How to avoid a hard Irish border (and remain outside the Customs Union and Single Market)

How to avoid a hard Irish border (and remain outside the Customs Union and Single Market)

The issue of the Irish border is becoming the major sticking-point in negotiations and, consequently, undermining our ability to reach the mutually-beneficial relationship with the EU that we all want to see.

Whilst in no way wanting to diminish or trivialise the concerns that exist – especially those living either side of the border – it is clear that the threat and intractability of this issue has been both exaggerated and exploited. This question is thus in desperate need of sober reflection.

Back to basics: what are our objectives?

There are two reasons why a ‘hard’ economic border with Ireland is of particular concern (i.e. more so than the rest of the UK’s external border):

  1. It could undermine the Good Friday Agreement (i.e. the 1998 Belfast Agreement); and
  2. It could provoke violence.

For reasons I will state momentarily, I believe achieving an invisible border is not just achievable, but overwhelmingly likely. However, it is also a mistake to automatically assume that the worst-case scenario of a ‘hard’ border would preclude the attainment of our two stated aims.

Objective 1: Good Friday Agreement

Quite simply, when it comes to our aim of upholding the terms of the Good Friday Agreement (GFA), a hard border poses no threat whatsoever. As Andrew Lilico correctly points out:

“There is nothing in the Belfast Agreement that says there cannot be customs duties payable on crossing the border (whether payable at the border itself or in some other way), different regulatory compliance requirements on opposite sides of the border, or even, if required, the stopping of goods at the border.”

This verdict has been repeated by multiple authorities ranging from Lord Trimble (former First Minister of Northern Ireland and one of the architects of the GFA), to the UK Supreme Court, which – in a judgement surprisingly under-reported – ruled in 2017 that the Belfast Agreement was entirely unaffected by the Brexit process.

Thus, a worst-case-scenario hard-border does nothing to undermine our first objective of upholding the GFA. However, this is not the same as saying that a hard-border would not undermine ‘peace’.

Objective 2: Peace

The factors that might credibly pose a risk to peace are complex, and there is a clear need to tread lightly here. However, as Gary Cahalane points out, there are good reasons for believing that the threat has been overstated.

For example, if economic divergence between the North and South is a threat to peace, why have Dublin governments spent the last 18 years diverging from Northern Ireland on tax, currency, interest rates and excise duties?

Indeed, divergence on excise duties has led to arrests, detentions and convictions along the border (all, it will be noted, without outbreaks of terrorist violence). It seems strange that, until now, divergence has been considered completely unproblematic for peace and stability, yet future divergence (on, for example, customs or product standards) is deemed unacceptable.

Likewise, it should be noted that physical infrastructure in the form of cameras already exist at the border. It is not obvious why the introduction of a few more cameras would be the straw that breaks the camel’s back.

As I say, however, I am in no position to predict the actions of would-be terrorists. Let us assume, then, for the sake of argument, that peace is contingent upon an open economic border. Does an open border necessitate membership of a customs union or single market? Not in the slightest.

Let us start by separating the issue of the movement of people with that of goods.

Movement of People

Worries about the free movement of people across the Irish border is a non-starter. The Common Travel Area between Ireland and Northern Ireland – which enables citizens to travel, reside and vote –  predates EU membership by a good 50 years.

In response to this, many have pointed out that because the UK and Ireland joined the EU at the same time in 1973, we have never had a situation in which one country has been inside the EU, and the other out. This is a problem – goes the argument – because Northern Ireland would become a back door for illegal immigration to the UK from the EU (and vice versa).

However, as Hugh Bennett notes, this argument is a complete red herring:

“If anyone was intending to stay in the UK illegally, they could simply do it by entering the UK directly and overstaying their visa, rather than taking the convoluted route of entering via Ireland.”

Those making this argument also seem to be persisting with the erroneous belief that modern immigration controls are (primarily) policed at borders. Immigration control is far more about ‘what’ an individual can do once they’ve already entered a country, not ‘whether’ they can get in in the first place. I can travel to nearly any country as a tourist. What prevents me from living and working there, however, are controls limiting my ability to open a bank account, obtain a national insurance number, buy or rent accommodation, and so on.

Movement of Goods

As for the movement of goods, it has been the consistent view of Jon Thompson, Chief Executive of HMRC, that there will not be any requirement for physical infrastructure between Ireland and Northern Ireland under any circumstances. This is also the conclusion of the former Director of the World Customs Organization, Lars Karlsson, who authored a report on the issue of the Irish Border for the European Parliament.

So, what makes these two customs experts so certain that that a hard border is avoidable outside a customs union and single market?

The first crucial thing to understand is that customs ‘controls’ (which are inevitable once we leave the EU) do not equate to customs ‘checks’ or ‘infrastructure’.

The Irish border is already a legal economic border for excise (i.e. alcohol, tobacco, fuel duty), VAT, immigration, visas, vehicles, dangerous goods and security.  None of these border functions requires physical infrastructure.

Once we leave the EU, to this already long list of functions we will need to add ‘customs’ (i.e. tariffs or rules of origin) and ‘product standards’. The arrangements that allow for an invisible border now will be the same that provide for one in the future.

This is because – as Shankar Singham explains“in practice, most of the necessary formalities are conducted electronically, with checks taking place pre-arrival, followed up in a small minority of cases at warehouses, or even in the market and payments made on account.” Thus, no formalities need actually take place at the physical border.

But, you may reasonably ask, what prevents traders from falsely declaring what they are transporting across the border? Without verifying customs declarations against the actual physical consignment to ensure they match, how do you prevent smuggling?

Well, in the same way you stop nearly all of the 10 million people who submit self-assessment tax returns each year from defrauding the Government: the fear of audit and, if guilty, the fear of punishment.

As with anything, the Government can do little to pre-emptively stop crimes from taking place, but they can certainly investigate fraud on an intelligence-led basis and deter non-compliance with the threat of sanction.

Of course, unless you really are prepared to check every consignment at the border (something no country does) then you are always exposed to the risk of smuggling. But what does this mean in practice? Some lost tax revenue and the occasional product in circulation with marginally different standards? If this is the price for peace on the Irish border, it is one I’m certainly willing to pay.

The only goods that present an additional problem outside a single market are animal products. This is because they are required to go through specific entry points with border inspection posts (BIPS) where veterinary checks can be done by accredited handlers and vets.

The need for these specific checks at borders, however, could be easily obviated if the EU would agree to mutual recognition of sanitary measures for meat and animals. It’s difficult to see how the EU could justify not agreeing to this given that we are starting from a point of regulatory alignment and they have similar agreements in place already with Canada and New Zealand.

So, what’s the problem?

At the risk of being accused of cynicism, it is hard to avoid the conclusion that the Irish border is becoming a problem of ‘choice’ rather than necessity.

Let’s review some of the facts:

When the UK’s proposals were first published last summer, they were welcomed by Irish Foreign Minister Simon Coveney, who stated that he “agreed with the vast majority of them” and that they employed “a lot of the language that the Irish government has been using”. It is also worth remembering that – at roughly the same time –  the head of the Irish tax authorities, Niall Cody, said he was “practically 100% certain” that no new customs posts would be necessary along the border – thereby agreeing with the UK position.

However, the Irish Government did an about-turn in November 2017 when Leo Varadkar became the new Taoiseach. Varadkar cancelled all work by Irish civil servants on an electronic border and terminated meetings between civil servants in Ireland and Northern Ireland. His rhetoric over the Irish border also hardened, which had nothing to do, I’m sure, by the fact that each anti-Brexit remark was invariably followed by a boost in domestic popularity.

As Alexander Redpath reminds us:

“The Taoiseach does not have his own mandate and is keeping one eye on an inevitable Irish general election. Mr Varadkar is aware that Brexit is intensely unpopular amongst the Irish electorate and there is political gain from being seen to oppose it.”

Ireland is also hugely dependent on the UK for trade, and they’ve understandably arrived at the conclusion that the UK’s membership of the Single Market and Customs Union would suit them, even if it wouldn’t suit us.

As for the EU, it is no secret that they are desperate for us to remain in the Single Market and Customs Union. The reason, of course, is that Brussels is terrified that the UK will become a “super-competitive country” on its doorstep. This perennial worry of theirs rises embarrassingly to the surface whenever they propose the absurd requirement that any future partnership agreement would need to include a ‘fair-competition’ clause – essentially precluding the UK’s managed divergence of regulations.

Somewhat irresponsibly, then, the EU are exploiting fears about peace in Northern Ireland to keep the UK uncompetitively tethered to the single market and customs union. But how can I justify such depressing cynicism?

Well, if peace in Northern Ireland really were Brussels’ overriding concern, then proposing the effective annexation of Northern Ireland (as they did in their draft Withdrawal Agreement) was an odd way of demonstrating this. How separating Northern Ireland from the United Kingdom would ensure peace is anyone’s guess. Such an action would also – it’s worth noting – directly (and ironically) violate the terms of the GFA.

Where do we go from here?

Against an emotive back-drop and in difficult circumstances, I think the British Government is managing the situation remarkably well.

However, we need to exhibit more confidence in our own position that divergent customs and product standards can be managed without the need for physical infrastructure.

Ministers should also challenge Brussels when the latter claim that such arrangements are impossible. After all, it is not just that such technological arrangements are ‘possible’, it is that the EU has international legal obligations under the WTO’s Agreement on Trade Facilitation to implement them.

We also need to tone down the rhetoric, and treat with scepticism those who feel comfortable abusing such an emotive issue to advance their own political or economic objectives.

The sad truth is that hard borders in Northern Ireland would not be the logical consequence of any one policy position; they would be the result of a conscious political decision to erect them.