The land border between Northern Ireland and Ireland Contents

1Introduction

1.The UK Government and the European Union (EU) both acknowledge the unique circumstances of Northern Ireland in the light of the UK’s decision to leave the EU. Northern Ireland is the only part of the UK that will share a land border with the EU after Brexit. In the referendum, Northern Ireland voters voted to remain in the EU by a majority of 56% to 44%. In UK as a whole, voters voted by 52% to 48% to leave the EU. Northern Ireland’s constitutional framework, under the Belfast/Good Friday Agreement, has a distinctive cross-border dimension. Once the UK leaves the EU, the land border in Northern Ireland will change from an internal to an external EU border. This report considers the implications of the UK’s changing relationship with the EU for the Northern Ireland land border.

Our inquiry

2.In September 2016, following the EU referendum in June 2016, the former Northern Ireland Affairs Committee launched an inquiry into the land border between Ireland and Northern Ireland. Our predecessor Committee took oral evidence from academics; representatives of local businesses; the Police Service of Northern Ireland; the then Irish Ambassador; industry representatives for manufacturing, agriculture and tourism; international trade and customs lawyers and environmental policy groups. The Committee also travelled to Londonderry and Dublin to gather evidence. In Londonderry, the Committee held informal meetings at Ulster University, the Western Health and Social Care Trust and Londonderry Port. In Dublin, the Committee met with the Department of Justice and Equality, Irish Revenue Commissioners, Irish Farmers’ Association and the Deputy Garda Commissioner to discuss the Irish perspective on the negotiations.

3.Following the General Election on 8 June 2017, this Committee relaunched the inquiry, and has heard oral evidence from academics, experts in EU customs controls, Swiss and Norwegian customs officials; the Chief Minister of Gibraltar; Ministers from the Department of Exiting the EU and the Northern Ireland Office and EU Chief Negotiator Michel Barnier. We visited Dublin and Newry to examine existing border arrangements and met with representatives of local business in the border region. We also visited Basel to observe how the Swiss-EU customs border operates. We are grateful to everyone who contributed to this inquiry.

4.In this Report, we seek to make recommendations that will inform the Government’s position as we enter the next phase of negotiations on the UK’s exit from the EU. The constantly evolving nature of the negotiations means that this Report cannot represent an exhaustive statement by the Committee on this subject. Our future programme will reflect the need to scrutinise the impact of the UK’s withdrawal from the EU on Northern Ireland on an ongoing basis.

The land border

5.The land border is 310 miles long with over 200 formal crossing points and probably the same number again of informal crossing points.1 Farming land and villages, such as Pettigo-Tullyhummond, straddle the border line with houses on both sides.2

6.The current open border arrangements have developed over time. Free movement of people was introduced following the creation of the Irish Free State in 1922.3 Customs infrastructure was removed with the establishment of the EU Single Market in 1993 and military infrastructure, such as British Army watchtowers, were eventually taken down in the years after the signing of the Belfast/Good Friday Agreement in 1998. Today, the border is largely invisible. Often, the only indication of crossing the border is the subtle difference in road markings, signs and speed limits.

7.The open border enables individuals to travel freely without being subject to passport control. The Government estimates that the total number of person border crossings is around 110 million annually.4 The closely intertwined nature of the road networks around the border mean that a single point-to-point journey may involve crossing the border multiple times.5 The Centre for Cross Border Studies estimates that between 23,000 and 30,000 people are cross-border workers.6 Individuals and businesses on both sides of the border benefit from access to a labour market which encompasses two jurisdictions. For many, crossing the border has become a feature of everyday life. Free movement of people also plays an important role in the peace process—the ability to interact and cooperate with others for work, education and leisure has been described as a “precondition of peaceful relations”.7 Before the removal of security measures, we heard that “people in Donegal stayed in Donegal and people in the north stayed in the north.”8 Today, open borders have enabled communities to reconnect after decades of separation.9

8.The land border has unique political significance due to the history of Ireland and conflict in Northern Ireland. During the Troubles, military check points on the border were frequently the subject of shooting and bombing attacks. Both the Irish and UK governments acknowledge the disappearance of physical border checkpoints as “the most tangible symbol of the Peace Process.”10 Given the history of the border, there are sensitivities about its visual appearance and the prospect of new border infrastructure being introduced. In evidence submitted by the Irish Central Border Area Network, survey respondents described the term “border control” as one that recalls “deeply negative experiences and community tensions”.11 George Hamilton, Chief Constable of the Police Service of Northern Ireland, said that if checkpoints were re-established it is likely they would be a target for dissident republican groups.12 Other contributors also expressed concern that physical infrastructure at the border would attract paramilitary activity and “heighten political tensions and social unrest”.13

9.The ease of moving between jurisdictions has become “the norm” for people in the border corridor.14 In the Londonderry-Strabane area a person could be “earning in sterling”, buy their home in euros, and simultaneously own a car registered in Ireland.15 School children from one jurisdiction can be educated in the other and some health services, such as Emergency Services, are a shared resource.16 Investment in the border region is more viable when it is directed at populations on both sides of the border.17 The Altnagelvin hospital in Londonderry can provide specialist cancer treatment because it services 500,000 patients across both Northern Ireland and part of County Donegal in the Irish Republic.18 In the border town of Newry, major city stores have the potential to sell to a cross-border consumer pool of 2.5 million people.19

10.The current arrangements mean goods can travel freely across the land border without being subject to customs and regulatory compliance checks.20 This has facilitated cross-border trade and encouraged the development of all-island supply chains.21 In 2016, export sales to Ireland were worth £3.4 billion,22 and involved over 5,000 businesses in Northern Ireland.23 The agri-food sector is particularly dependent on the cross-border movement of goods. Each year, over 400,000 lambs and 750 million litres of milk are exported to Ireland for processing.24 In the dairy industry, producing milk on a cross-border basis creates economies of scale which helps businesses to compete.25

UK-EU Withdrawal negotiations

11.The EU has taken a sequenced approach to negotiations on the UK’s withdrawal from the EU. Stage one of negotiations focussed on citizenship rights, the financial settlement and arrangements for the island of Ireland. These negotiations culminated in the publication of a Joint Report on 8 December 2017.26 In stage two, the Joint Report has been translated by the EU into a draft legal document, known as the Draft Withdrawal Agreement, for ratification by both the UK and the EU.27 The European Commission has said that arrangements for the island of Ireland will be divided between the Withdrawal Agreement and the future relationship.28

12.The Joint Report contains high level political commitments from the EU and the UK on upholding the Belfast/Good Friday Agreement, avoiding a hard border and maintaining the Common Travel Area.29 However, it also reflects tensions about how these shared objectives will be achieved. The UK intends to deliver these commitments through a “new, deep, and special partnership” with the EU.30 In contrast, the European Commission has said this intention “seems hard to reconcile” with the UK’s decision to leave the EU Single Market and Customs Union.31 Consequently, the Joint Report presents three distinct solutions for resolving border arrangements:

The overall EU/UK relationship; or
If that is not possible, through specific solutions provided by the UK to address the unique circumstances of the island of Ireland; or
In absence of agreed solutions, the UK will maintain full alignment with those rules of the internal market and the Customs Union which, now or in the future, are necessary to support North/South cooperation, the all-island economy and protection of the Belfast/Good Friday Agreement.32

The Prime Minister has subsequently described full alignment as a “fall back option of last resort”33 and “the default, default option”.34 The EU views full alignment as “an effective guarantee” for avoiding a hard border.35

13.On 28 February 2018, the European Commission published a Draft Withdrawal Agreement intended to translate the political commitments made in the 8 December Joint Report into a legal text.36 The contents of the draft are still under discussion with the European Council and the European Parliament’s Brexit Steering Group. The contents are not final and must be approved before it can be transmitted to the UK for negotiation. The draft contains a protocol on Ireland/Northern Ireland which sets out in detail how the EU proposes that full alignment could be “operationalised” in legal terms.37 The Commission has said it views the protocol as a “fall-back solution” and that “all three options remain on the table.”38 The Prime Minister said that implementing the Commission’s draft would threaten the “constitutional integrity of the UK” by creating a customs border down the Irish sea and concluded that “no UK Prime Minister could ever agree to it”.39

14.The Joint Report of 8 December 2017 sets out three distinct solutions for addressing the unique circumstances of Northern Ireland. In doing so, it acknowledges the central disagreement between the UK and the EU about how their joint objectives for the land border will be achieved. This approach allowed the negotiations to move into the next stage but deferred, rather than solved, the central disagreement over how the UK’s decision to leave the Single Market and Customs Union will be reconciled with avoiding a hard border on the island of Ireland.

Defining a hard border

15.The terminology is important because a hard border has been associated with the prospect of new border infrastructure, which could be reminiscent of the security installations erected during the Troubles. Following the referendum result, the Prime Minister gave assurance that there would be no return to “the borders of the past”.40 This commitment has since evolved into a guarantee that there will be “no physical infrastructure at the border”.41 Robin Walker, Parliamentary Under Secretary of State at the Department for Exiting the European Union, described a hard border as one “where people are stopped and where there is physical infrastructure that gets in the way of everyday lives.”42 The EU has also stated the aim of avoiding “physical border infrastructure”.43 Michel Barnier, the EU’s Chief Negotiator, declined to define a hard border when giving evidence to the Committee.44

16.Characterisation of the land border as either hard or soft has been criticised because it presents a binary choice, rather than acknowledging the existence of a continuum of different options.45 Borders mark a physical area of territory and the legal space it encloses. They delineate the jurisdiction to regulate movement of persons, goods, services and capital within that legal space. Different rules apply to each of these aspects and so, in legal terms, there is not just one border, but many.46 Katy Hayward, Senior Lecturer in Sociology at Queens University Belfast, explained the importance of differentiating between separate aspects of the border;

You can have a soft border for travel, through the Common Travel Area, at the same time as having a hard border for customs. For example, the Common Travel Area continued even when the Anglo-Irish trade war was going on. At the same time of course you can have a hard border, as we had for travel through the military checkpoints at the land border, and a softer border for customs, as came about with the creation of the Single Market in 1993.47

17.In this Report, we consider how leaving the EU may affect cross-border cooperation and the movement of people and goods between Northern Ireland and Ireland. In Chapter 2, we consider how the UK’s decision to leave may affect the ability of individuals to travel freely across the land border under the Common Travel Area arrangements. In Chapter 3, we consider the implications of leaving the Customs Union and Single Market for the movement of goods across the border. In Chapter 4, we consider the implications for cross-border policy cooperation and citizenship rights under the Belfast/Good Friday Agreement.

1 Q176 (George Hamilton), Brexit negotiations: the Irish border question, House of Commons Library, 17 July 2017

2 The International Centre for Local and Regional Development (BDR0005)

3 Unofficial administrative agreements between successive British and Irish Governments. Bernard Ryan, ‘The Common Travel Area between Ireland and the United Kingdom’ (2001) 64 (6) Modern law Review, page 856

4 HM Government, Additional data paper: Common Travel Area data and statistics, 16 August 2017

5 HM Government, Additional data paper: Common Travel Area data and statistics, 16 August 2017

6 Centre for Cross Border Studies (BDR0011)

7 Professor Dagmar Schiek (BDR0015)

8 Q345 [Gavin Killeen]

9 Q45 [Professor McCall]

10 Ireland and the negotiations on the UK’s withdrawal from the European Union, May 2017, HM Government, Northern Ireland and Ireland, 16 August 2017

11 Irish Central Border Area Network (ILB0008)

12 Q178 [George Hamilton]

13 Irish Central Border Area Network (ILB0008)

14 International Centre for Local and Regional Development (BDR0005)

15 Q297 [Michael Gallagher]