by Frank Schnittger
Thu Oct 27th, 2016 at 11:43:42 AM EST
Discussion of Brexit has been almost exclusively based on the proposition that the UK will exit en bloc, and that the only possible exceptions to this are if Scotland were to vote for Independence, or N. Ireland were to vote to join a united Ireland. But there are some precedents for more nuanced solutions to the fact that both Scotland and N. Ireland voted Remain. For instance, Greenland and the Faroe Islands remain part of the Kingdom of Denmark but with substantially independent political institutions, and neither are part of the EU.
The Faroe Islands secured an opt-out when Denmark joined the EU in 1973 (the same time as the UK and Ireland) and Greenland voted to leave the EU in 1985. In both cases the decision was based on their desire to retain independent control of fish stocks in their territorial waters. The UK already issues distinctive passports for residents of the Isle of Man and the Channel Islands, and Jersey is neither a Member State nor an Associate Member of the European Union.
Jersey and the EU
Jersey is part of the European Union Customs Union of the European Community. The common customs tariff, levies and other agricultural import measures apply to trade between the island and non-Member States. There is free movement of goods and trade between the island and Member States. EU rules on freedom of movement for workers do not apply in Jersey.
So what if England and Wales exited the EU, but Scotland and N. Ireland remained? Both are substantially self-governing and have economic interests distinct from the rest of the UK. Their First Ministers have demanded a central role in the negotiation process and even Welsh first minister Carwyn Jones departed from Theresa May's "hard Brexit" position by insisting Wales wanted to retain full access to the European single market. Remaining part of both the UK and the EU would go some way towards appeasing both the Independence and Unionist voters in Scotland, whilst allaying Spanish fears of setting a precedent for Catalonian independence.
So what are the implications of Scotland and Northern Ireland remaining within the EU while England pursues a hard brexit strategy? Firstly the Scotland England border would become a hard border with customs and immigration controls for non UK nationals. The N. Ireland England customs and immigrations controls could, more conveniently, be located at sea and air ports. The republic of Ireland could undertake to represent N. Ireland interests within the various institutions of the EU and N. Ireland would retain its three seats in the European Parliament. Northern Ireland would remain a largely self-governing part of the UK thus putting to rest Unionists fears of a southern Irish take-over, and southern Irish fears of having to subvent the N. Ireland administration to the tune of c. £11 Billion p.a.
But who, besides its six members of the European parliament, would represent Scottish interests in the other institutions of the EU? Effectively Scotland would become a sort of associate member, bound by EU regulations, but with little say on their implementation. Some have suggested that Ireland and Scotland could form some sort of "Celtic Union" whereby their interests could be jointly represented at EU level, but this seems unworkable. Scotland is either part of the UK, or it is not. Ireland could act as "a good neighbour" for Scotland, representing its interests where possible, but without independent representation on the Commission, anti-EU sentiment in Scotland might grow.
All in all, allowing N. Ireland and Scotland to remain within both the UK and the EU seems an interim solution at best, putting off more difficult decisions on Scottish Independence and Irish re-unification to another day. But there is nothing wrong with that. Procrastination in politics is an art form designed to forestall more immediate conflict on difficult issues, with a view to new solutions becoming more acceptable with the march of time. There is no reason why Scotland couldn't be an associate member of the EU more or less indefinitely, unless at some stage in the future, it decided to go for full independence and membership of the EU. The point is that full independence now need not be a pre-requisite for continued membership of the EU for all practical purposes.
For N. Ireland, the advantages are more obvious. No need for a hard border on a 500km land border even 10,000 British troops couldn't secure during the Troubles. Less risk of an upsurge in nationalist alienation from the Northern Ireland state that a hard border and increasing divergence from the south would engender. Devolved political institutions in N. Ireland could remain more or less as they are now. People could retain their UK citizenship and identity and only matters pertaining to the EU would be transferred from London to Dublin, perhaps with additional safeguards to ensure that N. Ireland interests are adequately protected - such as through a joint Dail and N. Ireland assembly committee on EU affairs.
The problem with the analogies given above is that they are examples of non sovereign but self-governing territories opting out of the EU, whereas Scotland and N. Ireland would be opting to remain in. However the UK leaving the EU is also a unique and unprecedented situation, and so perhaps a bit of innovation is required to come up with an optimal solution for all concerned. Theresa May's dream of achieving a common negotiating position for all of the UK seems a pious hope at best. The reality is likely to be more nuanced.
Having touted the will of the people as expressed in the Referendum, May is not in a good position to ignore the referendum results in Scotland and N. Ireland especially as there are precedents for the results of referenda in those territories being considered legally binding in their own right. You cannot say the Scottish referendum on Independence was legally binding, and then ignore the Scottish referendum result on Brexit. The Good Friday agreement - an international Treaty lodged with the UN - enshrines the right of the people of N. Ireland to determine their own constitutional status by way of referendum. Well, they spoke on Brexit. It wasn't a vote for a United Ireland, but it was a vote to remain within the EU.