The Guest Blog

Guest blog post by Cian McCarthy, The Fletcher School of Law and Diplmacy, Tufts University.

The Irish Government have an important strategic decision to make. Before the negotiations over the future relationship agreement between the UK and the EU begin, they need to decide what sort of deal they should encourage the EU to seek. Do they push for soft Brexit, in which the UK would stay very close to the EU, like Norway is now? Or would a hard Brexit, with maybe just a standard free-trade agreement, be better for Ireland? Because of the country’s strong trading ties with the UK, as well as the fragility of peace in Northern Ireland, it would seem that the closer the UK stays to the EU, the better the outcome for Ireland.

However, going for a soft Brexit is a dangerous strategy. Even if the negotiation teams can manage to create a deal that maintains the free flow of goods and people between the UK and the EU, such a deal would need to be ratified by the twenty-eight national parliaments of the EU and the UK. If just one parliament were to vote down the deal, this would be the nightmare outcome for Ireland; there would be no agreement on the future relationship of the EU and the UK. This would mean no free-trade between the UK and Ireland, and a hard border would resurrected on the island of Ireland, with restrictions on the movement of people. The Irish Government’s focus should be on getting the sure deal, rather than the dream deal.

Ratification of a soft Brexit would be a tough sell on both sides. It would belie most of the core reasons for the UK to leave the EU in the first place. The UK would still not be able to control migration from the EU; it would still be bound by EU regulations and standards, which it would no longer have the power to influence; and payments to the EU would continue (as an EU member, the UK has paid €139 per person the the EU, whereas Norway, while not a member, still sends the EU €107 per person to be part of the Single Market). Such a deal would be seen as a betrayal to the British people who might reject it for that reason, and even if approved it would leave the UK with less power but similar obligations.

This arrangement would also be risky on the EU side. Many countries, especially those without much exposure to the UK market for exports, are concerned that a soft approach to Brexit would encourage other members to seek a similar arrangement, which could undermine and unravel the European Union. Pro-European governments will want to show anti-EU parties in their countries that euroscepticism is a dead-end.

By contrast, a hard Brexit deal may be more palatable for all sides. The British government can regain control over migration, product standards and regulations. If they were to leave the EU Single Market, they could still make a free-trade agreement with the EU, and they would also be able to make similar agreements with third-party countries. There would also be no financial obligations to the EU in this case. It would be an easier sell to the British public.

For EU governments, although it still may cause problems, a hard Brexit would be easier to ratify than a soft Brexit deal. As this deal will be framed as a hard Brexit by both sides, any government wishing to fight again euroscepticism will be satisfied with a deal that seemingly leaves the UK worse off than it was as a full EU member state. Even the more isolationist and nationalistic governments would also prefer this over a soft Brexit, as it leaves the UK further away from the EU.

Crucially for Ireland, a hard Brexit deal is still a deal. If a free-trade agreement can be made, the economic pain would be greatly alleviated. More importantly, both sides have acknowledged the special status of Northern Ireland within these negotiations, and the political will is there to find a creative way to preserve the Good Friday Agreement and the Common Travel Area.

At least within a hard Brexit deal there will be the possibility of working in a special arrangement for Northern Ireland, even if it that will require a lot of legal and political innovation. In the no-deal scenario, there would be no legal instrument that could allow for the Common Travel Area to survive. Peace in Northern Ireland would be jeopardised and trade with the UK seriously disrupted. The primary goal of the Irish Government should be to avoid this outcome.

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