Alan Shatter: Difficulties of Brexit for Ireland can't be underestimated

We now know that the British government will trigger its article 50 notification of its intention to exit the EU before the end of March.

It is assumed that because the article envisages a two-year timeframe for exit that Brexit will occur in the first quarter of 2019 in advance of the European Parliamentary elections that year.

This is not necessarily so, as if the arrangements for Brexit are not agreed, it is open to the member states under article 50 by unanimous agreement to extend the two-year period.

The complexities involved in Britain’s exit together with the British government’s and the Brexiteers’ complete lack of advance planning may make the need to consider such extension inevitable.

On the other hand, the scheduled European elections, the desire of the remaining EU 27 when appointing a new European Commission to leave Britain out of the mix and the objective of preventing political paralysis in EU decision-making should incentivise progress.

Theresa May, in my experience, was an unenthusiastic participant in council meetings of EU justice and home affairs ministers. She is one of those who, while nominally for Remain, helped lay the foundations for Brexit and the English electorate's anti-immigrant paranoia.

To date, her only substantive insight into the course her government and the UK is embarked on is: “Brexit means Brexit”. This threadbare but politically astute circuitous construct ensured a period of relative calm following her becoming prime minister within the Conservative party prior to this week’s Tory conference while creating the illusion that there is a plan, when none to date exists. It sheds no light on the road ahead ,on what Brexit will look like and political turbulence is likely.

Publicly, the British prime minister has delegated responsibility for preparing the Brexit plan to her three cabinet Brexiteers, Boris Johnson, Liam Fox and David Davis and from an Irish perspective somewhere in the undergrowth, there is the Northern Ireland Secretary of State, James Brokenshire. But it is unclear what input he will have to Britain's proposed approach.

The only plus on the horizon is that he could not have less insight into the complexities of Brexit for the island of Ireland, the maintenance of peace and security and economic development than had his predecessor, Theresa Villiers. On occasions when I discussed with her the dangers of the Tories adopting Ukip's political roadmap I had little sense that she had any real insight into what it all meant for Northern Ireland.

Little scope for optimism

The speech last week of Liam Fox, Britain’s secretary for trade and arch Eurosceptic gives little scope for optimism that there is any real understanding of the difficulties ahead.

His talk of even freer free trade to result from Brexit and the belief that Britain will ultimately be able to freely trade with the EU while preventing EU nationals residing in Britain is utterly lacking in reality and any basic understanding of the fundamental principles upon which the European Community, now the European Union, was established.

The free movement of goods, services, capital and people is a core principle and the three Brexiteers and May are delusional if they believe Britain will be enabled to fully benefit from the first three to the total exclusion of the latter.

Irish perspective

From an Irish perspective the complexity of the difficulties ahead cannot be overestimated. It would be an enormous mistake to believe it will be all right on the night.

A hard Brexit excluding freedom of movement of people could render it impossible to maintain such freedom of movement on our island and between Ireland and Britain.

As a member of the EU, our country will continue to keep our borders open to all EU nationals.

An open border between the Republic and Northern Ireland would undermine any British government policy to prevent EU citizens in the future simply establishing residence, while imposing passport travel obligations on everyone travelling from Northern Ireland to Britain would undermine the union.

Imposing them on travel between the Republic and the UK would end the Common Travel Area that we have maintained between our two islands and the Republic and Northern Ireland for decades.

If, immediately following Brexit, free trade is not agreed between Britain and the EU, border controls will be required not just to check people travelling but to ensure compliance with trade tariff rules.

The full implications of all of this for politics North and South and for policing the Border have not yet been fully considered.

May has asserted that post-Brexit she envisages continued co-operation between Britain and the EU in fighting crime and international terrorism. That is as it should be but the road ahead will not be smooth if following Brexit laws currently harmonised diverge.

A great repeal Act is to come before the Westminster Parliament preserving existing EU law as part of British (and presumably Northern Irish) law following Brexit while enabling such laws to be amended, revoked or replaced by domestic British law.

As a result, in the immediate aftermath of Brexit important provisions will remain operative, such as the European Arrest Warrant which facilitates the speedy transfer of those charged with serious criminal offences, including terrorist offences, from the Republic to Northern Ireland, England, Wales or Scotland and vice versa.

It seems we may not need to dust off and revisit the complexities of past extradition arrangements between our two islands. However, the European Court will no longer play a role in ensuring the proper application by Britain of EU laws it continues to operate and as time passes complications could arise as a consequence of the approach of Britain’s Supreme Court diverging from that of the European Court.

Future complications

The announced approach to be taken in the great repeal Act should also for the time being at least ensure the vast body of EU co-ordinated family law arrangements that currently benefit families on our two islands, such as laws on the recognition of divorces, the enforcement of maintenance support orders, the enforcement of child custody orders and addressing child abduction will continue in force.

It seems that worries these could be jettisoned with Brexit are groundless. It, however, also remains unclear what future complications could arise after the European Court ceases to be the final juridical arbiter as to Britain’s proper application and interpretation of such laws.

Brexit is going to have profound implications on the island of Ireland. In the coming months many of Brexit’s unanticipated and unintended consequences are going to become visible.

It is not beyond possibility that in years to come the Brexit referendum will be marked by history as the event that acted as the catalyst for the break up of the UK.

The government should publish its thinking on the road ahead and how it proposes at EU level to assist shaping it to the benefit of all who live on our island.

This should feed into constructive public discussion and debate. There is no monopoly of wisdom on how the EU and the Republic, as one of the EU 27, should proceed in the politically unprecedented circumstances resulting from our neighbour’s Brexit referendum.

It should not all be kept behind closed doors. Democratic engagement is required if Brexit and any post-Brexit deal with Britain is to have democratic legitimacy. Whether any such deal is required to be or should in this State be the subject of a referendum is among the issues to consider. Alan Shatter is a former Minister for Justice, Equality & Defence. During Ireland's presidency of the EU in 2013 he chaired council meetings of EU justice and home affairs ministers and meetings of EU defence ministers and participated in such meetings for more than three years