There is a tension, if not a contradiction, in the commitments on Northern Ireland made by the UK in the recent joint report from Brexit negotiators. How might the UK leave the European custom union and internal market, as remains a distinct possibility, while meeting its two most salient commitments in the December document?
Those commitments are: first, no matter what form Brexit takes to preserve “full alignment” in Northern Ireland with the relevant rules of the custom union and market, thereby avoiding a hard border; and, second, to introduce “no new regulatory barriers” between Northern Ireland and Britain.
But there is at least one possible way in which the UK might honour its commitments, even if it leaves the custom union and internal market, even if there is a hard Brexit. This involves a shared-space arrangement of a kind that was mooted by a number of commentators, myself included, earlier last year.
The shared-space proposal has three elements.
The first is that, as in the status quo, the movement of goods and people between North and South would be unimpeded so that the Border would remain invisible.
The second element is that, as in any departure from the status quo, the movement of goods and people between Northern Ireland and Britain, and between the Republic and the European Union, would also be unimpeded.
The third element would introduce some impediments – some entry and exit rules – as is inevitable if Britain and the EU were to constitute two distinct trading blocs. But it would keep those impediments to a minimum.
No restrictions
The shared-space proposal would involve no restrictions on goods and people as they enter Ireland, North or South, from either Britain or the European Union. But as people enter with passports or other documents indicating their origin, so goods that enter, whether they be commodities or services, would carry electronic trackers.
The only entry restrictions required would be on goods and people entering from elsewhere. Northern Ireland would impose the same restrictions as Britain, the Republic the same restrictions as the European Union, and, again, goods would carry trackers as people would carry passports.
The main impediments would involve exit as distinct from entry checks. All people and goods exiting South or North would have to be subject to checks. But of, course, checks would not lead to any restrictions in movement between Northern Ireland and Britain or between the Republic and the European Union.
Restrictions would apply at most to the movement of goods and people from Northern Ireland to other parts of the European Union, and from the Republic to Britain. In each case the people would be identified by passports, the goods by trackers, and restrictions would be determined on that basis.
Trackers
Could passport-like trackers serve the role envisaged?
Yes, in the way barcodes and the like can serve a tracking role. Such measures are already required to solve the problem with commodities and services that are traded in the EU but sourced in part elsewhere, a problem that would remain under the shared-space solution.
Might the arrangement create opportunities for the smuggling of goods or people? This would happen in some measure. But it would be as nothing in comparison with the smuggling possible with a restored Border.
An acceptable deal?
The shared-space solution would not do as well as a soft Brexit for Ireland, but, economically, it would offer a least-bad option in the event of a hard Brexit. It would make the Border unnecessary, and give Ireland the best of both worlds insofar as it allowed each part of the country to import without restriction from Britain or the EU.
Would the solution be politically acceptable?
Outside the island it would require an acknowledgement by the European Union and Britain that ours is a special case requiring special concessions. But such concessions need not prove objectionable on either side in view of the terms of the Belfast Agreement, reaffirmed by both sides in December.
Checks
Would the solution be acceptable within Ireland, North and South?
It would be unappealing to the extent that it introduced checks, although no restrictions – “no new regulatory barriers” – on people and goods leaving Northern Ireland for Britain, and leaving the Republic for the rest of the European Union.
While the imposition of checks on goods might grate on producers and retailers, it would surely be acceptable as the price to be paid for avoiding a restored Border.
But would checks on people be politically acceptable?
No one in the Republic is likely to object given the State is not part of the Schengen agreement. But what about those in Northern Ireland who, like the Democratic Unionist Party, might balk at facing checks on travelling to Britain?
We can only hope that the economic benefits of a shared-space arrangement would help to compensate in their minds for the symbolic cost of passport checks. It is certainly possible that it might.
And politics, after all, is the art of the possible.
Philip Pettit is a LS Rockefeller University professor of politics and human values at Princeton University