Brexit and the Irish border

In 1922, the Irish Free State[lower-alpha 1] formally seceded from the United Kingdom as a self-governing dominion under the terms of the Anglo-Irish Treaty, setting the stage for full national independence, while Northern Ireland remained part of the United Kingdom. Consequently the dividing line between these two parts of the island became an international border. Trade in goods and services across this frontier became subject to differing tax and tariff arrangements and an infrastructure of customs posts was put in place at designated crossing points. All traffic was subject to inspection by the jurisdiction it was entering. This could entail full vehicle searches with consequent delay and inconvenience. However, passport checks were not applied because the Republic of Ireland and Northern Ireland were part of the Common Travel Area.

A number of bilateral and multilateral free trade agreements made goods checks less intrusive; the completion of the European Single Market in 1992 meant that checks on goods were phased out. However, during the Troubles in Northern Ireland, there were British military checkpoints on main border crossings and UK security forces made some, although not all, of the remaining crossings impassable. In 2005, in a phased implementation of the 1998 Good Friday Agreement, the last of the border checkpoints was removed.[1]

Since about 2005, the border has been perceived as being invisible, with little or no physical infrastructure, as the security barriers and checkpoints were removed due to processes put in place by the Good Friday Agreement (or 'Belfast Agreement') signed in 1998.[2][lower-alpha 2][3] This agreement has the status of both an international treaty between the United Kingdom and the Republic of Ireland (the British-Irish Agreement), as well as an agreement of the parties within Northern Ireland (Multi-Party Agreement).

Following Brexit, the border between Northern Ireland and the Republic of Ireland will become an external EU border.[4] In theory, a "hard" border could return, with both fewer and supervised crossing posts, to support the necessary customs infrastructure.[5] Both EU and UK negotiating teams made clear that this outcome would not be acceptable in any final exit agreement.[6][7]

US Senator George Mitchell, who chaired the negotiations for the Belfast Agreement, has commented that he believes the creation of a border control system between the Republic of Ireland and Northern Ireland might jeopardise the agreement.[8] Research published on 18 February 2019 by Irish Senator Mark Daly and two UNESCO chairmen indicated that reinstating a hard border would result in the return of violence.[9][10][11][12]

In the June 2016 United Kingdom European Union membership referendum, Northern Ireland voted 55.8% to 44.2% in favour of remaining in the European Union. In a November 2018 opinion poll commissioned by BBC Northern Ireland and RTÉ (Republic of Ireland), 61% of those polled believed that Brexit should not go ahead if the price is a hard border (versus 36% that it should, 3% don't know).[13]

External EU frontiers under different trade and customs regimes. All are "hard borders" in this context.

Norway–Sweden border (European Economic Area, selective border control and random customs checks. Both in Schengen Area and Single Market.)

Germany–Switzerland border (EU–CH treaties, no border control, but random customs and immigration checks. Both in Schengen Area and Single Market.)

Bulgaria–Turkey border (EU-TR Customs Union (partial), full border and customs control, visa required for Turkish nationals)

Poland–Ukraine border (Deep and Comprehensive Free Trade Area, full border and customs control, visas may be required).

In the context of Brexit, a "hard border" means one where there is a limited number of authorised (and physically controlled) crossing points, staffed by customs officers and police, supported in times of tension by military forces.[14] Drivers of vehicles crossing are required to declare goods in carriage, commercial carriers must produce bills of lading and evidence that the goods comply with the minimum standards of the territory being entered. Tariffs (in the form of customs duty) may be payable.[15] This was the position that pertained on the border from 1923 until the Single European Act in 1993.[16] (In this context, a "hard border" does not mean a fortified border but, during The Troubles, British security forces blocked many unapproved crossings for security reasons. Under the terms of the Common Travel Area agreement, British and Irish citizens are free to cross the border without any passport controls).

The UK government has said that Brexit will not mean a return of the hard border.[17] According to statements in 2016 by the then UK Prime Minister Theresa May and Irish Taoiseach Enda Kenny, it is intended to maintain this arrangement after the United Kingdom leaves the EU.[18]

In September 2016, the (then) UK Brexit Secretary, David Davis, stated that the UK government would not seek a return to a hard border between the UK and the Republic of Ireland.[19]

In October 2016, The Guardian reported that British proposals to avoid a hard border, by 'seeking to shift the frontline of [British] immigration controls to Ireland’s ports and airports',[20] had received "signals [of] support" by some members of Enda Kenny's government.[21] However, by 2017, a spokesperson for the new Irish government, under Leo Varadkar, stated that these reports had been "misinformed", and that there was "no question of UK officials acting as border agents in Ireland".[22][23]

In its white paper on Brexit, the United Kingdom government reiterated its commitment to the Belfast Agreement. With regard to Northern Ireland's status, it said that the UK government's "clearly-stated preference is to retain Northern Ireland's current constitutional position: as part of the UK, but with strong links to Ireland".[24]

The Irish Government position has been to reduce public mention of border checks to avoid confrontation with opposition parties in the Dáil and to calm nationalist and unionist concerns in Northern Ireland. Repeated statements have been made by senior politicians in government denying plans are being made for a hard border.[25] Concerns have been raised by opposition parties that the government is not being forthright about the risk of, and planning for, a hard border.[26] A private admonishment by Tánaiste Simon Coveney of Minister for Transport Shane Ross in the wake of a press conference was caught on the live microphones. In reference to border checks, Coveney stated, "We can’t get into where they’ll be at this stage. They could be in the sea. They could be...but once you start talking about checks anywhere near the border people will start delving into that and all of a sudden we’ll be the Government that re-introduced a physical border on the island of Ireland".[27]

In a February 2019 Sky Data poll, 79% of respondents supported the Irish government holding out for a legal guarantee that there will be no hard border, even if it risks a no-deal Brexit on 29 March. In the same poll, 81% supported cutting economic ties with the UK if forced to choose, with 19% supporting cutting ties with the EU in favour of the UK to maintain the open border.[28]

A Sinn Féin demonstrations against a hard border. Post-Brexit border controls are a controversial issue

There have been worries among unionists that the Irish government's position is a covert attempt to gain more power over the province in order to promote a united Ireland,[29] a position the Irish government has denied.[30] The Democratic Unionist Party (DUP) opposes a hard Irish border[31] and wishes to maintain the Common Travel Area.[32] The DUP was the only major NI party to oppose the Good Friday Agreement in 1998.[33]

A referendum on the reunification of Ireland was suggested by NI Sinn Féin leader Martin McGuinness immediately after the UK EU referendum results were announced,[34] a stance reiterated by the new party leader Mary Lou McDonald in 2018.[35]

A week after the Brexit referendum the then First Minister of Northern Ireland, the DUP's Arlene Foster and Deputy First Minister Martin McGuinness issued a joint letter in which they said that the border must not become a catalyst for illegal activity or create an incentive for those who wish to undermine the peace process.[36]

In April 2017, the European Council agreed that, in the event of a united Ireland, Northern Ireland could rejoin the EU under Ireland's existing membership.[37]

In January 2019, German foreign minister Heiko Maas urged British MPs not to let the UK leave the EU without a deal, saying that "some people call us stubborn, but the truth is avoiding a hard border in Ireland is a fundamental concern for the EU, a union that more than anything else serves one purpose – to build and maintain peace in Europe".[38] Nevertheless, the European Commission's chief spokesman Margaritis Schinas stated on 23 January that it is "obvious" that there would be a hard border were the United Kingdom to leave the EU without a deal.[39]

In April 2019, former WTO director-general and European trade commissioner Pascal Lamy said that "staying in a customs union after Brexit won't resolve the Irish border issue... Leaving the single market reintroduces a border – the thickness of which depends on the degree of regulatory divergence."[40]

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In the withdrawal negotiations, the Irish border issue was one of three[lower-alpha 3] areas that required a dedicated negotiation stream so as to achieve the withdrawal agreement that is required before the future relationship between the UK and EU can be agreed.[41][42][43] The Irish and UK governments, as well as EU representatives, have stated that they do not wish for a hard border in Ireland, taking into account the historical and social "sensitivities" that permeate the island.[44]

Michel Barnier, the EU chief negotiator, indicated that he would look to the United Kingdom and Ireland for "solutions" to threats posed to Ireland's trading links, the Common Travel Area, and the Good Friday Agreement.[45] Denying UK media reports that Ireland expects the effective border to become the Irish Sea, Irish Minister for Foreign Affairs Simon Coveney said that "the onus was on British officials to come up with an imaginative solution but [the Irish Government] would not support a proposal which would see a hard border return on Ireland".[46]

The Irish backstop was a protocol in the (rejected) 2018 draft of the Withdrawal Agreeement, that would have kept the United Kingdom (in general) in the European Union Customs Union and Northern Ireland (in particular) in some aspects of the European Single Market, until a solution is found to prevent a hard border. This was so as not to compromise the Good Friday Agreement[47] and to maintain the integrity of the European Single Market. This would have come into operation only if there were no other solutions by the end of the (agreed) transition period.

The Irish government supported the proposal.[48] It had been strongly opposed by the Democratic Unionist Party as weakening Northern Ireland's place within the United Kingdom and is regarded as the main reason why Theresa May's withdrawal agreement was never approved by the British Parliament.[49] The UK Parliament had already rejected an earlier proposal.

In October 2019, the UK and the EU negotiators reached agreement on a revised protocol (see below) which resolved many of these issues by having Northern Ireland leave the EU de jure but with a de facto border between islands (Ireland and Great Britain).

In 1922, the United Kingdom and the newly established Irish Free State concluded a Common Travel Area (CTA) agreement. This gave British and Irish citizens the right to travel, live and work in either jurisdiction. Passport controls are not applied to travel between them. The freedom of movement provisions arising from membership of the EU to some degree superseded it, but the parties continued to keep their bilateral Agreement alive, despite its having no treaty status. In 2011, the British and Irish Governments agreed informally to continue their common controls on entry to the CTA for non-EEA nationals.[50]

In September 2018, the British government guaranteed that free movement of EU citizens across the UK–Ireland border would continue.[51] It was suggested that the Norwegian model might be used.[52] Along the Norway–Sweden border, major road crossings have customs control where all lorries are checked, but cars only occasionally, and on minor border crossings there is only video surveillance where lorries can pass with permission and pre-clearance.[53]

Former UK Prime Minister John Major has argued that Brexit might lead to a hard border since the European Union and the UK need to control their borders for customs purposes.[54] The European Research Group faction of the Conservative Party believes that the UK might have the choice between not controlling its border if VAT is not enforced, or controlling the border in order to apply possible VAT on imported goods post-Brexit.[55][56]

In late October 2018, the National Audit Office warned that it was already too late to prepare the necessary Irish border security checks in the event of a no-deal Brexit in March 2019 – a weakness that organised crime would be quick to exploit.[57]

In March 2019, the UK government announced that it would not perform customs checks at the Irish border after a no-deal Brexit.[58] The plan was quickly dubbed a "smuggler's charter",[59][60][61][62][63][64] and criticised for likely breaching WTO rules.[59][61][64][65][66][67][68][69] Local businesses expressed severe concerns.[70]

On 17 October 2019, a revised withdrawal agreement that replaced the backstop with a new protocol was agreed by the EU leaders and Boris Johnson.[71][72] In essence, this draft would de facto keep Northern Ireland in the EU Customs Union and Single Market for goods (including adoption of EU VAT) whilst allowing Great Britain to diverge. In December 2019, the UK Labour Party announced that it had obtained a HM Treasury paper using the Freedom of Information Act 2000 that appears to show that the Prime Minister's draft agreement would require some kinds of customs controls in both directions between Great Britain and Northern Ireland.[73]

The border reaches the sea at two inlets: Lough Foyle in the northwest and Carlingford Lough in the east. In the century since Ireland became independent, it and the UK have never defined where in those channels the border is. Both inlets are fished by boats of both nations.[74] During Britain's EU membership there was no need to resolve the issue, as the Common Fisheries Policy (CFP) gave all EU member states the rights to fish in each others' waters, and neighboring states further had the right to fish within 12 nautical miles of each others' coasts, in certain areas.[75]

After Britain fully exits the EU, the CFP will no longer apply to its waters; the UK will, under the United Nations Convention on the Law of the Sea, have sole control over who it allows to fish its waters.[74] Many British fishermen strongly supported Brexit with the goal of leaving the CFP and what they considered to be the extreme favoritism it showed fishermen from other countries, who in many cases depend on the rich fisheries around the British Isles for species much sought after in their markets but disdained by most British consumers. They want the British government to fully exercise this power and limit, or bar outright , all EU boats from their waters, until a deal favorable to them is reached.[76]

Irish fishing port of Greencastle, seen from Magilligan Point in Northern Ireland

If Britain were to exercise those rights after a no-deal exit, any prohibition from its waters, and what Britain claims them to be (which could theoretically include the entirety of both inlets), would apply to fishermen from Ireland, as an EU member state. In those two loughs that could effectively serve to completely cut off some from the grounds they have fished for their entire lives. "Can you imagine telling fishermen from Greencastle that they can no longer fish outside their back door?" asks Sean O'Donoghue, head of the Killybegs Fishermen's Organisation, alluding to an Irish port in County Donegal at the mouth of Lough Foyle, a half-mile (800 m) across the water from British Magilligan Point.[77]

Cooperation exists between the UK and Ireland on health matters, including the mutual recognition of qualifications. The Northern Ireland branch of the British Medical Association warned that a hard border "could risk patient care".[78] The CEO of Cooperation and Working Together, a body that organises cross-border cooperation in health matters, suggested that the Norwegian model might be used.[78] Along the Norway–Sweden border and other Nordic borders there is some cooperation on ambulance and helicopter pickup and on child birth clinics and some more, but otherwise health care is separated.

Article 7 of an EU insurance directive deals with national measures concerning vehicles normally based on the territory of third countries:

Each Member State shall take all appropriate measures to ensure that vehicles normally based in the territory of a third country which enter the territory in which the Treaty is in force shall not be used in its territory unless any loss or injury caused by those vehicles is covered, in accordance with the requirements of the laws of the various Member States on compulsory insurance against civil liability in respect of the use of vehicles, throughout the territory in which the Treaty is in force.

Lars Karlsson, former director of the World Customs Organisation and deputy director general of Swedish Customs, proposed how such a 'Smart Border 2.0' might operate.[84][85]

The information technology division of Fujitsu is reported as having pitched an artificial intelligence solution that would analyse social media posts.[86] Fujitsu said that the report in The Sun was incorrect to claim that the technology involved automatic number plate recognition cameras on a restricted number of authorised border crossings.[86] A spokesperson for the Department for Exiting the EU said that "this proposal was not taken forward as it does not work for the unique circumstances of the Northern Ireland border".[86]

According to the UK's implementation plan (July 2020), a system for checks on goods crossing from Great Britain to Northern Ireland will need three types of electronic paperwork, as detailed in an eleven page document.[97]

On 8 December 2020, UK Cabinet Office minister Michael Gove announced that the UK government would withdraw all controversial clauses from the Internal Market Bill. Gove and Vice-President of the European Commission Maroš Šefčovič announced "an agreement in principle" on all issues of the Brexit withdrawal agreement, including the protocol on Ireland and Northern Ireland, border checks, food and medicine supplies and "clarification" on state subsidy rules.[98]

The de facto border between Great Britain and Northern Ireland bore criticism from Lord Empey, the Ulster Unionist Party’s chief negotiator during the Good Friday Agreement and former Stormont minister. He described the border on the Irish Sea as "the most significant change that has taken place since partition"[99] and that "Northern Ireland’s centre of gravity could gradually move in a Dublin/Brussels direction. This cannot be without constitutional consequences.”[100]

On 17 December 2020, the Joint Committee (led by Gove and Šefčovič) agreed a set of documents to give practical effect to the agreement. The documents include amendments to the original agreement (No 3/2020); determination of "goods not at risk" of entering the EU (includes temporary easements) (No 4/2020); maximum state support and "level playing field" (No 5/2020); practical working arrangements for EU inspectors at ports and airports (No 6/2020); and establishment of an arbitration panel for dispute resolution (No 7/2020).[101]

British Prime Minister Boris Johnson first threatened to invoke Article 16 of the Protocol in a speech to Parliament on 13 January 2021[102], and again on 3 February[103].

The Von der Leyen Commission threatened to advise the European Council to invoke Article 16 of the Northern Ireland Protocol on 30 January 2021 over a dispute with AstraZeneca on the contractual details of COVID-19 vaccine and whether the Anglo-Swedish manufacturer was or was not providing its "best efforts" to supply the EU with its product.[104][105][106][107] After frank representations from the Irish and British governments, the Commission rapidly withdrew the threat and apologised for its error of judgement.[108][105]