How to ensure the island of Ireland is no ‘smugglers’ paradise’ post-Brexit

How to ensure the island of Ireland is no ‘smugglers’ paradise’ post-Brexit

During a recent media interview, Fianna Fáil senator Mark Daly said that in the event of Brexit, the border between the United Kingdom and the Republic of Ireland would effectively promote a “smugglers charter” which would transform the Irish border to a “back door into Europe”. Other commentators have argued the risk of smuggling can only be mitigated by complete regulatory alignment between the UK and the EU, within the Customs Union. Or by a “hard border” on the island of Ireland or in the Irish Sea.

It is certainly true that the prime motivation for modern-day smugglers is financial gain. It is also true that any regulatory divergence and consequential controls – such as those that might ensue at the Irish border post-Brexit – can create an environment which may foster smuggling. However, it does not follow that smuggling can only be mitigated either by full regulatory alignment on either side; or by physical checks at a physical frontier on the island of Ireland or in the Irish Sea. In fact, there is a paradigm shift underway in global smuggling techniques, which demands an entirely different approach to customs and border enforcement.

Smuggling is a form of international organised crime, where perpetrators have no regard for the traditional Westphalian model of borders. Globalisation – and new initiatives like e-commerce, the use of fast parcels, dronesingle makrets and so on – demand nothing less. The days of customs officers sitting in kiosks at border crossing points are being replaced rapidly by alternative checks and interventions based on risk assessment and intelligence. In order to keep up with the smugglers, enforcement agencies need to adopt new approaches which transcend traditional border controls. This has already been confirmed by recognised border experts around the world and by the World Customs Organisation.

Therefore, in considering the additional risks posed to the United Kingdom, Ireland and the wider EU Single Market by smuggling in a post-Brexit era, we need to look more closely at each risk in the wider context of modern-day and future international border management strategy.

Anti-Smuggling – General Principles

Firstly, it is important that the concept of smuggling is denounced on all sides and by all parties. The moral high ground for romanticising smuggling as some form of heroism to defeat onerous tax laws for the greater good of communities are long gone. Smugglers are criminals and they move everything that is profitable across borders with no hesitation or any ethics involved – be it drugs, tobacco, weapons, trafficking victims or terrorists.

Secondly, smuggling can take place at both local, regional and international level. At local level it might be simply opportunistic; at regional level co-ordinated; and at international level sophisticated. In law enforcement, these offences are graded under the National Intelligence Model (NIM) as level 1, 2 or 3 crimes. This means that the law enforcement agencies must adopt a co-ordinated and intelligence-led layered approach to tackling it, at all levels and across boundaries.

Thirdly, border agencies now have a depth and breadth of skills in areas of data analytics, intelligence, risk-profiling and communications that are unprecedented. The collection of current and emerging data in any new compliance framework can be refined, adjusted and converted into intelligence-led interventions at breakneck speed. By establishing and connecting government data systems we can use advanced pattern recognition to “remove the haystack” that comprises most genuine traders, leaving the miscreants with fewer places to hide – particularly if the intelligence moves in all directions and across all the NIM levels.

Fourthly, enforcement agencies enjoy new options not previously available to their predecessors. International best practice views modern-day border management through the lens of the “multiple borders strategy”. This means that the border is no longer seen as a line of desks or kiosks at an airport, port or border crossing point, but as a series of transactions which commence at the first point of movement and continue throughout the journey (including border crossing) to the point of destination. By capturing and verifying data at the outset – and sharing it across agencies – we can develop packages for intervention which may be executed prior or after despatch, or at any point along the way. Indeed, best practice demands nothing less. For example, over 95% of cocaine seizures in England and Wales were made by police forces away from the border, not by UK Border Force at the ports.

Irish Border: Current Risk of Smuggling

Turning to the Irish Border, there are already inherent risks posed by smuggling that will remain regardless of any Brexit outcome. These fall within three broad categories: human smuggling, prohibited goods and restricted goods.

Human Smuggling

There is no evidence of an incentive for human smuggling between Northern Ireland and Ireland. There is agreement on both sides that the provisions of the Common Travel Area (CTA) – which allows for the free movement of people within it – will prevail after Brexit. The UK continues to face a significant threat from human smugglers at its border with France and ongoing bilateral work between the UK and French authorities is underway to disrupt it. But there is no evidence of human smuggling into Ireland, which retains the Schengen opt-out and conducts full checks on all people arriving from outside the CTA (including the EU).

Prohibited Goods

There is no evidence that either the UK or the EU intends to relax controls on prohibited goods such as controlled drugs, firearms, endangered species, indecent or obscene materials. Threats to the external borders of the islands of Ireland and Great Britain posed by such goods will remain the same. It is important that, regardless of the political outcome, enforcement agencies on all sides continue to work with each other and with colleagues in Europe, including Europol and Eurojust, at level 3, to intercept such items at their external borders at airports, ports and harbours at the perimeter of the islands, as they do now – and to conduct joint cross-agency investigations within both territories to disrupt criminal activity.

Restricted Goods

There is already regulatory divergence on excise duties between the UK and Ireland on alcohol, tobacco, and energy products (fuel, oil, gas etc). As such, there are already incentives for smuggling, especially if prices diverge to such an extent that the financial case is made. This has manifested itself in Ireland in the past through a black market in fuel smuggling. The risk of smuggling in these areas remains the same, as does the mitigation strategy. This demands ongoing collaboration between the enforcement agencies in both Ireland and the UK at all NIM levels, under the Belfast Agreement, to disrupt it.

Irish Border: Additional Risks of Smuggling posed by Brexit

Let us turn then to Brexit and the specific additional risks of smuggling that may accrue from it.

Tariff differentials

Any tariff differential post-Brexit is most likely to occur in the sanitary and phytosanitary (SPS) and agri-food sector, which might provide a financial incentive to smuggle such goods from North to South. This raises an incentive for smugglers to avoid payment of any EU tariffs by making use of the open border to do so (thus undermining the integrity of the EU Single Market). In order to mitigate this risk, the UK government should establish a legislative framework with mutual obligations to enforce EU law. This would make strong use of anti-circumvention laws with significant criminal penalties in the UK for any person seeking to avoid the EU tariff. Investigations on either side of the border would follow the joint frameworks established under the Belfast Agreement, which would include cross-border jurisdiction to investigate and intervene on either side.

Non-conforming goods on technical standards

Both the UK and the EU have stated an intention to maintain similar regulatory standards on goods – and we expect a high degree of deemed equivalence in an ensuing Free Trade Agreement. Checks on goods entering either the UK or Ireland by ship or aircraft will follow the current risk management frameworks that already exist within the jurisdictions of the UK Border Force and Irish Customs – and the risk of criminal groups placing non-conforming goods on either market would also be mitigated by criminal penalties enforceable on either side. So if, for example, a distributor of electrical products knowingly places a non-confirming product on the market in Ireland, they would immediately commit a criminal offence with significant penalties enforceable by both the UK and Irish authorities.

Violations of Anti-Dumping Orders

In order to protect the EU Single Market, the EU Commission will need preserved powers to investigate any complaints that products may be entering Ireland from the UK market at a price lower than the normal value of the product, and to enforce “anti-dumping” legislation. Such investigations normally arise following a complaint from a European producer, but the Commission may act of its own volition. In order to support the EU Commission in any such circumstances, the UK should pass legislation to make it an offence to breach EU Anti-Dumping legislation (and its anti-circumvention orders) in this way which is enforceable by both UK and EU agencies.

In each of the above scenarios it will be important to establish joint intelligence and enforcement structures and cross-jurisdictional powers between the UK and Irish enforcement agencies. Given that both sides have endorsed the provisions of the Belfast Agreement, the structures established therein for North/South and East/West collaboration are well-suited for this purpose. This is without prejudice to ongoing collaboration between the UK and the EU on anti-smuggling initiatives across both jurisdictions.

Beating the Smugglers

Smuggling is an increasingly complex business, with huge financial incentives for the criminal gangs behind it. We ignore the risks at our peril. However, to suggest that Brexit will create a “smugglers’ paradise” on the island of Ireland undermines the work that already takes place every day – not just by customs but by a variety of law enforcement agencies – across these islands and beyond. Border Control is increasingly operating at multiple levels and across multiple dimensions; in fact, this is essential best practice if we are to defeat the smugglers. The UK Border Force is already a world leader terms of global best practice: its academies regularly host delegations from border agencies around the world seeking to identify best practice in anti-smuggling techniques. A great deal of work already goes on behind the scenes to share market intelligence across sectors at local, regional, national and international boundaries. A close relationship between enforcement agencies in the UK, Ireland, the EU and beyond – united behind a common purpose to defeat smuggling at all levels – is our most potent weapon.

By making best use of structures already established under the Belfast Agreement, the UK and Irish enforcement agencies already have a very sound foundation upon which to build. The ability of governments to check goods arriving in the ports and harbours of both islands – and to develop joint intelligence and targeting systems in country at local, regional, national and international level – represents a significant advantage over other border agencies around the world which are faced with similar challenges.

Properly managed – and with goodwill on all sides – we can turn the “smugglers’ charter” into the “smugglers’ nightmare”. And we don’t need a hard border on the island of Ireland or in the Irish Sea to do so.