Richard North, 22/05/2018  

Predictably – and not just because there is very little else to write about on Brexit – the Irish question is still prominent in the media coverage on matters related to our withdrawal from the European Union.

One of the stranger contributions, though, comes in the Telegraph carrying yesterday's date, written jointly by Owen Paterson as a former Northern Ireland Secretary, and Sammy Wilson, the DUP's Brexit spokesman.

Ostensibly, the pair are seeking to demythologise the Irish border, with the assertion that there is still a border: it hasn’t gone away. It is, the pair say, "a tax, immigration, currency, political, international, excise and security border".

To a very great extent, though, this is a straw man argument. No one sensible (that I know of) is arguing that the border between Northern Ireland and the Republic of Ireland doesn't exists.

The issue is that, for the purposes of free movement of people and goods, it is an invisible border. There are no border controls located on the border, and there is no requirement to submit to checks at the border in order to gain passage from one jurisdiction to another. No law is broken if any person crosses the border at any point, with or without goods which they may or may not intend to sell.

That, however, does not mean that there are no border checks. Unintentionally (for this is not his purpose), a Unionist Councillor, Henry Reilly, is demonstrating this in a series of Twitter posts.

Recently, he has posted two pictures (reproduced above), one showing a mobile checkpoint just across the border from Co Fermanagh, looking for cheap red diesel used (illegally) in private cars and the other a car-load of cigarettes and spirits seized by Irish customs.

Reilly also points out that 1,000 litres of heating oil cost £460 in Northern Ireland while the same quantity costs €710 (or £621.43) in the Republic. An Irish householder bringing in oil from the North would therefore, save £160 but, says Reilly, if Irish customs catch you, "it's big trouble".

The Unionist Councillor uses this to argue that, contrary (he asserts) to the claims that there is no border from of Barnier, Coveney and Varadkar et al, there is in fact a border.

Interestingly, if you go to the former border city of Strasbourg you can see remnants of the border post but in accordance with Union law, there are no longer and borders check between Germany and France – on the border. But one can hardly miss the profusion of cars, almost identical to police cars, but with the substitution of the title Douane.

These are often seen out and about in the interior, their crews setting up mobile check points in lay-bys and motorway service stations, inspecting lorries, mobile homes and the like for contraband. As between the Republic of Ireland and Northern Ireland, there is a "soft" (i.e., invisible) border between France and Germany but there are also checks carried out in the interior.

That is the situation as it currently stands, and it is how all the parties want it to remain. And even where there are visible checks at the borders – as between France and Germany – there is still a lot going on behind the scenes. A great deal is achieved by cross-border cooperation between enforcement systems – something that doesn't, incidentally, require direct EU participation. Swiss-French cooperation, we are told, is "an envied tool throughout Europe".

Back with Paterson and Wilson, they make the point that the Irish border is "not one of Europe’s weightier ones". Sixty-five percent of Ulster's trade, they say, is internal to the province, 20 percent goes to the rest of the UK, and merely percent goes to the Republic. A miserly 1.6 percent of the Republic's exports go north, and only 1.6 percent of its imports come from Northern Ireland.

On this basis, they argue, "vintage border posts from a Tintin illustration aren't needed", asserting that there are "no insurmountable technological problems, only, thus far, political ones". They add: "Not one new, untried technology is required to make this work".

But, as always, they miss the point. Upon Brexit, the Irish land border with Northern Ireland becomes part of the EU's external border. A huge body of EU law, including the Union Customs Code (UCC) and the "official controls" on the movement of animals and products of animal origin, automatically apply.

However, it is not just EU law that is the issue here. As a member of the WTO (along with its Member States), the EU is obliged to apply its border controls equally to all third countries, otherwise it falls foul of the "no-discrimination" rule. And, should it make concessions to the UK – as it is under pressure to in order to maintain an invisible border – it will come under huge press to grant similar concessions to its other trading partners.

It is this point that consistently escapes the understanding of British politicians. Any solution found for the Irish borders must be unique to Ireland, in such a way that it cannot be used as a precedent by the EU's other trading partners. It cannot be rolled into the general trading agreement with the UK or it becomes leverage for all the other countries which would like to see EU border controls reduced.

And here we see, at last, an intervention from the Freight Trade Association in Northern Ireland. During a hastily arranged visit to Northern Ireland by Brexit secretary David Davis, they have told him that the high tech "max-fac" proposal, which would include the use of tracking devices on lorries crossing the Irish border, would be "pointless".

Knowing when a lorry crossed the border would serve no purpose. "A haulier could lift a full trailer in Birmingham but it could contain 40 different consignments from 40 different producers. Then it comes to Northern Ireland and is broken down with mixed loads on different trucks going to different places, so a tracking device telling you the original truck had crossed a border doesn't tell you anything", says Seamus Lehany, head of the Freight Trade Association in Northern Ireland.

He also told Davis that "customs was only the tip of the iceberg and the biggest problem was sanitary and phytosanitary checks on agrifood. Twenty percent of meat has to be checked and 50 percent of chicken". In fact, every vehicle carrying foods of animal origin has to be presented to a Border Inspection Post for a documentation check, and the level of inspection of cargoes could be increased if suggested by a risk assessment.

Intriguingly, the FTA also pointed out that an invisible border raised the prospect of Northern Ireland becoming a smuggler's paradise for goods that were cheaper in the UK – exactly the reason for the checks to which Councillor, Henry Reilly drew our attention.

"If TVs are cheaper in the UK, for example, they can come over to Northern Ireland [and] next thing they are in Dublin and in no time at all in France. The EU won't tolerate that", says Lehany.

Preventing smuggling can be achieved by beyond the border measures, as we see currently, but that requires a high level of police and customs cooperation. But if the Swiss feel the need to use fixed customs posts at their borders, augmented by mobile patrols, the Irish on both sides of the land border will need to make an extremely robust case if the EU is to accept that the border can remain invisible.

And this leaves Paterson and Wilson in the land of the fayries. They invoke the Good Friday Agreement, asserting that its point "was to respect the border, and leave the choice about its future solely, democratically and peacefully to the people of Northern Ireland".

That can only apply as long as the line was an internal border between EU Member States. But once the UK leaves and it becomes part of the EU's external border, the full EU regime must apply unless the UK is prepared to accept that a "special status" must apply to Northern Ireland.

How the UK handles that is its business but the EU's stance does not in any way, as the pair assert, disrespect the Good Friday Agreement. Rather, as Alex Massie, in The Times writes, "Brexiteers are treating Ireland with contempt".

There is a perception widely felt in Ireland that there is a whiff of "Know your place, Paddy" to these complaints about the Irish, he says. "Forelocks are there for the tugging since the Irish are only a tiny people, after all, and a country as important as the United Kingdom cannot reasonably be expected to truckle to Dublin. On the contrary, it should be the other way round".

That Ireland, with the support of the EU, is calling the shots, and the UK is having to tailor its own plans to this reality, is not something with which the likes of Paterson and his ERG colleagues have come to terms.

Instead, we get the utterly moronic John Longworth arguing for the crash and burn WTO option, then suggesting that "we would leave the border in Ireland as it is now, soft and sensible".

He adds: "If the Republic of Ireland is fool enough to put a hard border on its side, that is its choice and it bears the consequences. Under WTO, Irish beef will have to compete at world prices. The Irish economy would be the loser, sadly and totally unnecessarily".

The Longworth view is that if the UK takes such a robust stance, "the chances are that the EU would come running for a quick Canada-style trade deal". And even if it didn't, he says, "it would still constitute a better outcome than the one we are currently heading for. There would be some short-term disruption but after that there would be a massive gain".

So, on the gamble that the EU would "come running" and that the disruption would only be limited, and "short-term", he would have us desert the negotiations and trust that things work out.

If this goes on, it would seem that trying for an invisible border will be the least of our problems.

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