Further to this piece of 19th September investigating the risk of increased smuggling across the Irish border after Brexit, we set out below a legally operable cross-agency operational plan to be established between the Customs and Enforcement Agencies of the United Kingdom, Ireland and the European Union to protect both the EU Single Market and the UK Border from abuse by illegal activity after the UK leaves the European Union on 31st October 2019. It should be read in conjunction with the Prosperity UK report on Alternative Arrangements for the Irish border, and associated documents. Legal Operability The draft Withdrawal Agreement and Political Declaration, and the Belfast (Good Friday) Agreement, set out the intention and legal frameworks by which the British, Irish and EU Member States may to work together to protect their respective countries and communities from international organised crime and smuggling, after the UK withdraws from the EU. Withdrawal Agreement Article 43 of the Withdrawal Agreement requires the market surveillance authorities of the EU Member States and the UK to exchange without delay any information on any goods placed on the market during the transition period. Article 50 of the Withdrawal Agreement allows the UK to have access to relevant networks, information systems and databases for this purpose. Article 62 of the Withdrawal Agreement provides for ongoing police and judicial collaboration in criminal matters. Article 63 of the Withdrawal Agreement provides for ongoing law enforcement cooperation proceedings, police cooperation and exchange of information including cross border surveillance. Belfast (Good Friday) Agreement Strand 3 of the Belfast (Good Friday) Agreement established a British–Irish Council (BIC) and a British–Irish Intergovernmental Council (BIIC) to facilitate cooperation between all law enforcement agencies in both the United Kingdom and Ireland on security matters. Political Declaration Paragraph 19 of the Political Declaration recalls the determination of the parties to replace the backstop solution in Northern Ireland by a subsequent agreement that establishes Alternative Arrangements the absence of a hard border on the island of Ireland on a permanent footing. Paragraph 26 of the Political Declaration states that the Parties will put in place ambitious customs arrangements in pursuit of their overall objectives; including through the exchange of information to combat customs fraud and other illegal activity. Paragraph 82 of the Political Declaration states that the future relationship will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial collaboration on criminal matters, with the view to delivering strong operational capabilities for the purposes of the prevention, investigation, detection and prosecution of criminal offences. Paragraph 84 of the Political Declaration states that the future relationship should cover arrangements across three areas of cooperation: data exchange, operational cooperation between law enforcement agencies and judicial cooperation on criminal matters, and anti-money laundering and counter-terrorism financing. Paragraph 85 of the Political Declaration recognises that effective and swift data sharing and analysis is vital for modern law enforcement; and permits the parties to put arrangements in place to reflect this in order to respond to emerging threats, disrupt terrorism and serious criminality, facilitate investigations and prosecutions, and ensure the security of the public. Paragraph 90 of the Political Declaration enables the parties to consider further arrangements for the practical cooperation between law enforcement agencies, such as joint investigation teams. Paragraph 120 of the Political Declaration states that the future relationship should be based upon an overarching institutional framework that allows for specific governance arrangements in individual areas. Proposal In order to mitigate the potential risks of smuggling posed by any tariff differentials in the transition period – and to investigate any evasion of Anti-Dumping Duties into the EU single market – the relevant enforcement agencies in the UK, Ireland and the EU must be empowered to act in accordance with the aforementioned provisions to prevent criminal activities as well as to monitor, investigate, disrupt, deter and prosecute offenders. Such cross-border activity already exists in non-European jurisdictions such as the US/Canada border – and between EU and non-EU Member States at the Norway/Sweden Border – based on bilateral agreements. In this context, the EU (Sweden)–Norway technical cooperation has several elements that have been in operation for some considerable time, with successful results. Data Sharing The key to successful law enforcement in disrupting and preventing cross-border crime lies in the timely acquisition of accurate data; and a collaborative approach between customs and enforcement agencies on both sides to analyse and refine it into intelligence packages to inform interventions, which are then shaped and targeted for maximum impact. The ending of free movement of goods between the UK and the EU – and the consequential access to commercial data through the increase in import and export declarations – on both sides provides significant opportunities for law enforcement agencies to identify risk-based intelligence profiles to protect their respective communities from crime. Border Checks Modern-day border checks rely entirely upon intelligence-led interventions, which may take place at various points and timeframes in the supply chain and – with appropriate legal authorities – by agents from multiple jurisdictions. Targeted interventions are far more effective than routine physical stop and search at the border itself. These interventions may take place in facilities at the point of origin, transit or delivery, based on strategic and tactical intelligence assessments. Joint Working In order to maximise these opportunities, the relevant law enforcement agencies must be empowered – in so far as the legal framework permits it – to share data and intelligence with each other. Furthermore, the parties should establish a legally operable framework on the island of Ireland which grants cross jurisdictional powers to the customs and border agencies to intervene. In order to give effect to these measures the parties should establish governance arrangements under the existing BIIC structure, and under paragraph 120 of the Political Declaration, to give effect to a joint border action plan between the parties. The aim of the joint border action plan would be to establish mechanisms and structures between the customs and law enforcement agencies from all sides to identify new and emerging threats to the border security arising from the withdrawal of the UK from the European Union. This would be based entirely upon the aforementioned provisions of the Withdrawal Agreement, Political Declaration and Good Friday Agreement to facilitate a deep and meaningful international collaborative approach to the investigation, disruption and prosecution of all forms of cross border crime. International Comparators International best practice already demands that law enforcement agencies work across borders to investigate and disrupt international organised crime and smuggling. The EU has long established structures for collaboration between Customs agencies from Member States which include intelligence-sharing, officer exchange programmes and a joint interventions strategy. Such arrangements are not restricted to EU Member States; they extend more widely to source and transit countries through third country agreements, and international law enforcement structures such as Interpol and the World Customs Organisation. Lessons can be learned from other countries on the development and implementation of joint border action plans which do not require membership of a Single Market or Customs Union between the parties. In North America, the US – Canada “Beyond The Border” initiative established comprehensive arrangements for joint working between US and Canadian law enforcement agencies to disrupt cross border crimes. This includes the development of National Targeting Centres on both sides of the border with information sharing agreements to identify external threats; officer exchange programmes; and integrated border enforcement teams empowered to develop and implement investigations and operations on both sides. In Europe, the Norway-EU (Sweden) border permits single inspections and cross-border investigations by Customs agents on either side of the border. There is a framework for exchange of intelligence and risk management data, profiles, patterns on all levels – namely strategic, tactical and day-to-day operational level. Both countries work actively to manage and monitor the international supply chain based on agreed objectives; and to share access to all relevant intelligence and risk management data. Next Steps Given that the UK and Ireland are starting from a point of regulatory conformity – and that both the EU and the UK have already committed to ongoing collaboration on matters of criminality and security – work should commence immediately on the establishment of a joint border action plan between all the relevant enforcement agencies on both sides. Terms of reference should include: A joint border threat and risk assessment, covering the concerns of both sides including the protection of the integrity of the UK Border and the EU Single Market; A deep and comprehensive data-sharing agreement between the parties which respects the EU regulatory framework whilst simultaneously enabling the parties to develop joint analytical units and intelligence packages; A joint targeting centre on the island of Ireland comprising of customs and law enforcement agents from both sides, with a joint governance structure aligned to the BIIC and the new joint UK/EU governance structure; A commitment that both countries should individually and collectively work together to increase access to relevant intelligence and risk-management data from other partners and the international supply chain; and Development of codes of practice for interventions on either side of the border, and at the airports, ports and harbours on the islands of Ireland and the UK, in furtherance of the joint ambition of the parties to protect the safety and security of their respective communities. We commend these proposals to the attention of the respective negotiating teams, for their attention and consideration.