Friday 31 August 2018

What Northern Ireland thinks

Northern Ireland (NI) has become the central and defining issue for Brexit. The proposed NI backstop in the UK’s Withdrawal Agreement is likely to define and constrain the UK’s future relationship with the EU, or risk separating NI from Great Britain (GB) with a customs and regulatory border in the Irish Sea.

Sadly, the NI assembly has not been sitting for over 500 days, so NI democratic consent is missing from the whole debate over the NI backstop. Given that NI democratic consent is the cornerstone of the Good Friday Agreement (GFA), this is tragic and potentially a danger to peace.

So we are left with opinion polling to guage NI public opinion on this matter. Polling undertaken by Queens University Belfast was forwarded to me by a Remainer / Irish nationalist. The report was highly enlightening, but perhaps not in the way the sender intended.

NI/RoI border questionnaire

Firstly, let’s take a look at the questions that were asked regarding what would be acceptable for a future NI/RoI border.

Some of these questions are seriously eyebrow raising:
  • Military personnel at customs checkpoints ?
  • Travel across NI border: Produce passports; Log travel plans in advance; Photo taken, fingerprinting at the border ? The existing Common Travel Area (CTA) arrangements will remain unchanged and there is surely no realistic prospect of such restrictions.
  • Border checks that would add 30 minutes to your journey ?  Cars are not subject to border checks in NI/RoI today despite the existing excise border & associated smuggling. The same applies to Norway & Switzerland’s border with the EU - cars are generally allowed to pass subject to occasional spot checks for excise duty.
Does anybody seriously think these scenarios are going to happen ?  This smacks of scaremongering by those conducting the survey.

NI views on border with RoI

So lets look at the responses to these questions: 


Just 15% would find ANPR/CCTV cameras along the border “almost impossible to accept”. Not quite the level of opposition often portrayed. In any case, it is widely accepted that trying to cover every one of the 300+ crossing points with cameras is impractical - so the (low) level of outright opposition is a moot point. Existing cameras on main N-S road seems not to be a problem and will obviously stay.  Adding cameras to the handful of N-S roads used by freight might help in tracking legitimate freight movements. I suspect in a few years no-one will care about a few cameras on the handful of main N-S roads carrying freight. In any case, the current thinking is to put technology inside trucks, i.e. smartphone app + GPS tracking - making the concerns RE cameras & drones redundant.

The main finding of interest is the 40% who find "checkpoints with customs officials" almost impossible to accept. No surprise that there is significant opposition to a  “hard" border. Customs processing undertaken electronically with any required consignment checks undertaken away from the border (i.e. a "soft" border) would not require manned checkpoints at the border - so would not fall foul of this opposition.

NI views on border with GB

Responses on potential outcomes for an NI-GB border are revealing.


The first question shows about a third opposed to the idea that Free Movement of EU citizens should vary between NI and GB. In practice, post-Brexit UK will likely continue to offer visa-free travel to EU citizens post-Brexit, but residency & employment rights will be subject to an independent UK regime, applying equally in  GB & NI. Regarding Irish citizens, the CTA & 1949 Ireland Act will continue to apply.

The remaining 3 questions pertain to NI being in a separate regulatory, customs or jurisdictional regime to GB:
  • More than 40% find  it “almost impossible to accept” the European Court of Justice (ECJ) having jurisdiction in NI, but not GB. This is higher than the level of opposition to "checkpoints with customs officials" on the NI/RoI border. 
  • Almost half reject a different regulatory regime for NI which leads to trade barriers with GB. 
  • Even more striking is the almost 2/3 opposition to customs duty being applied on GB-NI trade, with over 60% of catholics opposed. An Irish Sea Customs border is a complete non-starter.
These findings ought to be a killer for the EU’s proposed NI backstop. The levels of opposition to the key tenets of the backstop (ECJ, Single Market/Customs Union in goods applying to NI only) are higher (much higher in the case of an Irish Sea Customs Border) than opposition to a “hard” NI/RoI border (i.e. customs checkpoints on the border).

The report finds lower opposition to customs checks at the NI-GB border (just under 30%) compared with customs checks at the NI-RoI border (40% opposition). But there is also recognition of the importance of trade with GB (which dwarfs Trade with a RoI or the rest of the EU), notably among the Catholic & Leave communities. The NI border question encompasses economic as well as national identity questions.

Conclusion

While it is generally accepted that customs checkpoints on the NI/RoI border are unacceptable, it is perhaps less well understood that placing NI in a separate customs, regulatory & jurisdictional regime (as per the EU’s proposed NI backstop) is even more strongly opposed by NI public opinion.

Of course Remainers will insist that the only way to resolve these concerns is for the whole UK to stay in the Single Market & Customs Union, a.k.a. BRINO (Brexit in name only). But it should be noted that the Withdrawal Agreement commits to an NI-only backstop and provides no guarantees of a future UK-EU agreement - the implied NI-GB Border ought to make the NI backstop proposal a non-starter.

As noted in the December phase 1 progress report, the UK is committed to no “hard” border with RoI (para 43), but that cannot be at the expense of the integrity of the UK, it’s internal market or NI’s place within it (paras 44 & 45). So consistent with NI public opinion, there is a need for a “soft “ border solution, i.e. NI outside the Single Market, Customs Union & jurisdiction of the ECJ, while avoiding customs checkpoints on the border with RoI. 

A “soft” border solution should be based on cross-border co-operation and pragmatic working arrangements, brokered via N-S co-operation under the GFA (as per my recent post. A solution that covers trade in goods (agricultural & manufactured) and accounts for differing customs/tariffs regimes. My next series of posts will examine how such a “soft” border could work.

Saturday 11 August 2018

Breaking the impasse (part 3) - Respect the Good Friday Agreement

There's a lot of tosh spoken about the Good Friday Agreement (GFA), including by our own prime minister Theresa May. There is no reference to an all-island economy. There is no commitment to avoid a customs border. There is no mention of customs at all. The only commitment on borders is the removal of military installations (completed some years ago).

Principle of Consent

However, the GFA does establish the "principle of consent" for the people of Northern Ireland (NI) :
"acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;"
Some (nationalists) have argued that NI leaving the Single Market & Customs Union is a change in the status quo which breaches the principle of consent. But the actual wording in the GFA (see above) is clear that the principle of consent applies to "Northern Ireland’s status as part of the United Kingdom", not to NI's status with respect to the EU or the Republic of Ireland (RoI).

The EU's current NI-only backstop proposes NI remains part of the EU's Single Market and Customs Union (for goods only) subject to ECJ jurisdiction, creating a customs, regulatory and jurisdictional border with Great Britain (GB). This clearly separates NI from GB in order to facilitate close ties with RoI. While this is not a full constitutional sundering of NI from GB, it is an obvious weakening of NI's place in the United Kingdom and its internal market, which ought to require the consent of an NI majority.

No Deal, No Hard Border

So the GFA does not prohibit a "hard" NI/RoI customs border, nor would the GFA principle of consent (of NI majority) apply to such a border. Nonetheless, all parties see the sense in avoiding a hard NI/RoI customs border.

The UK Government has steadfastly insisted it will not install infrastructure to create a hard border under any circumstances. It has been recently reported that "a working group of senior UK government officials is being convened to devise ways to keep the Irish border free of customs checks and police even if there’s no withdrawal agreement". EU President Juncker & Irish Taoiseach Leo Varadkar have both confirmed that in a "No Deal" scenario, there would be "no physical infrastructure and customs checks on the Border". So even in a No Deal scenario, no-one is going to erect a hard border.

So how would "No Deal, No Hard Border" work ? Quite simply, both sides will collect tariffs/duties and apply customs controls away from the border:
  • Importers will be audited and required to submit regular accounts of trade (as they are today for VAT-based INTRASTAT returns used to collect intra-EU trade statistics)
  • Market surveillance will check goods placed on the market for regulatory compliance. Even today there is regulatory divergence between North and South where UK specifies more stringent safety tests on top of EU's harmonised CE standards (e.g. fireworks, sofas etc), meaning some products that are legal in the South may be illegal to market in the North.
  • Intelligence-led customs/police interventions will target contraband and counterfeits (as per today) and sources of non-compliant goods.
The GFA emphasises and promotes cross-border co-operation between the two jurisdictions (emphasising that there is a North-South jurisdictional border). Specifically, the GFA establishes a North-South ministerial council with designated areas of co-operation. Building on existing strong cross-border co-operation will be crucial to achieving "No Hard Border":
  • Sanitary & Phyto-Sanitary (SPS), i.e .animal and plant health, is already designated as an area of co-operation under the North-South ministerial council and could provide the basis for an all-Ireland SPS inspection regime. 
  • Co-operation on market surveillance (spot checks on goods on the market for regulatory compliance) is currently covered via membership of the Single Market, but post-Brexit should be covered under GFA cross-border co-operation.
  • Joint police/customs interventions are undertaken today against smuggling (contraband, counterfeits, avoiding excise duty etc.). 
GFA as basis for NI customs border agreement

If there is to be an agreement on the NI customs border, it seems logical to establish a North-South customs border management body, building on existing cross-border co-operation. This body would be democratically accountable to the two political jurisdictions (North and South), using existing political infrastructures, i.e. the North-South Ministerial Council and British-Irish Council established under the GFA.

Incorporating an NI/RoI customs border agreement into the GFA would also bring other benefits :
  • WTO will be able to recognise the politically sensitive NI/RoI border as an exception to WTO MFN non-discrimination (which might otherwise require the EU and UK to keep all their borders as open as NI/RoI "No Hard Border"). 
  • Most importantly, the principle of NI consent becomes central. NI could voluntarily choose to align with RoI in the interests of "No Hard Border", or NI could choose to decline such alignment, if the result is an NI-GB hard border that significantly impacts trade.
The UK should support NI in whatever arrangements it chooses to make with RoI, for example if NI consents to "technical checks" on goods crossing the Irish Sea in order to facilitate "No Hard  Border" with RoI. NI goods could still enter GB without checks on the basis that UK Government trusts its own (NI) inspectors (both market surveillance and SPS). In fact, as a "cherry-on-top", GB could offer to accept RoI goods without checks, by virtue of UK (NI) inspectors involvement in North-South border management bodies. Such an offer would be on the express understanding that it does not extend to EU-26 goods.

The EU should also regard the NI border as an exception, delegating control fully to RoI with freedom to make arrangements via GFA institutions/bodies to achieve "No Hard Border". Provided such arrangements prove sufficiently robust, the EU should leave customs border arrangements to the players on the ground rather than insist on a rigid application of EU customs law. As a safeguard, the EU could impose "technical checks" on goods crossing the Celtic Sea (i.e. between RoI and France/EU-26), if any concerns arise and persist over integrity Single Market / Customs Union integrity.

The EU should also allow RoI to recognise NI as "equivalent" with RoI via North-South border management bodies, which would allow NI manufacturers and economic operators (in aligned sectors) to be recognised as operating within the single market. The Swiss are recognised as equivalent in much the same way via EU-Swiss joint committee - without requiring direct application of EU law or ECJ jurisdiction. Such an offer would be on the express understanding that such equivalence does not extend to GB manufacturers and economic operators.

The major hurdle to this approach is the current suspension of Stormont and power sharing arrangements. The opportunity to shape the debate around the future border arrangements should be incentive to resume Stormont's government. At the very least, Stormont should be convened for the specific purpose of addressing the customs border and/or a North-South border management body should be instituted. Any parties unwilling to participate would sacrifice the right to a voice.

Conclusion

Despite the tosh spoken about the GFA, it is the EU's NI-only backstop proposal which threatens the status of NI within the United Kingdom and its internal market and so threatens the GFA settlement. No self-respecting UK Government should even contemplate signing the Withdrawal Agreement while it mandates economic and judicial borders within the UK.

In fact, the GFA does not mandate "No Hard Border" for NI/RoI. However, via the GFA, NI consent can be expressed and cross-border co-operation enhanced to manage a "soft" NI/RoI border. The withdrawal agreement should be revised to put the GFA and NI consent front and central.

In short, instead of weaponising the GFA and the NI customs border issue, it's high time politicians respected the GFA and built an NI customs border solution based on it.