Regulatory divergence does not require a hard border between Northern Ireland and the Republic

Regulatory divergence does not require a hard border between Northern Ireland and the Republic

Questions about post-Brexit regulatory alignment of Northern Ireland with the EU has somehow become entangled with the prospect of the reconstruction of a hard border between the Province and the Republic, and this has confused everyone participating in the debate, including the leading decision-makers.

The issue of whether or not a hard border between Northern Ireland and the Republic will ever again be required is a matter for those responsible for customs administration on a day-to-day basis, which in the UK is primarily HMRC. HMRC has been studying the impact of Brexit – including the prospects of no-deal – since just after the referendum and have given evidence on seven occasions to parliamentary Select Committees. On one occasion, in describing how the great bulk of trade that passes through ports was pre-cleared electronically, their Chief Executive, Jon Thompson, pointed out that they physically inspected only 0.5% of imports from non-EU countries.

In his last outing to the Select Committee on Exiting the EU on 28th November, Mr Thompson was questioned specifically about the Northern Ireland border with the Republic, which he described as trade within “a very local economy” to which the normal EU border arrangements could not be applied. Having identified in precise details various ways in which pre-clearance and control over the present invisible and frictionless border could be further improved, he declared: “We do not believe, and this has been our consistent advice to ministers, we do not believe we require any infrastructure at the border between Northern Ireland and Ireland under any circumstances.”

One member started by saying “whatever happens, you’re confident there won’t be any requirement for an infrastructure between Ireland and Northern Ireland?” to which Mr Thompson answered “Yes” before the questioner went on to identify what he hoped would be an intractable problem – smuggling. Like other questions, it also failed to change the main conclusion.

A fellow witness, John Bourne, the Policy Director for Animal Plant & Health at DEFRA, in referring to sanitary and phyto-sanitary issues replied to the Chair’s “how exactly can you achieve no border and no infrastructure?” with “the risk post-Brexit does not change… Is there a problem from our point of view? No.”

Both emphasised, however, that the unknown was the reaction of the Irish Government and the EU. We now know their reaction, an attempt to ensure a regulatory alignment between Northern Ireland and the EU, based on a claim that regulatory divergence would threaten North-South co-operation and the Good Friday Agreement and require a hard border. If this were true, it should indeed halt the UK Government in its tracks, since it is determined to maintain both the North-South cooperation and to avoid a hard border.

Unfortunately, this claim completely disregards the evidence of the Select Committee expert witnesses quoted above, and many others. This Select Committee was split between 12 members who voted Remain and 5 who voted Leave. Against the votes of the 5 Leavers, the Remain majority decided to go ahead and publish a report that made a succession of grossly misleading recommendations and conclusions – such as:

Ministers should now set out in more detail how they plan to meet their objective to avoid the imposition of a border

We do not currently see how it will be possible to reconcile there being no border with the Government’s policy of leaving the Single Market and the Customs Union

In the Prime Minister’s Florence Speech, she said that the EU and the UK “have both stated explicitly that we will not accept any physical infrastructure at the border.” It is not yet evident, however, how this can be achieved given the Government’s stated position to leave the Single Market and the Customs Union

These remarks were immediately quoted by Simon Coveney, the Irish Minister for Foreign Affairs and Trade, to demonstrate that the border issue was still to be solved and used to justify putting further pressure on the UK Government for lack of clarity etc. Had this Select Committee reported honestly and accurately the evidence presented to it, the Irish would have been able to make whatever points they wished about regulatory divergence without raising the spectre of a hard border. They would probably have said little or nothing, since it is only the threat of a hard border which gives the issue any mileage. Much of the public confusion would also have been avoided. The Chair of the Committee, Hilary Benn, then decided to add fuel to the fire in a supplementary to Tuesday’s Urgent Question to David Davis when he erroneously asserted that the reason for the Northern Ireland border problem was because the Government had decided to leave the Customs Union and the Single Market. HMRC and other witnesses could not have been more clear: there is no need for a hard border “under any circumstances”.

The Irish Government’s concern with regulatory divergence curiously seems to have gathered steam with an unpublished ‘mapping’ exercise last summer that found 142 points at which EU membership either “touched” or “underpinned” North-South co-operation. These points covered health, agriculture, tourism, sport, transport, education, energy, telecommunications, broadcasting, justice, security and fishing – indeed just about every economic activity. Pretty soon EU and Single Market membership was converted into one of the foundations stones of the Good Friday Agreement – in which of course the EU played no part whatsoever.

From there it was but a short step to the argument that the Good Friday Agreement will be threatened if Northern Ireland diverges from the rules of the Customs Union or the Single Market, which quite mistakenly was assumed to necessitate a hard border. It was then only a small step further to the argument that the only way to avoid a hard border is to make the Irish Sea the border between the EU and the UK.

It is not difficult to see why this argument, which ignores the constitutional integrity of the UK, was seen by many as a covert move towards a united Ireland, and/or an electoral ploy to help the Irish Government get the better of Sinn Fein. The Irish Foreign Minister has persuasively denied any such intent, so we may now concentrate on the substance of the argument that regulatory divergence between Northern Ireland and the Republic poses a risk to North-South cooperation and the Good Friday Agreement.

If this is so, it would seem to be the responsibility of those making the argument – especially if they do not wish to be confused with the mischief-makers who hope to undo the Good Friday Agreement – to say, first of all, why the numerous current regulatory divergences between the province and the Republic (in the currency, employment law and labour relations, excise duties, VAT, corporation tax, some phyto-sanitary rules, armed forces, and so forth) do not appear to have threatened North-South co-operation over the past two decades, and then to identify some, or even one, of the possible future divergences that might do so.

If one thinks about those EU regulations that have occasionally attracted media attention and which might be candidates for regulatory divergence post-Brexit (say on car emissions, vaping, incandescent bulbs or Dyson vacuum cleaners) it is difficult to see how divergence on these or other product standards would threaten North-South co-operation in the slightest. Perhaps divergence on agricultural products is more likely to do so. Let us imagine, for instance, the UK permitted chlorinated chicken, GM tomatoes or whiskey matured over two years instead of three, or that it decided that the WTO, Canada and the United States were correct, and that there was no health threat from hormone-fed beef or that it decided to regulate more closely the transport of live animals. Is it really the case that one or other of these diverging post-Brexit standards could undermine North-South co-operation? Why? Could Mr Coveney explain?

One thing is certain: divergence on any of these matters will not prompt the reconstruction of a hard border. And once that ultimate much-feared consequence is shown to be a fantasy, regulatory divergences can be discussed calmly and rationally, case by case. In the unlikely event that one of them comes along in future years and is seen to be threatening North South co-operation, it can be discussed like other issues, as a normal part of the business of the North-South Ministerial Council.