4The Border and Cross-Border Issues
The border in the event of a Brexit
70.Northern Ireland is the only part of the UK to have a land border with another EU member.87 Insofar as Northern Ireland does have a different relationship with the EU from the rest of the UK, it is this that is the cause. Previous chapters have discussed the relationship between Northern Ireland and the Republic in terms of commerce. Clearly, the two parts of the island of Ireland are key trading partners for each other and supply chains often span the border.
71.The nature of the border has contributed to this. Whilst it is not true to say that the border is completely open—there is number plate-monitoring technology in place—it is the case that individuals can travel across the border by land unimpeded. And commerce can take place across the border without duties being levied, customs checks, or other bureaucracy, even though different currencies are already used. The future of the border in the event of a Brexit was given as one of the main concerns by some witnesses.88 Those from south of the border were also unhappy at the prospect that this free movement between Northern Ireland and the Republic might become more difficult and that a Brexit might lead to a ‘hardening’ of the existing ‘soft’ border. Dan Mulhall, the Republic’s Ambassador in London, said that “… we are obviously concerned about the future of the border. Our open border is the biggest symbol, perhaps, of the normality and development of north-south relations. The fact is that no one can be 100% certain about what the impact of the border will be if the UK decides to exit the EU”.89
72.There have certainly been suggestions that the border might well be hardened in the event of a vote to leave. Taoiseach, Enda Kenny, has said that Ireland could reinstate border controls in the event of a Brexit.90 Significantly, the Republic of Ireland is not a Schengen signatory. Furthermore, the UK and the Republic have maintained a joint Common Travel Area (CTA) since the 1920s. With a CTA which predates either nation’s membership of the EU and no complications arising from Schengen, some would argue that there is no compelling practical need for the border to change. There is a general consensus that the current arrangements work well and there is no desire to change them.
73.However, in the event of a Brexit, the border between Northern Ireland and the Republic would become an external border for the EU and so would principally be a matter of negotiation between the UK and EU. The scope of any post-Brexit trade deal would have an influence on the nature of the border. In the event that it did not extend to mutual tariff-free access to each others’ markets, the border might need to include customs checks. Furthermore, if any post-Brexit agreement between the UK and EU did not extend to the free movement of labour with the rest of the EU, there are fears that the border with the Republic would become a “back door” by which UK border controls could be evaded (though measures already in place to restrict the ability of what would be illegal EU migrants to live and work in the UK would reduce its attractiveness).
74.In spite of there being no desire on either side of the border to change the current arrangements, we were told that, in the event of a Brexit, the future of the CTA would be put into question. The European Union’s Brexit Taskforce told us that as the CTA is an agreement between two EU members and protected by EU Protocol (it is currently included in an annex to the Lisbon Treaty), it would no longer apply if the UK was outside the EU. Whilst the CTA predates British and Irish membership of the EU, it is not clear that its status in international law is sufficiently robust for it to bind EU members beyond their mutual obligations to each other in the event of a Brexit. Outside the EU, the UK would be free to negotiate a special status for Irish citizens: Professor Dagmar Schiek, Jean Monnet Chair of EU Law and Policy at Queens University Belfast, told us that there is some latitude within the EU’s rules to allow some bilateral agreement between the Republic of Ireland and the UK over the border. However, she emphasised that it would require the remaining EU members to agree to this: “Under EU law, any future relation between the Republic of Ireland and the UK would be subject to agreement not only with the Republic of Ireland, but with the whole of the EU”.91
75.In the event of a Brexit, if there is no agreement on free movement between the UK and EU as part of the exit negotiations, and a harder border is required, three scenarios are possible: the border between the Republic and Northern Ireland could be hardened; the UK could instead harden the border between the island of Ireland and Great Britain; or the Republic could opt to enforce the same approach to border controls as the UK.
76.The most immediate impact of imposing a hard border between Northern Ireland and the Republic of Ireland would be felt by those who regularly cross between the two for work, leisure or study. Data on the numbers of people who live on one side of the border but work on the other is limited. A 2001 study estimated that there were 18,000 daily cross-border commuters (9,000 travelling in each direction).92 John McGrane told us the figure could be as high as 30,000.93
77.It was suggested to us that it would be impractical to try to control every border crossing between Northern Ireland and the Republic.94 There are nearly 300 formal crossing points and many informal ones. Assistant Chief Constable Will Kerr, PSNI, told us “We have to be pragmatic about how effectively we could police a border if we want to impose all these controls again”.95
78.An alternative solution might be to strengthen the border between the island of Ireland and the British mainland. There are fewer crossing points to enforce and it would be less disruptive as there are already checks in place. Some airlines flying between Northern Ireland and the rest of the UK already subject passengers to identity checks and these could be made more robust and extended to relevant ports such as Holyhead and Stranraer with relative ease. The UUP told us they had been told by the Government that it did not envisage policing the border with the Republic and that the Government’s preferred solution would be to put in place a more robust system of checks at relevant ports and airports on the mainland. Mike Nesbitt told us: “The Prime Minister indicated pretty clearly that it would not be on the physical separation of Northern Ireland from the Republic but it is more likely to be at Stranraer, Cairnryan, Heathrow, Gatwick, our ports and our airports.”96
79.Sharing a border policy with the Republic of Ireland would negate the need to impose a hard border between Northern Ireland and the South or with the mainland. There is already a considerable amount of shared policy in this area. In addition to the CTA, since 2014, citizens of China and India can enter the UK and Republic of Ireland with a single visa.97 However, the Republic’s policy is constrained by its EU membership.
80.There must be doubts about the extent to which, in the event of a Brexit, the border between Northern Ireland and the Republic could be effectively policed and the disruption to those who cross the border for work or study would be considerable. However, imposing security checks for those travelling between parts of the UK would also be highly undesirable. In the event of a Brexit, an arrangement that maintains a soft land border between Northern Ireland and the Republic but which does not see restrictions imposed on travel within the UK would need to be a priority.
The Belfast/Good Friday Agreement
81.Some of the evidence we received emphasised the potential effects of leaving the EU on the peace process in general and, more specifically, the Belfast/Good Friday Agreement. Much of this attempted to intertwine membership of the EU, the Belfast/Good Friday Agreement and human rights and, in particular, membership of the European Convention of Human Rights. For instance, law academic Dr Sylvia de Mars and colleagues from Durham and Newcastle Universities claimed in their written submission that “[t]he EU, the European Convention [on Human Rights] and the Good Friday Agreement are essentially interdependent in their application to NI”.98 The Republic of Ireland’s Foreign Minister, Charlie Flanagan, has similarly emphasised that “the shared emphasis on human rights is what makes the peace process credible”.99 However, although related, the Belfast/Good Friday Agreement and its associated institutions, human rights, and the Peace Process more generally are distinct and the impact of a Brexit on each should be considered in turn.
82.The Belfast/Good Friday Agreement itself makes reference to shared EU membership. It states that the governments of the UK and Republic wish “to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union”.100 Both the Agreement and the Northern Ireland Act 1998 state the legislative scope of the Northern Ireland Assembly and Executive is limited to that which is compliant with European law (and to the European Convention on Human Rights).101 In the event of a Brexit, the EU provisions would clearly no longer apply, although the ECHR would continue to apply. However, the power-sharing elements that comprise the core of the Agreement would not be affected.
83.The Belfast/Good Friday Agreement also states that the North-South Ministerial Council (NSMC) must “consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework”.102 It was suggested that leaving the EU might make the operation of the NSMC more complicated.103 The NSMC was established to foster cooperation between the Northern Ireland Executive and the Government of the Republic on all-Ireland and cross-border issues. This is made easier because the policy autonomy of each is constrained by the need to comply with EU law. This would no longer be the case if the UK were to leave the EU. The impact would be dependent on the extent to which UK Governments used the policy autonomy that would nominally be afforded them outside the EU. If UK policy diverged significantly from the EU’s in key areas, it could make cross-border collaboration more difficult to achieve. However, it should be noted that the EU has a limited role in several areas that the NSMC currently focuses upon. For example, neither education nor tourism need be significantly affected by a Brexit and much of the work of the six “implementation bodies” could continue even if the UK were to leave the EU.104
84.Whilst the Belfast/Good Friday Agreement makes limited references to the EU, there are numerous references to the implementation of the European Convention on Human Rights (ECHR) and its incorporation into UK law. However, the ECHR is institutionally distinct from EU membership and many ECHR signatories are not EU members. Leaving the EU would not, in itself, lead to the UK withdrawing from the ECHR.
85.More generally, whilst some witnesses noted the support the EU had provided to the peace process,105 nobody suggested its success was dependent on continued EU membership. Although both emphasised the benefits of continued UK membership of the EU, neither the Minister nor the Irish Ambassador considered the Peace Process to be at risk if the UK left the EU. Ben Wallace told us: “I just do not think it would be put at risk if we left the EU”. Clarifying comments previously made by Taoiseach, the Ambassador told us: “He was not saying that there was a direct threat to the peace process”.106 Indeed, arguably, the USA has played a more significant role in supporting the peace process. The EU has provided funds for useful initiatives through the PEACE Programme but this was in support of a peace process that was already underway. Moreover, the programme is unlikely to continue beyond the current funding round.107
86.The peace process has ultimately been successful because of the commitment of successive UK and Irish governments and the willingness of politicians and the communities they represent to put aside past differences sufficiently to allow Northern Ireland to be governed peacefully. It is clear that the relationships that both the Northern Ireland Executive and the UK Government have with the Irish Government continue to be very strong, and we expect that would continue to be the case regardless of the outcome of the referendum.
Policing and Security
87.The Police Service of Northern Ireland (PSNI) emphasised to us the excellent working relationship it enjoyed with An Garda Siochana (“the Garda”). It was stressed that this relationship was at every level. The PSNI Chief Constable told us: “The senior teams […] down to, literally, officers and police stations either side of the border running rural crime operations or road safety operations together. We are in a pretty good place around that level of co-operation and I think the results are speaking for themselves as well”.108
88.Cooperation between the PSNI and the Garda is underpinned by the Intergovernmental Agreement on Criminal Justice matters, which provides for regular formal contact. There are a number of examples of successful formal cooperation. The Cross Border Policing Strategy, which aims to disrupt criminal activity across the whole island, was agreed in 2010 and is regularly updated. It covers cooperation in the range of policing activities and includes sections dealing with operations, cross-border investigations, intelligence-sharing and security, information and communications technology, training, human resources, and emergency planning.
89.Under the Intergovernmental Agreement on Police Cooperation (April 2002), there are a regular series of cross-border staff secondments between the two forces in both back office, general policing and specialist policing areas. The biennial Cross-Border Organised Crime Seminar brings together police and other security and enforcement bodies from both sides of the border to assess key mutual threats. Beyond these arrangements for formal cooperation, a report by the British-Irish Parliamentary Assembly in 2015 noted the excellent informal, day-to-day cooperation on operational matters.109
90.If there was a commitment to continued cooperation between the two Governments, the PSNI Chief Constable said he was “absolutely sure that the quality of the relationships and the professionalism of both organisations [i.e. the PSNI and Garda] would not be diminished”.110 However, he did acknowledge the way in which EU processes and institutions facilitated cooperation between the PSNI and the Garda and with other police forces around Europe: “[a Brexit] would make a difference in terms of the formalities because a lot of the infrastructure—not all of it—is built on EU structures for exchange of information and so on”.111
91.There are several EU-level mechanisms that the PSNI can access as a police force of an EU member state. Perhaps the most high profile component is the European Arrest Warrant (EAW). Concerns have been expressed that the EAW is overused by some countries and incurs excessive costs to Northern Ireland. However, the PSNI has also stressed the benefits. In 2013 Assistant Chief Constable Mark Hamilton told the Assembly’s Justice Committee that: “[t]he European arrest warrant is the quickest and most effective way for both sides to recover suspects to be tried in either the Republic of Ireland or in Northern Ireland”.112 Between its introduction in 2004 and 2013, the PSNI received around 265 European Arrest Warrants for action in Northern Ireland and applied for approximately 50, 30 of which were to the Republic of Ireland.113 After Parliamentary approval in December 2015, the UK is currently in the process of opting into the Prüm Convention which will allow reciprocal access to fingerprint, DNA and vehicle registration data collected by the police forces of signatory countries. Europol and Eurojust were established to facilitate cross-border investigation and criminal prosecution across Member States. The Chief Constable emphasised that these current arrangements were useful in fighting crime that was increasingly cross-border in its nature: “All of this is probably doable with an exit [from the EU] but it will be slower, complicated and more costly.”114
92.However, cooperation between police forces is not confined to EU Member States. Whilst these EU institutions have facilitated cross-border working with the Garda and with the police in other EU Member States, the Chief Constable also emphasised the strong working relationship with non-EU countries such as the US.115 The Minister stressed to us the significance of intelligence sharing between the “Five Eyes” countries.116 Nor is participation in a number of these EU institutions limited to full EU members. Europol has partner arrangements with countries outside the EU, such as Australia, Canada and the US. Norway is a Europol partner, has an agreement with Eurojust and participates in Prüm.117 Leaving the EU need not necessitate a complete withdrawal from all these mechanisms.
93.If crime is increasingly cross-border in nature, policing must also be cross-border and the British Government must ensure that the PSNI has the maximum possible access to international collaborative mechanisms. This should include, though not be limited to, the existing EU mechanisms. In the event of a vote to leave the EU, access to these, or equivalent measures, should be included in any deal between the EU and UK.
The Single Electricity Market
94.There is a high degree of interdependence between Northern Ireland and the Republic of Ireland in gas and, in particular, in electricity. Since 2007, the two parts of the island of Ireland have been operating a shared wholesale market for electricity (the Single Electricity Market or “SEM”). It was designed to allow the small and inefficient energy markets on either side of the border to benefit from economies of scale. Generators on either side of the border compete to sell electricity into a common ‘pool’ from which homes and businesses draw their electricity. Those generators able to sell the cheapest electricity will have the most consistent demand whilst more expensive generators might find that they are only to sell into the pool at periods of high demand. Given the electricity market was a joint cross-border initiative between Northern Ireland and the Republic, we were naturally concerned to establish the extent to which a Brexit may affect it.
95.The consensus was that a Brexit need not have an detrimental impact on the existing Northern Irish electricity sector. In its written submission, the Northern Ireland Utility Regulator said that “Given that the genesis of the SEM was neither an EU nor a UK requirement, any decision by the UK to leave the EU would be unlikely to undermine the economic case for a wholesale electricity market on the island”.118 This was reiterated by Robin McCormick, General Manager of SONI Ltd, the electricity transmission company for Northern Ireland, who told us “I do not see Brexit having a direct impact on the current working arrangements. The All-Island Market could continue to function”.119
96.However, there are issues that might arise in the future if the UK were to leave the EU. The UK might no longer be bound by EU climate change and renewable energy directives whilst the Republic of Ireland would be. If the UK policy on emissions and renewable energy diverged completely, issues might arise around the selling of electricity into the Republic, which would still be bound by the EU directives. This could incur EU restrictions although it is not clear whether this would be permissible under WTO rules. Moreover, Russia currently trades with Finland and the Baltic states without tariffs even though it has not implemented climate change regulations on the same scale as the EU.
97.SEM can be seen as part of a wider trend towards greater integration of electricity markets throughout the EU. A larger market, it is suggested, is likely to improve security of supply, increase competition and lower prices for users. At the moment, the island of Ireland has little interconnection with the UK mainland which, in turn, has limited interconnection with the continent. As such, they are relatively self-contained markets. However, a new wholesale market—I-Sem—is currently being developed in anticipation of greater integration. I-Sem is being designed partly with the needs of future European integration in mind.
98.It is not anticipated that I-Sem, or the more general trend towards greater integration, would be affected by a Brexit. Non-membership of the EU is evidently not an impediment to participation in electricity market integration: in addition to Russia’s participation in an integrated regional electricity market with Finland and the Baltic states, the UK has an existing interconnector with Norway.
99.We have not received any evidence to suggest that Northern Ireland’s electricity market would be detrimentally affected by a Brexit.
87 Gibraltar is not part of the UK, but it is treated as though it is in respect of the UK’s membership of the EU.
90 ‘Kenny: Brexit Could Bring Back Irish Border Controls’, www.politico.eu, 8 January 2016
92 North South Ministerial Council, Study of Obstacles to Mobility (2001), p.36
97 Home Office The Home Secretary today signed a Memorandum of Understanding with the Republic of Ireland to strengthen the Common Travel Area Press Notice 6 October 2014
99 ‘Ireland Dismayed by UK Plan to Repeal Human Rights Act’, Financial Times, 17 May 2015
100 Northern Ireland Office, The Belfast Agreement, p 32
101 Northern Ireland Office, The Belfast Agreement, p 7; Northern Ireland Act 1998, s6 and s24
102 Northern Ireland Office, The Belfast Agreement, p 16
104 Q135 [Dan Mulhall]. The NSMC established implementation bodies for food safety, the promotion and development of Lough Foyle and Carlingford Lough, inland waterways, language, trade and business development, and special EU programmes.
109 British Irish Parliamentary Assembly Committee A, Cross-border Police Cooperation and Illicit Trade, 2015
112 Northern Ireland Assembly Justice Committee, Policing Issues: Briefing by the Chief Constable, 19 September 2013, p 35
113 PSNI written evidence to House of Lords European Union Committee, UK’s 2014 Opt-Out Decision (‘Protocol 36’) Oral and Written Evidence, p 488
116 Q824 [Ben Wallace]. “Five Eyes” refers to the intelligence alliance between the UK, Australia, Canada, New Zealand and the USA.
118 EUN0017
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25 May 2016