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What on Earth is a Hard Border? by Martin Davison

Brexit Hard Line
Written by Martin Davison

How exactly are the UK and the EU ever supposed to agree on avoiding a hard border between Northern Ireland and Ireland, if they do not first agree what they mean by the phrase ‘hard border’? And why, without such agreement, is the UK wasting time, energy and imagination in devising and debating complex customs partnerships, maximum facilitation models and now, apparently, even ‘special economic zones’?

The negotiations are currently going nowhere, which may well be connected with the fact that, quite absurdly, the parties have never clarified precisely what they mean when they refer to the unacceptability of a hard border on the island of Ireland. The EU’s chief Brexit negotiator, Michel Barnier, actually refused to give his definition of a hard border when invited to do so by the House of Commons Northern Ireland Affairs Committee (see question 283), his excuse being that he was a politician!

The phrase ‘hard border’ covers an enormously wide spectrum. At one end we have what a layman might naturally assume it to mean: a clearly visible national frontier, protected by border guards and equipped with customs posts. None of the negotiating parties has expressed any desire to introduce such a border between Northern Ireland and Ireland.

At the other end of the spectrum, and somewhat less intuitively, the phrase might not even be referring to a physical border at all. On this interpretation, there could still be a hard border even if it is invisible and frictionless on the ground, i.e. a frontier with no physical infrastructure, no checks or controls of any kind and imposing no delay on the transit of goods and persons. This view was expressed by Queen’s University Belfast sociology lecturer and border specialist, Katy Hayward, in evidence before the same parliamentary committee in October 2017: “The question of physical infrastructure is a bit of a distraction. It does not mean that we do not have a hard border. Because those rules will be different in Northern Ireland, if the UK as a whole, including Northern Ireland, leaves the single market and the customs union, we will have a hard border.”

The question this article addresses is whether the EU is in effect gaming these two widely different definitions. While on the one hand insisting that a hard border, as normally understood, must be avoided, is the EU on the other hand demanding far more than mere invisibility and the absence of physical infrastructure? This demand would effectively shade into Dr Hayward’s more theoretical understanding of a hard border.

If this is indeed the EU’s argument, the implication is that it considers it to be irrelevant whether the inevitable friction at the new boundary of its Customs Union and Single Market occurs at the border itself or elsewhere. This article analyses statements made by Michel Barnier since the agreement of the Joint Report last December and concludes that that does seem to be the EU’s tactic. Its strategic aim is, of course, to keep the UK as close as possible as it leaves the Union, and thereby to reduce the economic competition it faces from a newly ‘independent’ UK.

Clearly UK negotiators faced with this argument, based as it is on the EU’s assertion that any Irish solution must also respect the integrity of the Union legal order, are in something of a bind. Theresa May and her team have to display skill and resolve in order to prevail with a forceful counter-argument: it is inappropriate and unreasonable to use such a theoretical definition of ‘hard border’ in the avowed context of preserving peace and harmony on the island of Ireland. If they cannot manage this, they will find themselves on the horns of a dilemma. They will either have to create an internal hard border within the UK or reverse their hitherto firmly stated policy that the whole of the UK will leave both the Single Market and the Customs Union. The political consequences of both these alternatives are so serious that one has to assume that an effort is being made to persuade the EU to adopt a more reasonable interpretation of the hard border commitment. But what are the prospects of success?

In paragraph 43 of the Joint Report the parties said, “The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.” This immediately poses something of a conundrum, since the UK’s explicit commitment to the avoidance of a hard border as set out in its August 2017 position paper on Northern Ireland and Ireland was in fact “to avoid any physical border infrastructure in either the United Kingdom or Ireland, for any purpose (including customs or agri-food checks).” This is then referred to as “the essential aim of no physical infrastructure at the border.” As for ‘related checks and controls’, the previous commitment was the somewhat ambiguous: “It is also important to ensure that there is no return to a hard border as a result of any new controls placed on the movement of goods between the UK and the EU.”

Quite why the UK signed up to ‘recalling’ something subtly different to this in the Joint Report is a moot point. Nevertheless, it would be surprising if the EU did not try to hold the UK to the apparently broader commitment contained in the report, with its less explicit location of the undesirable physical infrastructure and ambiguity over the related checks and controls. The UK might therefore have given a hostage to fortune by what seems to be a surprising concession. Nevertheless, the principle commitment ‘recalled’ by the UK in the report was to the avoidance of a hard border, with the physical infrastructure and related checks and controls appended as examples of what has to be avoided. So, there may be an escape route for the UK in that the commitment in the report still clearly depends on the definition of ‘hard border’.

In its April 2017 Guidelines for the Article 50 Negotiations and its September 2017 Guiding Principles for the Dialogue on Ireland/Northern Ireland the EU set out fairly clear parameters for any answer to the Irish border challenge posed by Brexit. A hard border had, of course, to be avoided and in these two negotiating documents the EU implicitly used the phrase in the natural sense of a visible border with physical infrastructure. This is really very clear from the Guiding Principles document in particular. But simply avoiding a hard border defined by those characteristics is by no means the end of the story as far as the EU is concerned. It also emphasised from the outset that the integrity of the Union’s legal order had to be respected.

The Irish government took the same line as the EU in the Executive Summary of its important publication of May 2017, ‘The Government’s Approach’: “The Government has made clear its priority that there be no visible, ‘hard’ border on the island of Ireland.” The immediately following reference to “a political and not just a technical solution” may be an acknowledgement of the EU’s additional requirement that the integrity of its legal order should not be damaged.

Since the agreement of the Joint Report there has been much heat, but arguably less light, generated over the European Commission’s provocative legal drafting of the so-called backstop for the avoidance of a hard border, under which Northern Ireland would have to stay within the EU’s regulatory and customs territories, including remaining bound to EU tariffs. More recently the focus in the UK has been almost exclusively on Cabinet dissension over what the future customs relationship with the EU should be.

These two issues seemed to have been brought together in the Prime Minister’s plan to replace the Commission’s version of a backstop with an undertaking that, after the end of the transition period, the UK will effectively shadow the Customs Union until the new permanent arrangements are ready to be introduced. The waters were then muddied by the Sun’s report of a DExEU plan for a joint status Northern Ireland with a 10 mile special economic buffer zone at the border. But in all this hurly-burly possibly too little attention has been paid to important statements made by Michel Barnier.

Barnier’s appearance before the parliamentary committee was on 22 January. In his opening statement he said, “Clearly we have the specific feature of this invisible border….We do not want, on either side, to find ourselves in the situation …..of a hard border…..It is a border that should remain invisible, but it will at the same time be an external border of the European Union and of the internal market.”

When asked to define a hard border, he said, “I am a politician, just like you, so we can always beat about the bush a little. I do not like physical borders. I do not like trying to define them either. I am a politician, you have to understand that.”

From these statements one may certainly infer that Barnier, however cautious or wily he was being, understands a hard border to be one that is not invisible, a physical border. But he makes the emphatic supplementary point that the Irish border, which has to remain invisible and non-physical, will also become the boundary of the EU internal market.

Then in a speech in Brussels on 9 February Barnier said: “This future relationship would need to avoid a hard border, and protect North-South cooperation and the Good Friday Agreement. Once again, ladies and gentlemen, it is important to tell the truth. A UK decision to leave the Single Market and the Customs Union would make border checks unavoidable.”

Let us recall that there has been no shortage of serious discussion about the feasibility of conducting most necessary checks and controls, for customs and other regulatory purposes, not at the border but away from it. The main exception to this would have to be in the sanitary and phytosanitary (‘SPS’) domain, where specific agreements along the lines of Switzerland’s with the EU will be required. So, it is surely revealing that Barnier considered the final sentence quoted above to be true. It would seem to imply that he was using the phrase ‘border checks’ in the very wide sense of any checks, whether conducted at the border or elsewhere, necessitated by the UK’s creation of a new EU border through its decision to leave the Single Market and the Customs Union.

Finally, on 30 April Barnier delivered a speech in the border town of Dundalk in Ireland, in which he sought to justify the EU’s backstop as necessary in order to avoid a hard border. He said: “Some people think that we could have two different sets of rules on the island of Ireland and still avoid border checks…… Since we all agree that we do not want a border, and since the UK agreed to respect Ireland’s place in the Single Market, then that means goods entering Northern Ireland must comply with the rules of the Single Market and the Union Customs Code. That is our logic. Simple as that.”

To analyse this statement, it might help to reorder Barnier’s argument into the following form, while retaining its ‘logic’. If there are two different sets of rules on the island of Ireland, goods entering Northern Ireland, some of which might be destined for Ireland, might not comply with EU rules. There will accordingly have to be border checks on them. And if there are border checks, there will be a hard border between Northern Ireland and Ireland. But that is what all parties have agreed they don’t want.

It is noteworthy that this argument is in fact only logical if one adds two further conditions. Firstly, ‘border checks’ has to mean checks resulting from the creation of an EU border, whether they are carried out at the Irish border itself or anywhere else on the island of Ireland. Secondly, border checks defined in that way create a hard border, even if there is no physical infrastructure at all at the border itself and no checks and controls take place there.

However, we identified earlier that EU negotiating documents used the phrase ‘hard border’ with its natural, intuitive meaning of a visible border with physical infrastructure, although simply avoiding a hard border was never enough for the EU; it was also essential that the EU’s legal order be respected. Moreover, Barnier’s evidence given to the parliamentary committee was quite consistent with that dual approach.

But what the EU’s chief negotiator now seems to be doing is to conflate what were originally two separate elements: avoidance of a hard border and protection of the integrity of the EU’s legal order. In Barnier’s ‘truth’ and ‘logic’, even an invisible border unencumbered with physical infrastructure can be a hard border, if it threatens the integrity of the EU’s legal order. His reasoning is that, if no checks and controls are carried out at the border itself, as the UK has guaranteed in order to avoid a return to a hard border, there will be an obvious threat to the EU’s legal order. That threat can be removed if effective checks and controls are performed elsewhere on the island of Ireland. But those will constitute border checks in the sense adopted by Barnier, so there will still be a hard Irish border.

Barnier’s argument is completed by pointing out that there are only two ways to remove the threat to the EU’s legal order without introducing a hard Irish border. The UK, or perhaps just Northern Ireland, could remain in the Single Market and a customs union with the EU; or the UK could carry out the requisite checks and controls at its internal border between Great Britain and Northern Ireland. For a variety of well-rehearsed reasons, neither of these alternatives is palatable to the UK government.

So, the UK now needs to challenge this slippery interpretation of Barnier’s with the utmost vigour. There is already evidence that the same arguments are being adopted by the Irish Foreign Minister, Simon Coveney, although it is difficult to discern any particular benefit to be gained by the Irish other than the gratitude of the EU. Theresa May needs to remind the EU that the hard border the UK had from the outset pledged to avoid was a visible border with physical infrastructure. After all, provided that can be achieved, what is the perceived threat to the peace process and the Good Friday Agreement? Any other interpretation would seem to imply that policy is being formulated in response to threats from extremist Republican elements.

If the integrity of the EU’s legal order can be preserved by effective checks and controls carried out away from the border, those ‘border checks’ might introduce some sort of theoretical EU version of a hard border but that is hardly the sort of hard border the UK has pledged to avoid. The EU should also be reminded that its own negotiating documents and Barnier’s evidence to the parliamentary committee all indicate that it too originally used the phrase ‘hard border’ to refer to a visible border with physical infrastructure.

It is perfectly understandable that the EU considers the integrity of its legal order to be sacrosanct. However, it did not originally insist that it was inevitably compromised by the necessary avoidance of a hard Irish border. The requirement that it had to be respected was a separate stipulation from the avoidance of a hard border.

Theresa May can acknowledge that she has always accepted the UK’s obligation to respect the EU’s legal order. But she should insist that that pledge can be honoured without the UK having to drink from any of the poisoned chalices being offered to her. There is no need for the UK to remain in the Single Market and enter into a customs union with the EU; goods entering Northern Ireland need not, subject to suitable SPS arrangements, comply with the rules of the Single Market and the EU’s Customs Code; and there is certainly no need to return to a hard border.

It remains to be seen whether May can unify her cabinet around post-Brexit arrangements and then get Parliament, and indeed the EU, to agree that they are at least part of the answer to the Irish border question. But the essential first step has to be to engage and prevail in the neglected argument over the nature of a hard border.

About the author

Martin Davison