Mike Galsworthy, founder of Scientists for EU and Healthier in the EU and occasionally slightly smug star of “walk and talk” videos aplenty, recently tweeted this:

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The context was the non-breakthrough on UK/EU negotiations over possible arrangements for the UK/IE border, post-Brexit. Unsurprisingly, it has been liked and retweeted to a chorus of whoops of derision (aimed at the putative Year 9 pupil, a certain David Davis). So far, so hilarious. As a question which tests a pupil’s ability to understand Venn diagrams, I cannot fault it. Dr Galsworthy is, after all, a proper scientist who deals in complex data analysis on a daily basis in his academic work. But asking a question is not the same thing as making an argument (let alone a convincing argument), and this is where the joke falls down.

As Mike Galsworthy’s Twitter output makes clear, he is a Remainer. He would like to see Brexit abandoned and forgotten, and Article 50 retracted, I assume. I disagree with him on this. Just because our hopeless, floundering government is making a pig’s ear of Brexit, that is not enough to convert me to the cause of EU federalism. Where I suspect (hope) we would agree is upon the matter of so-called “hard” Brexit, which would be a disaster.

Here’s Mike’s back-of-a-fag-packet version again (not that I expect health researchers to have actual fag packets to hand). Although the standard ISO Alpha-2 code for the entire UK is “GB”, I’m using it here to refer to UK-minus-NI.

Figure 1

The answer to this question is obvious. “GB” must be placed in the same union of the two sets as “IE” (i.e. SM  CU). That works fine as a question about Venn diagrams, but it doesn’t constitute an argument. There are (many) premises missing. To put it in the form of a (kind of) syllogism:

  1. IE is in both SM and CU
  2. NI must be in both SM and CU
  3. GB must be in the same sets as NI
  4. THEREFORE: GB must be in (SM  CU)

The most obvious information missing concerns what it is that we are trying to achieve. What is implied by the timing of the tweet is, “frictionless trade between NI and IE”. This gives us the rather more wordy:

  1. IE is in both SM and CU
  2. In order for NI frictionlessly to trade with IE, it must be in both SM and CU
  3. In order for GB frictionlessly to trade with NI, it must be in the same sets as NI
  4. THEREFORE: GB must be in (SM  CU)

The first term to examine is “frictionless”. Since the early 1990s, people and goods have passed freely between NI and IE with minimal state interference. Both IE and NI are members of the EU, which is a Single Market and a Customs Union (NI participating as part of GB). As milk is a commodity which crosses the IE/NI border in massive quantities, let’s talk about that for a bit.

Milk produced in NI can cross the border into IE to be pasteurised, packaged, made into cheese, etc. without hinderance. That processed milk can then smoothly cross the border again to be sold in NI, or perhaps exported by NI; either to another EU country, or a country outside the EU. As well as the free movement of goods (processed and unprocessed), there is also free movement of people not subject to passport checks, even though neither IE nor GB (and thus NI) are party to the Schengen Agreement. However, free movement of people is a politically sensitive matter given Irish history and has existed (with occasional interruptions) since the 1920s. It is also a special feature of the land border between IE and NI — a Northern Ireland resident entering the Irish Republic by air or sea would be subject to the same passport checks as his or her fellow travellers. However, here the issue is not people, but products.

What is it that facilitates this (relatively) frictionless trade? I say ‘relatively’ because the border has not been erased. The high rate of alcohol duty in the Irish Republic means that smuggling is matter of concern and Irish Revenue Commissioners and UK Revenue and Customs regularly cooperate to reduce cross-border smuggling. They do this without static border posts and checks, but this still amounts to a policing of the border.

Simply because IE can be placed in the union of two sets, it does not necessarily follow that these are the conditions for frictionless trade with it. For example:

Figure 2

No one would suggest that because IE uses the Euro and happens to be a republic any country wishing to trade with it must also adopt the Euro and depose their monarch, whatever republican EUphiles might wish. Once again, it works as an exercise about Venn diagrams, but it is not an argument about trade.

I need hardly point out that IE is also a member of the EU, and plenty of Remainers would prefer to advance this as an argument:

Figure 3

What is necessary, therefore, is to show what it is that allows the current level of relatively frictionless cross-border trade between IE and NI. But first a word about why trade is currently frictionless. It is not because borders have been abolished. That is to get things backwards. One could, in theory, have two countries — let’s call them Buranda and Kumran — which agree to abolish customs checks on one another’s goods. This implies that they mutually recognise one another’s standards. This also means that it is quite possible that the relatively underdeveloped dairy sector in Buranda might produce poorer quality milk than the high-tech farms of Kumran. With mutually recognised standards and no customs officers armed with burettes and lactometers, quality control must be left to the market — it will be up to consumers to reject cheaper Burandan milk with its cargo of antibiotic residue and harmful bacteria.

The European Single Market (EU and EEA) does not take this approach. In order to facilitate the frictionless trade in goods across national borders, quality control was not abolished, but pushed down the production chain. Regulations are applied and standards checked before the milk crosses a border — on the farm, in the milking shed, on and off the tanker, in the processing and packing plant, in the refrigerated truck delivering the cartons of milk to the supermarket, in the supermarket itself. Goods pass across the border already approved. There is still the need to check and test quality and standards, but this is no longer done at the border.

It’s tempting to assume that what has brought all of this about is the EU Customs Union simply because of the word ‘customs’ in its name. Yet the Customs Union was a principal component of the EEC from 1958 and was pretty much complete ten years after that. Even so, customs formalities at borders were still the norm throughout the 1980s. In an attempt to reduce border delays, France and Germany even went as far as signing an agreement outside the provisions of the Customs Union. What the Customs Union aimed to do was draw a customs border around the EU, setting a Common External Tariff, and remove tariffs between members.

Since the Customs Union, however, the Single Market has been established (though it is a work in progress), and it — even now — goes much further than the Customs Union, seeking to abolish not only tariff barriers, but qualitative and quantitative barriers too (quasi-customs duties, if you like). Thus the Customs Union has been superseded by the Single Market. All that remains, in effect, is the Common External Tariff. In other words, the Customs Union is no longer concerned with customs between member states: that heavy lifting is now done by the Single Market.

Finally, there is the matter of what is possible for a non-EU state, which the UK (GB including NI) will become. The status of three of the EFTA member states (IS, LI and NO) show that it is possible to participate in the Single Market (EEA) without EU membership. This means that they are subject to the rules and laws of the Single Market, but crucially this means EEA law, not EU law. There is even a well-established mechanism for interpreting (the EFTA Court) and monitoring compliance with (the EFTA Surveillance Authority) this body of law. No such system, or “pillar”, exists for the Customs Union which, given that it is only extended to EU member states, is dependent upon various EU treaties, rather than the EEA Agreement.

“So what about the Turkey-EU Customs Union?”, I hear Chuka Ummuna and others cry. Turkey is in a Customs Union with the EU, not the Customs Union. If anyone thinks that this provides for frictionless cross-border trade should spend a day on the Turkey/Bulgaria border and report back.

A far better example is the border between non-EU Norway and EU Sweden, for here we find the most similarities with the ‘New Irish Question’. Like the island of Ireland, there is a common travel area (the Nordic Passport Union) that predates the EEC/EU. As in Ireland, many people live on one side of the border and travel to work on the other. Like Ireland, there is a land border (though that between SE and NO is more than three times as long). Also like Ireland, there is a high volume of JIT cross-border trade. Is it frictionless? Not entirely. But it is generally smooth and efficient and operates with minimal formalities. Customs officers operate on both sides of the border. What is necessary to make this work is not a Customs Union (Norway is not part of the EU Customs Union), but Customs Cooperation. To reduce friction, that customs cooperation needs to be streamlined and deepened, but membership (per imposible) of the EUCU would not make any real difference.

In an interview with the Irish Times, Tony Magnusson of Swedish Customs put it like this:

“Without Norway in the EEA things would be more complicated for customs checks,” said Mr Magnusson. “Without Norway in the EEA, ours would be a normal third-country border.”

Many Remainers (see Figure 3, above) will argue that only the UK remaining in the EU can ensure a totally frictionless border of the kind that currently exists between IE and NI. They are right. The UK is leaving the EU, and that will mean change. To his immense credit, Dr Galsworthy recognises this, however much he wishes Brexit were not happening. A couple divorcing may hope to reach a mutually acceptable agreement regarding their assets and children, yet would not expect to continue sharing a bed or a bank account. They can still be partners of a sort, but the mode of that partnership will change.

By analogy, there will inevitably be changes in how cross-border trade in the island of Ireland is conducted. The challenge is to ensure that there is as little disruption as possible, not least because of the sensitive political situation and (still) precarious peace. This undoubtedly means committing to continued and ‘ever closer'(!) cooperation between NI and IE. It also means the whole of the UK remaining in the Single Market (EEA) under the auspices of EFTA, at least for a time.

Most of all, however, it means forgetting about the Customs Union.