The Brexit talks have stalled over the question of the Irish border. They were always going to, if not now, then later on in the process. This isn’t because the DUP and the Irish government are being difficult. It is simply because the position of the UK government is incompatible with the position of the UK government. This paper, by a group of legal academics, put it succinctly:
The UK’s negotiation positions are mutually exclusive; it is not possible to simultaneously exit both the EUCU [Customs Union] and the Single Market and fully avoid a physical border.
The customs union has a border around it. That’s the whole point of it. At the moment, both the UK and the Republic of Ireland are inside that border. If the UK places itself outside that border, then the new border becomes the UK’s border with the EU. In declaring that the UK will leave the EU Customs Union and Single Market, while also saying that there will not be a hard border in Ireland, the British government snookered itself before the EU had even picked up a cue.
Having realised, belatedly in most cases, that this is a major stumbling block, pro-Brexit politicians have argued that it would be possible to create an invisible border – a border that complied with all the legal requirements but that no-one could actually see. It would therefore still feel as though there was no border. People on either side of the border could commute, shop and trade without being stopped for customs checks. Electronic gadgets, drones and container tagging are among the suggestions put forward, all of which might help. The trouble is, none of these will completely remove the need for border checks.
Last month, the House of Commons Northern Ireland Affairs Committee took evidence from Norwegian and Swiss customs officials. The conversation is quite amusing, in parts, as the Norwegians patiently explain that, despite high levels of co-operation, sophisticated technology and their country being in the EEA, there still have to be some customs checks. As the BBC reported, Dr Bock, the Swiss official, said that an invisible border was theoretically possible but then went on to give a number of practical reasons why it would not be. Their operation was, he said, so slick that they now only needed to stop around 2 percent of those crossing the border. But with 13,000 commercial vehicles crossing the Irish border daily, that would still mean over 200 searches each day. Furthermore, Dr Bock explained that the Swiss blitz the border every so often and conduct random checks on all commercial vehicles:
From time to time, we are doing control days where we check more or less everything. Of course, this only works for one or two hours and then every truck driver in Europe knows that we are doing controls.
Even when his people are not obvious, they are still watching:
When you do not see us at the border, it does not mean that we are not there. We have people on nearly every international train. We are in unmarked vehicles around. We have observation systems in place.
And however good the technology is, this is still a physically policed border:
I am a big fan of technology: I am now leading the biggest digitisation project in Switzerland, with 400 million Swiss francs. But, finally, you should remember that Customs and Border Guard work is fieldwork done by people.
At the end of the day, you need people who are performing checks. You need people who have local knowledge and local feeling.
A fascinating paper published by the European Parliament last month outlines some of the solutions that may be possible if the UK and Republic of Ireland adopt best practices from around the world and state-of-the art technologies. It concludes that it would be possible to significantly reduce the number of border checks. However, as the report’s author clarified recently, this still wouldn’t completely remove the need for a border:
I stayed in this specific research deliberately out of the political domain, since a lot of people already are debating that angle. My point really is that, regardless of the outcome – if the referendum result stands & UK leaves the Customs territory – a border will appear.
— Lars Karlsson (@CapacityNow) November 29, 2017
A further problem with technological solutions is that most of them rely on CCTV and number plate recognition. The UK government’s commitment to no physical border infrastructure could be interpreted as ruling these out. Cameras might also become targets for sabotage, as this European Parliament paper (part of the same release as the technology one above) warns:
Any such system, whatever the details, would involve electronic devices to identify and record every vehicle crossing the border. These devices could be easily put out of action, sabotaged, or destroyed, just as traditional customs posts could be.
And even when you have identified rogue operators, you still need people on the ground to find them.
Any such system would have to deal with vehicles that were not equipped to cooperate with the system. They would need to be identified and traced. Recognition only by number plates would be insufficient: number plates can be easily changed or falsified. In theory, all vehicles could be marked automatically by laser, and it is suggested that non-reporting vehicles could be traced by satellite telemetry, or by random checking on the ground to identify laser-marked vehicles. But any such system would involve a significant lapse of time between the time of crossing the border and the time when the vehicle was inspected, if it ever was. During that time the goods could be concealed. Even if satellite telemetry were regarded as feasible, it would merely locate the vehicle, and it would still be necessary to reach it on the ground for inspection. In short, any such system would necessitate a considerable degree of physical surveillance within the importing region, and could not be relied on to be effective to control smuggling.
A customs border means that someone has to search vans and trucks. As Dr Bock, the Swiss customs official, said, however good your technology you still need boots on the ground.
The truth is that, if it were that easy to invisibly police customs borders, countries would have done it by now. The fact that even the most technologically advanced countries with the most friendly and co-operative relationships with their neighbours still need to carry out customs checks shows that we are unlikely to be able to eliminate the border in Ireland with satellites, flying machines or any other gizmos.
Which leaves us back where we started. The UK government can’t leave the Single Market and the Customs Union and, at the same time, avoid a physical border in Ireland. Perhaps some form of words will be found next week to allow us to fudge our way to the next stage of the Brexit talks but, if it does, the issue will just come up again when we start to discuss trade terms. All this talk of technological solutions reminds me of those corporate bosses who have no idea how to get out of the mess they are in but assure their staff that everything will be OK once the new system is implemented. Technology is never enough on its own though. It certainly won’t dig our government out of the corner into which it has painted itself.
Perhaps the Irish have done us all a favour this week by bringing to a head a problem that has been there all along. Contrary to the British stereotyping, the Irish don’t believe in fairies any more. They know there is no magical solution to the border question and, as the UK started this whole Brexit process, they are quite reasonably asking our government for answers.
Update: Chris Giles has a piece in the FT on just how much of a pain in the backside being outside the customs union is:
For trading companies, each load requires a customs declaration, multiple forms and stamps by the tax authorities to ensure that the formalities are closed on each side before goods cross the tax border. Within the EU none of this applies because complete regulatory alignment is married to an EU VAT regime, all within the customs union. The EU VAT system has its problems, but ensures that goods can flow across borders with no border formalities.
The Swiss-French border is efficient. There are no applicable tariffs. Regulations for goods are fully aligned. There is a common travel area between the two countries without the need for passport checks. But the border requires hard infrastructure because Switzerland is not in the EU VAT regime nor its customs union. Border frictions have separated markets either side of the border to the detriment of consumers.
Regulatory alignment would remove only some of Brexit’s border barriers in Ireland. The UK and Ireland should take note.