The UK’s Brexit Proposals on the Irish Border: No more than a Negotiation Tactic


The UK has finally published its negotiating position on the Irish border. The 30 page long document is, unsurprisingly, high on lofty principle but low on concrete detail. I do not wish to go through the proposals step by step as I don’t think there is need to. Others have done a much better job than I could have. In particular, I don’t want to dwell on the importance of free movement of people between the North and South of Ireland, or the importance for residents of the North to identify solely as Irish if they wish. I could not do justice to these fundamental points here.  Rather, I want to make 2 broad points.

  1. Paragraph 33 and Usurping Ireland’s Negotiating Strength

From my reading of the document, the key sentence is contained at paragraph 33:

“Wider questions about the UK’s future operation of its whole border and immigration controls for EEA nationals (other than Irish nationals) can only be addressed as part of the future relationship between the UK and the EU, and further highlights the need to move to this next phase of negotiations as quickly as possible.”

In April 2017, outgoing Taoiseach Enda Kenny heralded as a great victory the inclusion of the status of the Irish border as one of the four key issues to be decided in the Brexit negotiations prior to negotiations commencing on the UK’s future relation with the EU. What Paragraph 33 tells is us that the UK is seeking to circumvent this.

The Brexit negotiations consist of 2 strands: Firstly, the terms of divorce between the EU and the UK; and secondly, the terms of the UK’s future relationship with the EU. Since the UK voted to leave the EU, the British Government has made no secret of its desire to expedite negotiations to the second stage. Far from being a comprehensive plan outlining how the future border on the island of Ireland will work, the British Government’s proposals are a negotiating tactic to achieve exactly this.

  1. The UK does not understand the importance of the Customs Union to Ireland

The UK’s proposals essentially envisage a lax, “sure it’ll be grand” attitude to customs between the North and South of Ireland. While this may solve the issue of avoiding any ostensible border controls, what is concerning about the UK’s proposals is that they demonstrate a clear lack of understanding of Ireland’s position and the importance of the customs union.

In very crude terms, for the UK, Brexit is about keeping foreign people out; for the EU and, particularly, Ireland, Brexit is about keeping foreign goods out. Ireland does not have vast natural resources to draw upon. Rather, our key resource is agriculture. “Brand Ireland” (for want of a better, less cringe-worthy term) therefore is all about the quality of the goods produced— think green fields and healthy, happy cows and sheep.

 It is for this reason that Ireland tends to react in a rather disproportionate fashion to any crisis that may undermine this image. Hence, the Irish response to the pork-dioxin crisis in 2008 was to remove all pork products from shelves, regardless of the minimal risk involved. Similarly, the horse-meat scandal of 2013 came to light in Ireland, not because of the particularly acute problem Ireland had with horse-meat but because transparency was considered so important to ‘brand Ireland’. Covering up the issue, it was calculated, would have done more harm than good. By ripping the band-aid off quickly and cleanly, Ireland sought to re-assure other countries that any potential future issues with the quality of the products it produces would be dealt with in a similarly transparent manner. A final example can be seen from how Ireland responded to the Foot and Mouth crisis in 2001, with over 50,000 animals on the Cooley Peninsula in County Louth culled and disinfecting checkpoints set up across the county. I can still remember the hope of my school in Dundalk potentially being closed to prevent further spread but, alas, the other contingency measures were more than sufficient and only 2 cases on the island— one in Meigh in County Armagh and one in Jenkinstown County Louth—were confirmed.

It is only by understanding this context that one can see why the UK’s streamlined border approach will face significant hurdles on the island of Ireland and why Ireland will be reluctant to accept this so-called solution. The Irish border will be a weak link for goods not reaching the EU’s exacting quality standards to enter into the Irish supply chain. It is a weak link that Ireland cannot afford. Thus, while British people may be horrified at the thought of eating chlorine-washed chicken, if such produce (or similar) were to end up in Irish goods, the impact this could have on the economy and Ireland’s reputation could be disastrous, similar to the scenarios mentioned above.

Irish people may have a reputation in the UK of a ‘nudge-nudge, wink wink’ attitude to life, seeking to take shortcuts wherever possible. Fawlty Towers’ Mr O’Reilly springs to mind in this regard. But on this issue of customs, Ireland cannot afford to and the UK does not seem to understand this.


Customs checks on mainland Britain rather than on the island of Ireland or ‘special status’ for Northern Ireland within the EU would solve these issues. Both of these proposals have, however, been rejected by the DUP. We are therefore no closer to a solution to the Irish border and rather than being re-assured, I’m more concerned than ever.

Image credit Duncan Hull:



RightsInfo and Property Rights as Human Rights: A Response


A recent post by Adam Wagner of human rights advocacy group argued that the Conservative Party should get behind the Human Rights Act (HRA).  The article is an express endorsement of a piece in The Times (£) by Daniel Finkelstein, a Conservative peer and associate editor of The Times who calls for Tories to back the HRA because ‘if they don’t, then they risk a Jeremy Corbyn government unchecked by the protection of basic civil and political rights.’ The specific human rights in question are property rights, with Wagner arguing that ‘Private property rights are a central part of human rights protections.’ Wagner focuses on the Grenfell disaster, highlighting Corbyn’s suggestion that private property should be seized in order to re-house the displaced residents of the fated tower-block. A particularly lazy comparison with Venezuela’s Hugo Chavez is also made before the piece ultimately expresses approval with Finkelstein’s conception of human rights as securing individual liberty and as ‘bulwarks against state excesses’.

 It is certainly true that the right to private property is protected by many human rights documents. However, the inclusion of such rights and the philosophy that underpins them have long been subject to sustained critique—namely, a liberalism which evolved from a bourgeois class as a means to protect their new found wealth from the classes below and claim power for themselves from the aristocracies above. This liberalism places great emphasis on individual freedom but often at the expense of equality, ignoring the power structures at play in society that perpetuate these inequalities; power structures that were exposed by the devastation of the Grenfell disaster. By harkening back to an over-emphasis on individual freedom to defend human rights, RightsInfo may do more harm than good to the broader human rights project in the UK.

 Human Rights and Private Property

This link between bourgeois liberalism and human rights has long been highlighted by the left. Bills of rights have, for example, been opposed by many on the left precisely because of their role in protecting private property. These arguments contend that bills of rights such as the HRA stifle movements for popular change— an idea embraced by Wagner in light of the current ‘populist moment’. They re-enforce the status quo by legalising political disputes and put the rights of people in the hands of elitist judges who, by their very nature, are drawn from the wealthier classes and so will be pre-disposed towards the protection of private property.

 A classic example of courts acting as a barrier to progressive change is Roberts v Hopwood [1925] AC 578 where the House of Lords held that the decision of Poplar Borough Council to pay its lowest grade of staff the same rate, regardless of whether they were male or female, was unlawful. In the House of Lords, Lord Atkinson stated that:

 The council would, in my view, fail in their duty if, in administering funds which did not belong to their members alone… allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour.

 Roberts v Hopwood further demonstrates that the HRA is not needed to protect property rights in the UK anyway as the common law that existed before the HRA was an ample barrier to ‘eccentric principles of socialistic philanthropy’ or ‘feminist ambition’. Indeed, some of the worst decisions under the HRA can also be traced back to this deferential judicial respect towards private property and a version of liberalism closely linked to market capitalism. In YL v Birmingham City Council, for example, the majority of the House of Lords held that a private care home under contract with a local authority was not exercising ‘functions of a public nature’ meaning that the care home residents could not avail of the HRA to vindicate their rights against the care home’s operators.

 Despite these political disagreements as to the utility of bills of rights, however, many initial critics of the judicial protection of human rights have subsequently voiced their support for the HRA. Conor Gearty, for example, has lauded the HRA’s role in curbing the excesses of extreme counter-terrorist powers and vindicating the rights of vulnerable individuals.

 Beyond Bourgeois Liberalism

Human rights theory has moved on from this liberal bourgeois foundation to deeper, more coherent normative arguments for rights; for example, the concept of dignity. These arguments reject the classic divide between ‘civil and political’ and socio-economic rights to allow for a more harmonious and consistent vindication of both. Moreover, such arguments are resistant to the more extreme versions of liberalism such as neo-liberalism and libertarianism that take this foundation of individual freedom to the extreme, by labelling any state action or law which an individual does not consent to as ‘aggression’. Such individualism and reliance on the protection of private property have been used as a sledgehammer against the welfare state and workers’ rights in recent decades; all causes that human rights should be fighting against. For example, a search on RightsInfo for “Trade Union Act 2016”— legislation that made radical and profound changes to trade union laws, impacting negatively on workers’ right to strike— returns zero results. Human Rights therefore should be about much more than individual freedom and using human rights as an argument against rehousing Grenfell residents doesn’t reflect this idea of dignity.


By appealing to Conservatives to back human rights in order to protect private property and halt the rise of the left, these arguments risk doing more harm than good. They harken back to a bourgeois justification of rights resulting in a very narrow understanding of what rights are and how rights are vindicated. Moreover, they embrace arguments regarding the role of bills of rights as subjugators of, rather than protectors of the vulnerable. Using Grenfell as a warning of why protections for private property are needed is particularly distasteful in light of the sheer magnitude of the disaster. It also stands out of align with the other work that RightsInfo has done regarding the human rights implications of Grenfell and the inquiry into what happened.

 RightsInfo has done some excellent work in highlighting the role that human rights play for everybody, explaining this in a manner that is innovative, informative and easy to understand. RightsInfo has also mounted an excellent campaign against the cuts to legal aid that have been so damaging to individuals seeking to vindicate their rights.  An key message therefore that RightsInfo stresses is the importance of empowering people through human rights. This message, however, is undermined by highlighting how human rights can be used to thwart change in the name of conservative values like the protection of private property.


Image Credit: ChiralJon



Crushing Saboteurs: Theresa May’s ‘Schmittian’ Gamble


On the eve of the 2015 General Election, The Independent published an article entitled In Defence of Liberal Democracy. Stopping short of giving an express endorsement of the then ruling Conservative-Liberal Democrat coalition, the article, nevertheless gave clear intimations as to the paper’s preferred outcome. In particular, the paper expressed strong fears regarding the rise of nationalism and resultant fragmentation in the Union that it would trigger, particularly from Scottish independence. In order to stop these forces, the article concluded by putting faith in the then coalition Government and, in particular, the Liberal Democrats.

Fast-forward two years and that editorial has not aged well. Aside from predicting an ‘inevitable’ hung parliament in 2015, its concerns regarding the fragmentation of the Union and the rise of nationalism are more prescient than ever. The political party that is undoubtedly responsible for this is the Conservative Party which converted the internal party dispute that was Brexit into a constitutional question. However, when Theresa May tried to exploit this question again to gain a landslide victory in the General Election, it backfired spectacularly. The tone and justification for the election in the early days reveal the underlying thinking of the campaign and, also, why it failed: the attempt at separating friend from enemy and using parliamentary democracy to do so.

Carl Schmitt’s Critique of Liberalism and Parliamentary Democracy

Carl Schmitt was a prominent German constitutional theorist of the Weimar era and into the Nazi Third Reich. Schmitt argued that the social stability necessary to found a state and legal order could only be realised through the creation of an ethnically- homogenous ‘people’ or volk. If the volk was too ‘different’, the disagreements between the different groups in society would erupt, rendering the state unstable and collapsing. Therefore, before a state can be established, a distinction must be drawn between friend and enemy. The state can only consist of friends, with the enemy left outside of the state. It is only in this manner that the stability necessary for establishing a state and legal order can be secured. For Schmitt, this distinction between ‘friend and enemy’ is not one made by or controlled by law. In contrast, it is based upon the irrational decision made by the all-powerful political force: the sovereign. The racist potential of this theory is clear and it should come as no surprise that Schmitt both embraced and was embraced by the Nazi regime that emerged from the ashes of Weimar Germany.

Now, of course, it may be argued that all political discourse can be conceptualised as a manifestation of this friend-enemy distinction. “Us v Them” is often an unavoidable aspect of political discourse. However, Schmitt was at pains to stress that the friend-enemy distinction did not refer to the slings and arrows of every day politics within a state. Rather, it concerned the fundamental distinction necessary to ensure the homogeneity of the volk and in turn, the stability of the state. The friend-enemy distinction therefore referred to the tensions and distinctions between the state and those outside of the state. The intensity that marks the friend-enemy distinction is the potential for war and for Schmitt, war was the ‘existential negation of the enemy’. That stated, Schmitt did admit that internal disagreements within a state could intensify to the point that they would satisfy the friend-enemy distinction. It is for this reason, Schmitt was vehemently against liberalism and parliamentary democracy as for him they were ‘the enemy of enemies’. Schmitt argues that liberalism and parliamentary sovereignty either perpetually postpone the necessary decision to distinguish friend from enemy or couches its own politics in faux claims of neutrality.

Theresa May’s Schmittian General Election

If Mayism meant anything, it was the Schmittian belief in a unitary national identity necessary to create a stable political order. And Brexit was the question upon which this could be established. Clues to this were evident from Theresa May’s speech at the annual Conservative Party conference in October 2016 where she stated that, ‘If you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word “citizenship” means.’ Her justification for calling a snap general election six months later was a continuation of this theme of unitary national identity:

‘At this moment of enormous national significance there should be unity here in Westminster, but instead there is division. The country is coming together, but Westminster is not.’

Disagreement, the very thing that which parliaments are designed to mediate and resolve was thus framed as sedition, with May’s cheerleader and advisor-in-chief the Daily Mail calling on her to ‘Crush the Saboteurs’. In this regard, Fintan O’Toole argues that May’s constant reiteration of ‘the people have spoken’ to silence all dissent over Brexit, harkens back to Rousseau’s analysis of the French Revolution. This is certainly the case; however, turning this against parliamentary democracy as May sought to do is pure Schmitt.

The Conservative Party thus tried to conduct the election campaign on the basis of this friend-enemy distinction. They tried to intensify the election campaign and conduct it on the existential question of Brexit and the unitary identity of the volk. This certainly worked at the outset of the campaign. After returning from Buckingham Palace upon the dissolution of Parliament on 3 May, May accused the EU of meddling in the British General Election, going so far as saying that European politicians issued threats against Britain. The following day the Conservatives gained a swing of 8% and 563 additional councillors in the local elections.

The Failed Schmittian Gamble

Ultimately, however, this strategy failed for a number of reasons. Firstly, May not only ignored that fact that 48% of the UK voted remain but that two constituent parts of the UK also voted by a majority to remain. In particular, Northern Ireland’s status within the UK is entirely dependent upon power-sharing between two distinct groups. Thus, the difficulty in establishing the friend-enemy distinction through the ballot box rather than through the irrational decision of an all-powerful Sovereign is demonstrated. It is for this reason that Schmitt argued that the people cannot decide. All they can do is affirm or reject a decision that has already been made by the all-powerful Sovereign. May’s strategy therefore embraced Schmitt’s critique of liberalism but ignored his critique of parliamentary democracy.

 Secondly, the Labour campaign sought to de-escalate the narrative of the general election towards the everyday disagreements as to funding for the NHS, university tuition fees, and other ‘day-to-day’ issues. These are important questions; however, the big existential question of Brexit was conspicuous as to its absence and many lamented any meaningful engagement with the elephant in the room. Labour thus sought to fight the election on a class analysis of inequality in the UK rather than a nationalist one based on fears of immigration and thinly-veiled racism.

Even two terrorist attacks were not enough to ratchet the intensity of the debate up again to the level of the friend-enemy distinction. Had the General Election been conducted on the basis of Brexit, debate would not have been about the intricacies of any potential deal; instead, it would undoubtedly have been on the more Schmittian level of the friend-enemy distinction, exactly the same as that which had occurred last summer which was conducted with such vitriol.


The 2017 General Election therefore was battle over the intensity of the political debate in the UK and, thankfully, the more banal issues were what dominated the narrative. This may, in turn, lead to a ‘softer’ Brexit as the Parliamentary vote on the final deal is now no-longer a foregone conclusion.  The ultimate irony therefore of the General Election is that a campaign that can be explained as motivated by Schmitt’s authoritarian philosophy has led to a hung parliament were power has become fragmented and compromise will be key. It has led to the epitome of that which Carl Schmitt’s attack of parliamentary democracy centred on. This does not necessarily mean, however, that parliamentary democracy and liberalism are robust enough to confront Schmitt. That is, perhaps, a question for another blogpost… or maybe another editorial from the Independent.

In defence of liberal democracy, indeed.


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