Brexit and the Border

Posted on 09 Jan 2017 by Brick Court

David Anderson QC has spoken in Belfast to the Irish Centre of European Law (and thereafter to the Northern Irish judges) on the subject of Brexit and the (Irish) Border.  His talks were given on 13 December, the day after the publication by the House of Lords European Union Committee of its report into UK-Irish relations after Brexit.  His PowerPoint presentation is here and a detailed summary of his presentation follows later in this blog post (click ‘continue reading’ below).

Derrick Wyatt QC also spoke at both events, addressing the issue of what happens when the UK triggers Article 50? Derrick spoke about negotiating the withdrawal agreement, possible future trading agreements between the UK and the EU, what might happen with a “hard Brexit” which could fall off a cliff at the end of the 2 year negotiating period, and the particular effects of all of this on Northern Ireland. His paper is here.

Margaret Gray also addressed both events, speaking about potential Brexit Litigation Issues in Northern Ireland. Margaret discussed the potential subject-matters where EU law issues could continue to arise during and after a withdrawal and how there could be unique litigation opportunities for NI citizens and companies over the next few years as the UK’s new relationship with the EU is developed. She also addressed the issue of how state liability for breaches of EU law could continue to be a source of litigation for sometime after a UK departure from the EU. Her paper is here.

Brexit and the Border: David Anderson QC’s presentation

The UK-Irish Border

David started by recalling the nature of the border (twice the length of the English-Welsh border and three times the length of the English-Scottish border, with nearly 300 formal crossing points and many informal ones).  There are up to 30,000 cross-border commuters daily, and EUR 60bn p.a. in two-way trade.  Yet there are currently no routine impediments to the movement of persons, and no duties or customs checks on goods.

Whilst there might in theory be security benefits to a fully-defended border (e.g. in preventing persons who jump bail in Northern Ireland from travelling to the South), it is generally agreed that even if it were practicable, a hard border should be avoided on security grounds (because of the focus for grievance that it would represent), for its possible impact on the peace process, and for the disruption it would cause to economic exchange and to the quality of life.

Movement of persons

The history of the common travel area – the special travel zone that operates between the UK, Ireland, Channel Islands and Isle of Man – was summarised.  Since its establishment in 1922, the CTA has enabled UK and Irish nationals to travel freely to each other’s countries.  These arrangements are permitted by Protocol 20 to the TFEU and there seems to be no reason why they should not be continued after Brexit.

But as the twists and turns of the CTA have shown over time, it has depended for its survival on significant policy coordination and practical cooperation between the UK and Ireland where non-UK and Irish nationals are concerned.  Thus, the controls in place between 1939 and 1952 on Irish Sea crossings were lifted only when Ireland and the UK agreed to operate similar immigration policies.

Such coordination and cooperation have been achieved in recent years where third-country nationals are concerned (e.g. by visa data exchange, and joint visa schemes for India and China, introduced in 2014).  Where EU nationals are concerned, the free movement rules in the Treaty have rendered such coordination largely automatic.

But this will change after Brexit, assuming that the UK will wish to impose (at the least) significant barriers to the entry of non-Irish EU citizens.  With a hard border across the island of Ireland ruled out, new thinking is needed.  But none of the alternatives seems wholly practical, or palatable.  Thus:

• Even if Ireland (and the EU, whose permission will ultimately be necessary) could stomach additional checks for UK immigration purposes on those arriving (for example) on a plane from Warsaw to Dublin, such checks will not in themselves be enough to prevent the incoming Polish citizens from crossing an undefended border to Northern Ireland (and thereafter, should they wish it, from boarding a plane or ferry in Belfast for Great Britain).
• It might be possible (as the House of Lords Committee suggested) to negotiate for Northern Ireland a special status in which a low level of cross-border movement by EU nationals is accepted.  But a corollary of this would surely have to be immigration checks on the domestic sea and air routes between Northern Ireland and Great Britain: a step which was itself described by the House of Lords Committee as “politically divisive and inherently undesirable”.  Both parts of this solution would be especially controversial with loyalists in Northern Ireland, since it would bring the North closer to Ireland for immigration purposes, while emphasising its separateness from Great Britain.
• If neither the Irish-NI nor the NI-GB “borders” can be fully defended from an immigration point of view, it would presumably be necessary to resort to more effective in-country immigration checks, possibly involving the cooperation of employers, landlords, medical and educational professionals in searching for EU national “illegals”, or the use of intrusive technology for surveillance.

Movement of goods

Greater even than the problems posed by the movement of persons are those posed by the movement of goods – unless of course the UK remains inside both the single market and the customs union.

If a “soft Brexit” is negotiated, involving membership of the single market but not of the customs union, duties will be payable at the Irish border on exports from the UK of non-UK origin goods, and perhaps also on agricultural goods.  The opportunities for smuggling, which is currently limited largely to excise goods, will increase markedly.  While approved carrier schemes and pre-screening arrangements will no doubt form part of the solution, it is difficult to see how some form of hard border could be avoided.

The situation of Norway is instructive, as described in a fact-finding report in The Times from October 2016.  In the single market but outside the customs union, Norway operates automatic number-plate recognition on each of its 80 road crossings to Sweden, and designates some of them as “green lanes” which are closed to dutiable goods.  (There were, similarly, approved crossing points and crossing times in force at the Irish border pre-1973).  But commercial vehicles are also obliged to stop at customs stations to make a declaration (occupying on average 8 minutes, even though Norway and Sweden have been able to negotiate dual controls).  There are spot checks, X-ray facilities and warehouses for contraband at the border, and occasional 30-minute tailbacks are reported where there is intelligence of smuggling operations.

If a Canada-type FTA arrangement is negotiated,  the UK will be outside the single market as well as the customs union.  There will thus be further reasons for border checks including food safety, plant safety, pharmaceutical safety and packaging rules.  This would also be the case, of course, in the event of a truly hard Brexit in which trade would continue on WTO terms.

Conclusion

Two final points bear thinking about.

First, it is the EU that will have the final say over any special arrangements that it might be sought to negotiate with Ireland.  The EU has invested heavily in the peace process, and one hopes that it will not be unreasonable in its demands.  But it has a responsibility to defend its external tariff wall, which does not seem feasible without some kind of border checks on the movement of goods.

Secondly, there is the timing of change to consider.  Those who decry the need for a transitional period after March 2019 need to think about how long it would take, once an agreement has been reached, to install the infrastructure, write the software, recruit the customs officers and train them to deal with whatever solution is negotiated for goods.  Work will also be required in relation to the movement of persons, whichever solution is adopted.

Almost anything can be achieved with ingenuity and good will.  But it is hard to disagree with the view expressed by the current Prime Minister, on a visit to County Down two days before the referendum, that:

“it is inconceivable that a vote for Brexit would not have a negative impact on the North/South Border, bringing cost and disruption to trade and to people’s lives.”