The Irish border sticks out like a sore thumb in the Brexit negotiations. The nature of the problem that is proving so hard to solve is never fully clear. Equally unclear is why on earth it is a major issue in the withdrawal stage of the Brexit process rather than later when trade and border issues are decided. The amount of trade done across the Irish border is miniscule even by the limited standards of Ireland, never mind the EU as a whole. The need to avoid any new border infrastructure in Ireland is hardly at the heart of future EU:UK relations and attempts to prevent this border becoming a back-door for either people or goods into either jurisdiction can be effectively managed without recourse to what amounts to constitutional change.
The UK promise made in the December 2017 Joint Progress Report to avoid all infrastructure (not just new infrastructure) and all checks (not only at the border) was always ludicrous, not least because infrastructure checks and policing of cross-border activities already exist. No-one seems to have taken any notice of UN resolution 1373, to which both the UK and Ireland are signatories and indeed were both responsible as members of the UN Security Council at the time it was passed in September 2001. Section 2g of the resolution binds all UN members to “Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents”.
Cameras are currently in use on the border and checks on food standards for exports occur at factories. Customs officers and police monitor cross-border activity to counter the smuggling of people and goods. Cross-border differences in VAT and excise duties make it lucrative to smuggle fuel and tobacco. In the past, the scale of fuel smuggling was large enough to endanger the very survival of legitimate fuel retailers in Northern Ireland. As a result, measures were taken to increase the numbers of customs officials monitoring smuggling.
It is not widely known that garda (Irish police officers) routinely remove people from cross-border buses, and those removed appear mainly to be non-white. The rumour in Belfast is that bus-drivers are paid by the southern authorities to provide information on suspicious passengers. Some of this may reflect the requirements of UN resolution 1373 but more likely are the prevention of illegal immigration and smuggling.
The UK’s EU (Withdrawal) Act 2018 (section 10.2b) stipulates that no new ‘physical infrastructure be created, including border posts, checks or controls. That only new infrastructure is included is clear. Less clear is whether the phrase ‘checks and controls’ applies only to those at the border itself. The main purpose of the Act was to repeal the 1972 European Communities Act and no explanation is included for the addition of constraints on border infrastructure.
As we know, the main reasons given by the UK Government were to uphold the Good Friday Agreement and to prevent a new outbreak of violence in Northern Ireland. These reasons for the undertakings on the border have always been vague and only weakly substantiated, if at all. David Davis now retired as Brexit Secretary is one of those who regard the importance of the border issue to be greatly inflated (Andrew Marr Show September 2nd). Since Gerry Adams has firmly asserted no return to violence, and regards dissident republicans as having no community support, the renewed threat of general violence is clearly tendentious. More serious are police concerns that erecting, maintaining or protecting border infrastructure could put police at risk from the small number of dissidents.
While these concerns must be taken seriously and are being taken seriously, there are a variety of ways in which they can be addressed. Both the UK and the EU have, for whatever reason ignored perfectly feasible technological solutions. Instead, they have proposed wide-ranging and grandiose, constitutional changes. The EU’s Draft Withdrawal Agreement of March 2018 is stark. It proposes a backstop ensuring no border infrastructure, including that ‘Northern Ireland shall be considered part of the customs territory of the (European) Union’. No duties or trade quotas would be permitted, nor taxes on EU products. EU law on VAT and excise duties shall apply in Northern Ireland. EU law would also apply to agricultural production and fisheries and to food standards and safety.
Not surprisingly, these proposals were described as an attempted annexation of Northern Ireland and were immediately denounced by the DUP and rejected by the UK Government. Since they clearly imply a trade border between Northern Ireland and GB they also contradict paragraph 50 of the December Joint Progress Report which rejected any such border.
The UK Government has instead suggested (in its June 2018 technical note) an alternative backstop. This is that the EU proposals should apply instead to the entire UK rather than just to Northern Ireland. Somewhat comically, this Technical Note merely repeats the text in the EU Draft Withdrawal Agreement but substitutes ‘UK’ for ‘Northern Ireland’ everywhere that the latter appears.
These UK proposals are further fleshed out in the July (Chequers) White Paper which proposes free-trade for goods between the UK and EU, with the UK subject to EU regulations for tradable goods, and following EU rules for labour markets, environment and competition policy plus state aids. This formidable list of areas in which the UK would be bound to EU rules is meeting significant opposition within the parliamentary Tory party and the passage of the White Paper through Parliament will depend on Labour support.
Since the White Paper’s proposals apply to post-Brexit trade relations, they need not be agreed with the EU until after leaving the EU next March. The accepted joint aim is to reach agreement on the Withdrawal Agreement by the EU Council meeting in October with the concurrent addition of a ‘political declaration on the future (trade) arrangements’. The latter may be detailed but could just as easily be vague and aspirational.
The problem for the UK is that its proposed Irish backstop depends on future trading arrangements that the EU have not accepted and are most unlikely to accept in their current form by October since they pre-empt future trade talks. The EU will not accept the cart being put before the horse. The EU demand is still for an Irish backstop that does not depend on any future trade arrangements with the UK as a whole. At the same time the UK rejects treating Northern Ireland separately from the rest of the UK as the EU proposes.
Both sides have thus painted themselves in corners with proposals that the other cannot accept. Some in Ireland feel that Irish concerns about a hard border will be abandoned at the eleventh hour. Similarly, nervous unionists in Northern Ireland fear that their concerns will be thrown overboard. Neither is likely or, in the latter case, even politically possible. The most obvious ways forward are for the EU to accept UK bone fides on the Irish border and move border negotiations back in line with future trade negotiations which is where they should have been all along. At that point a degree of realism might assert itself. This would involve a mix of easily available technology, equivalence of phytosanitary regulation between Northern Ireland and the EU and some checks on sensitive goods coming into Northern Ireland by air or ferry.
The details of a technological border are relatively straightforward. In the context of a free-trade agreement, with no tariffs on trade between the UK and EU, border checks can be done without personnel or infrastructure at the border itself. All customs declarations can be made online, as is becoming the norm globally. The deputy director of Swedish customs, Lars Karlsson, has repeatedly said that the progress of declared goods across the border can be monitored using standard mobile phone and GPS technology (already available in most trucks), thus avoiding fixed cameras. This monitoring technology is already in use by Network Rail, Uber and many others, and has been successfully trialled on the Norway-Sweden border. This gives an invisible border, which the head of Swiss customs, Dr Christian Bock confirmed is technically possible in evidence to the Northern Ireland Select Committee last November. Checks for illegal activity can be undertaken anywhere. With regulatory equivalence and provision for checks on sensitive goods coming into Northern Ireland from outside the EU (which the DUP can agree), most of the legitimate concerns of the EU can be met. Frequent cross-border trade by small businesses, particularly in services, can be accommodated within a free-trade agreement.
Sadly these practical solutions have been largely ignored by politicians in Dublin and Brussels – who appear to be using the Irish border as a card in their negotiating hand.
All of this could have been agreed long ago. We must leave it historians to discover why this did not happen.