The EU is cynically exploiting the Irish border to try to keep Britain under the thumb

The EU is cynically exploiting the Irish border to try to keep Britain under the thumb

The EU cat has very much been set among the Brexit pigeons with the Telegraphʼs front page report that the EU has rejected both of the UK’s proposals for ensuring there is no hard border between Northern Ireland and the Republic of Ireland post-Brexit, prompting further claims that there is no alternative to the UK remaining in the Customs Union after Brexit.

It was no surprise to see the Whitehall pipe-dream of a “New Customs Partnership” being rejected – numerous figures from across the partisan divide have long warned that the complex double customs system with back-payments would be unworkable. The EU dismissed it on the grounds that the UK would be outside its supervision, it would place an unfair burden on business and be too expensive to implement for the EU27 themselves.

However, the EU also dismissed a proposed technological solution, combined with exemptions for small businesses, reportedly on the grounds that it would set a precedent for “turning a blind eye” with countries like Turkey.

If this is genuinely the best reason the EU can come up with for why a technological solution won’t work, the UK’s negotiators need to inform them in no uncertain terms that they need to make a serious reassessment of their negotiating position. It is a red herring of record-breaking proportions.

The EU-Turkey border could not be more different from the Irish border. I have crossed both. The border crossing between Bulgaria and Turkey at Kapıkule is the second busiest land border crossing in the world, a sprawling complex covering 3 million square feet that processes vast quantities of goods and tens of thousands of people every day. EU-Turkey trade amounts to over €144bn a year. It is a particularly secure border given the migration pressures it has come under in recent years. It took me several hours to cross it at a quiet period in the middle of the night. And this is despite Turkey being in a customs union with the EU.

By contrast, the volume of goods trade crossing the Irish border is a vanishingly small fraction of total EU trade – under €5bn a year, equivalent to barely over 0.1% of current total external EU trade (€3.7 trillion last year). Ireland and the UK have had a Common Travel Area (or a mini-Schengen Area, to put it in terms the EU is more comfortable with) for almost a century. The total population of Northern Ireland is less than half the number of people that cross the EU-Turkey border every year. To compare the Irish border to the EU-Turkey border is a farcical and wholly disingenuous exercise.

No proponents of a technological solution are saying that the Irish border should be unenforced, simply that the volume of trade and the risk of non-compliance is sufficiently small that intelligent-led enforcement some miles back from the physical border itself is a proportionate way to enforce the necessary border formalities and checks. For a comprehensive exposition of how the technological solution would work and why the common objections and misconceptions about it are not valid, readers should refer to Shanker Singham’s extremely thorough article on the issue last month.

There is a need to separate the two issues of facilitating legitimate trade across the border – essentially a question of bureaucracy to which a combination of waivers and expansions of existing trusted trader-type schemes have been proposed as viable answers – and the need to prevent illegitimate trade across the border – which is much more a question of practical, political and economic judgement of the relative costs of border enforcement versus potential non-compliance across the border. It is largely this second issue where the fuss is being made – for political reasons.

This gets to the heart of the principal misconception about the Irish border. A technological solution and open border does not mean an unenforced border, or that either side of the border suddenly becomes a lawless territory. Nor does it mean that the Republic of Ireland is being forced to change its laws or its relationship with the EU single market and customs union. There are already different laws on either side of the border – one of the specific functions of the Good Friday Agreement is to manage divergence on either side of the border.

There is already a legal border for excise (i.e. alcohol, tobacco, fuel duty), VAT, immigration, visas, vehicles, dangerous goods and security – indeed, the primary function of the hard border of the past was as a security border, not a customs border. Today, these border functions are enforced without any physical infrastructure in place. Adding customs declarations and marginally divergent product standards to the long list of functions the border already implements invisibly does not require any drastic change in the nature of the border. Even in the most complicated area, agriculture, the Director of Animal Health and Welfare at DEFRA has already given evidence to Parliament that the SPS-related risks would not be altered by Brexit from what the authorities are already managing across the border pre-Brexit, and additional infrastructure at the border would not be needed.

Modern borders do not involve every single shipment being checked by peaked-caps guards and every single product being tested by white-coated technicians to see if it conforms to thousands of regulatory standards then and there at the border. It would be patently be absurd in both economic and practical terms for 100% of shipments and 100% of products to be tested at borders – the huge cost of doing so would obviously far outweigh any minuscule reduction in the amount of customs fraud, and it is simply not done. Instead, border agencies conduct checks on an intelligent-led basis using statistical risk assessment approaches to find the appropriate level of enforcement. World Bank figures show that developed economies in fact typically inspect only between 1% and 4% of imports physically at their borders, while product standards are primarily enforced within markets, not at borders.

Border enforcement, like law enforcement of any kind, is about striking a proportionate balance between the costs of enforcement and the risks of non-compliance. Where the risks are low – as they very much are between two highly developed economies with highly similar levels of product standards – and the costs are high – particularly the unique political and human costs of reimposing a physical border on the island of Ireland – then the proportionate and practical approach for both sides is self-evidently to take a light-touch approach towards enforcement.

Ireland only physically inspects 1% of imports at its border now. Yet the EU’s objections are seemingly resting on the notion that registering UK imports remotely in advance and then spot-checking them a few miles back from the Irish border after Brexit will somehow represent an intolerably serious increase in risk to the “integrity of the Single Market and Customs Union” compared to the current arrangements.

If the EU wants to talk about precedents, annual EU-Switzerland trade is of the order of 100 times greater than NI-RoI trade, and yet the many Swiss border crossings to the EU are frequently completely unmanned, despite Switzerland being in neither the Single Market nor the Customs Union.

Instead, the EU is adopting a maximalist, ultra-legalistic position for political gain – it has scented British political weakness and is cynically using the Irish border issue as the thin end of a wedge to keep the UK locked into its legal orbit post-Brexit. The EU has a paranoid obsession with preventing UK from gaining full independence, as repeatedly evidenced by its incessant attempts to set legal traps for the UK – ongoing ECJ jurisdiction, “punishment” clauses and “level playing field” clauses and, most egregiously, the Irish border issue.

Meanwhile, Dublin is happy to play along because Leo Varadkar has long ago taken the view that the only way to protect Ireland from what he sees as the disaster of Brexit is to force the UK to remain in the Single Market and Customs Union. Varadkar took the specific decision to cancel the work on technological solutions initiated by his predecessor Enda Kenny when he took office last year. History has already shown how short-sighted and counterproductive this move has been, deliberately throwing away the potential for compromise in favour of the brinkmanship being engaged in by Ireland and the Commission today.

So it is no surprise to find that the EU’s only acceptable “solution” to the Irish border is not only the UK remaining in the Customs Union but also maintaining “full compliance” with EU rules on goods and agricultural products across the entire UK. This is obviously completely unacceptable to Brexiteers (and indeed a good many Remainers) and would be a disastrous outcome of the negotiations, both for the UK’s future trade prospects and, more fundamentally, for the UK’s ability to democratically govern itself. British negotiators should immediately disavow their EU counterparts of any delusions that this is somehow going to fly. It will not.