confers certain rights, including a voice in the House of Commons. If you don’t grant the region the right to its say in excepted and reserved matters and its voice in Parliament — and if your view is essentially that it can only have that voice so long as it never decides anything, you’re only granting that right in the narrowest possible way, if at all — you’ve got a pretty shallow understanding of the principle of consent.

It’s natural that, say, Sinn Féin’s leadership would argue Northern Ireland politicians should have no role in helping form a UK Government. They’re an abstentionist party and they seek a united Ireland. And of course they have every right to that position. If Northern Ireland and the Republic ever wish to form a united Ireland, the UK should give effect to it without demur.

But in the meantime, there’s no need for the rest of us to take a very specific view of legitimacy at face value. Northern Ireland’s rights within the UK extend further than simply not expelling it from the body politic. Whatever you think of the DUP, we should all remember that.

This post was originally published on Medium.com on 20 June 2017.

1707 and 1973: Scotland, the UK and Brexit

When a 62% Remain vote in Scotland met a 52% Leave vote across the UK, the Union of 1707 looked shaky to many. Nicola Sturgeon promptly said a second independence referendum was highly likely. Support for Yes spiked briefly in the polls. Frankly, as a half-Scottish European, I was momentarily tempted myself – despite being a fervent Unionist in 2014.

Since then, somewhat to my surprise, support for Yes now looks pretty similar to 2014. This has, so far, held even as it’s become clear Theresa May takes a hardline view of the Brexit vote. No doubt as a result, Sturgeon – who has no desire to lose a second referendum and really bury the issue – has tried to keep her options open. Her stated position is that her priority for now is to keep the whole UK within the single market. This would be the best possible Brexit outcome for Scotland and for the rest of the Union.

However, she has also spent plenty of time arguing Scotland could stay in the single market even while the rest of the UK left. Clearly, this ‘differentiated solution’ has a distinct political edge: Sturgeon has an interest in the UK being seen not to meet Scotland’s wishes. Still, the UK was always asymmetrical, and voters in Scotland voted decisively to remain. It is also fair to say Sturgeon has softened her position quite a bit from demanding Scottish EU membership post-Brexit. So taking it at face value, what would the differentiated solution entail?

The ‘differentiated solution’: Liechtenstein-in-Europe

The Scottish Government’s paper Scotland’s Place in Europe suggests Scotland could stay in both the EEA and the UK customs union. The document cites the principle of ‘parallel marketability’. This is the model Liechtenstein uses vis-à-vis Switzerland, while participating in the EEA. Because Liechtenstein has a customs union with Switzerland, it has to adopt Swiss technical standards and regulation in a wide range of areas. But the EEA also requires Liechtenstein to adopt its technical standards and regulation.

As a result, EEA and relevant Swiss law are now simultaneously applicable in Liechtenstein. Liechtenstein agreed this with Switzerland, and the EEA also agreed to accept the arrangement. Products meeting either Swiss or EEA standards can be sold in Liechtenstein, but EEA law trumps Swiss when dealing with the rest of the EEA. Liechenstein also had to create a Market Control and Surveillance Mechanism, so neither EEA nor Swiss rules were broken outside the principality.

The Swiss Federal Customs Administration collects duties on goods entering the whole customs area. It informs Liechtenstein’s Office for the National Economy when goods are destined for Liechtenstein. Where customs tariffs are different (some EEA goods attract tariffs in Switzerland, but not Liechtenstein), duties are reimbursed. Importers are informed of their obligations, including proofs of sales in Liechtenstein.

Why it wouldn’t work for Scotland

For Scotland, this presumably means HM Revenue and Customs would continue to collect duties for the whole UK. It would then inform a Scottish public body where requirements differed and when goods were destined for Scotland. By analogy with HMRC, the Scottish body might be a beefed-up Revenue Scotland.

The UK would also have to devolve much of employment, commercial and competition law, so Scotland could implement EEA law. Alternatively, the UK might confer a general power to implement EEA rules on Holyrood. But that could cause chaos in UK-wide law.

Where the UK’s rules didn’t mirror the EEA’s, new non-tariff barriers would arise, which poses a major problem. 64% of Scotland’s exports (excluding oil and gas) go to the rest of the UK, compared to 15% going to the rest of the EU. Even ignoring the fact that much of the oil and gas also goes to the rest of the UK, it is clear who Scotland’s main trading partner is. The Scottish Government would say the model keeps UK goods standards for UK trade. But Scotland is mainly a service-based economy. In fact, Scotland trades more in services with the rest of the UK than it does in goods. The position is reversed in trade with the rest of the EU.

So given that, what happens as UK and EEA employment law start to diverge? What about financial services regulation, especially when UK financial services are so intertwined? What if EEA competition law is tougher than the UK variety – what does that mean for a UK-wide company operating in Scotland?

The problem gets worse when you remember this is Sturgeon’s proposal in the event of a hard Brexit. The further the rest of the UK pulls away from the EU, the more acute the problem becomes. In Liechtenstein’s case, Switzerland adopts most of the acquis communautaire for goods anyway, which softens the dilemma. The UK may well copy a lot of EU regulation anyway, as it discovers the irritations of diverging from its main trading partner. But to the extent that it doesn’t, Scotland will pay a price.

Above all, Liechtenstein is a small and sovereign state. Legally, presumably the UK would need to join the EEA and then restrict its territorial application to Scotland. Scotland would then need powers to take part in the EEA Joint Committee and the EEA Council, appoint a judge to the EFTA Court, select a member of the EFTA Surveillance Authority College and so on. Spanish domestic politics on their own make it clear this won’t happen. But even if the politics could be resolved, the cases are fundamentally different. Liechtenstein has about 37,000 inhabitants. It is tiny, and therefore allowed to be anomalous. Scotland, on the other hand, would have the largest EFTA population in the EEA. It would also be far more closely bound to the rest of the UK than Liechtenstein ever was to Switzerland.

Liechtenstein’s single market model is not workable for Scotland, any more than its migration quotas set a precedent for the UK. Pursuing it undermines the overriding need for a sensible UK-wide deal.

On Brexit, powers reserved should be powers shared

With the potential and partial, but crucial, exception of Northern Ireland, the form of Brexit mostly needs to be settled UK-wide. But that doesn’t mean Scotland’s (or Northern Ireland’s) distinctive views should be ignored. The UK-wide settlement needs to be a compromise befitting a narrow vote and a territorial split.

In many ways, Scotland, Wales and Northern Ireland have federal relationships with the UK. Each has a legislature of its own as well as the UK Parliament. Powers reserved to the UK Parliament are specified in law. The courts can decide if devolved legislation exceeds devolved powers. Devolved powers aren’t meant to be changed unilaterally, though what that means is obviously disputed.

One key difference with federalism is the lack of formal protection for devolution. Unless Section 28(8) of the Scotland Act 1998 is read very radically indeed, no court would actually stop the UK Parliament legislating over devolved legislatures’ heads. But another is the lack of a mature federal political culture. Federalism usually involves shared rule as well as self-rule – an idea that a state’s nations or regions have a say in government at the centre. In a state large or diverse for federalism, central government has to govern with the territorial dimension in mind.

This is why many federations have indirectly elected second chambers. It’s why federations usually require some or all constituent territories to agree some or all constitutional changes. Modern federalism requires governments to work together. But at the moment, we ‘deal’ with problems between the UK’s nations by ignoring them or offering more powers. With Brexit, working out where to handle powers no longer exercised at EU level will matter a great deal. One of the many arguments for the EEA is that it reduces the need to create a framework for a UK single market which neither undermines devolved powers nor means more non-tariff barriers within the UK.

If the SNP wants to serve Scotland’s interests, however, it needs to recognise the UK can’t just devolve itself out of this problem. Scottish Labour, meanwhile, should push hard for UK Labour to back staying in the single market. But in some ways, it’s the Scottish Conservatives who bear the biggest responsibility.

After the referendum, Ruth Davidson said she’d prefer to stay in the single market post-Brexit. She has built her success on being an uncompromising voice for the Union of 1707. No one will ask her to row back on that. But Scottish unionism shouldn’t just be about keeping Scotland in the UK, but helping Scotland shape the UK. The Scottish Conservatives have political capital. Ruth Davidson is highly respected by her UK party. She has shown Tories can make headway in Scotland. She should use it to make Brexit respect Scotland’s interests, and work better for the whole UK.

What happens otherwise?

Some of the Tory right will say Scotland wouldn’t really leave over Brexit, hard or soft. Well, it might or it might not. Brexit complicates and sharpens the choice for Scotland, and the harder the Brexit the truer that will be. Scots would need to be prepared for a decades-long, probably very painful reorientation. It would be a far more radical form of independence than Alex Salmond proffered in 2014.

But wise unionists should want to reduce Scottish discomfort within the UK, not foment it. They should also beware of assuming Scotland would never jump. A Scotland where 45% voted to leave the Union is not one where the Union is secure. It is one in which the Union has much to prove. If Theresa May really cares for its ‘precious, precious bond’, she would do well to bear that in mind.