Brexit - the sonic screwdriver approach

Michel Barnier, walking the border
between Ireland and Northern Ireland
with representatives of the Irish government

One of the big questions raised by this week's draft withdrawal agreement (and a hundred documents and meetings before it) is "How do we avoid a return to the borders of the past?". Or, as it's normally put now: "How do we avoid a hard border between Northern Ireland and the Republic of Ireland?". All sides have stated that they want the border to continue to be as open as it is today and, as we know, if "everybody wants it" and "it's in everybody's interests" then it will happen.

Theresa May was interrogated on the subject by the House of Commons Liaison Committee - a daunting assembly of the chairs of all the Commons select committees (though there are usually only about a dozen of them on any particular occasion). As the Times reported, "Asked about her government’s plans to avoid a hard border the British prime minister refused to rule out the use of cameras to monitor people and goods between the Republic and the North". But then "Pressed by Yvette Cooper, a senior Labour MP and chairwoman of the home affairs committee, on whether she could confirm numberplate recognition would not be used, Mrs May said: 'We have said that there will be no physical infrastructure in relation to Northern Ireland. We have put forward a number of suggestions as to how we think that border issue can be addressed'".

Those suggestions can be found in papers issued last summer on customs arrangements and specifically Northern Ireland and Ireland. A major suggestion for the border is what's usually referred to as "technology", which is taken to mean online registration of shipments, with VAT and customs duties being treated as an accounting process, plus the recognition of the largest companies as "trusted traders" who are assumed not to need stopping for customs checks.

That doesn't cover everyone of course, and former Taoiseach Bertie Ahern sums the scheme up as follows (see Give the impression of doing no work until it's far too late): "Our economy is relatively small, a huge amount of the trade is multinationals; it should be possible, I think, to do that by technology," Then: "But of course, when you come down to agriculture and smaller items, I don’t think technology would work. One thing we do not want, can’t have, is back to a physical border.” And then: "Theresa May, take her at her word, she’s confidently said she doesn't want a physical border, the EU don’t want a physical border, the Irish Government don’t. So you’re left down with the one alternative — to make technology work in most cases and to throw a blind eye to those areas that can’t come in within technology". The number of border crossings which would have to attract the blind eye (though obviously not the volume or value of goods in transit) has been estimated at 80%.

The proposals have been rejected as inadequate, unworkable or "magical thinking" by the Irish government and EU negotiators, probably because there is little detail. Brexiters pour scorn on this, accusing everybody of just being negative. After all, they say, other countries have frictionless borders - look at Switzerland and its neighbours, Norway and Sweden, Canada and the USA. They don't always recognise that Switzerland has free movement and is in the Schengen zone (people cross borders as well as goods) and has a raft of bilateral agreements replicating much of the single market and easing customs. Neither do they mention that both Norway and Sweden are inside the single market. And how frictionless are those borders anyway?

Excellent visit by select committee to Swiss border to see how political will and co operation and technology makes Swiss/German/French border crossings smooth. Useful info for our enquiry into land border issues NI/ROI pic.twitter.com/LPrVV7r5qK

— Kate Hoey (@KateHoeyMP) November 23, 2017

That's a border post. You know, the kind that nobody wants on the Irish border. "Zollabfertigung" means "customs clearance". The evidence that Hoey and the rest of the committee heard from the head of Swiss customs demonstrated that the vast majority of personal travel between Switzerland and its neighbours involves no stopping, and the vast majority of trade is done by pre-notification, trusted traders, risk assessment and technology, like cameras and ANPR. That's the vast majority, not all. There are stops, there are checks, and occasionally there are follow-ups away from the border.

But, the Brexiters cry, the EU itself has done the work... and they refer to a report called Smart Border 2.0 - Avoiding a hard border on the island of Ireland for Customs control and the free movement of persons. It's not clear that they've read it though. 

(Incidentally, another Brexiter line is that neither Ireland nor the UK wants a border at all; it's "the EU forcing Ireland to erect checkpoints". However, this favoured report says "the withdrawal of the UK from the EU will create a requirement for some form of border controls on both sides of the Irish border" which presumably refers to the international legal context as set out in the rather technical Article XXIV of the General Agreement on Tariffs and Trade (GATT 1947) which effectively states that either you have a border or you form part of a customs union.)

Smart Border 2.0 seems a good report, with useful data such as numbers of person and vehicle movements across the border, and studies such as the Swiss, Norwegian etc cases mentioned above. But what it sees as eliminating a "hard border" seems rather different from May & co's idea. To take the list of features from the executive summary (comments in round brackets come from elsewhere in the report) and [comments in square brackets are my additions]:

Free Movement of persons under CTA (Common Travel Area):

• Free movement lanes at major border crossings for eligible people covered under CTA (special lanes at major crossings, minor crossings completely open)
• Use of enhanced driver's licenses [this is a US notion; is it relevant here?] and RFID (Radio Frequency Identification Device) capabilities [the range at which such devices can be read varies with the chosen technology]
• Use of ANPR (Automatic Number Plate Recognition) at manned and unmanned border crossings (for example, at unmanned crossings to identify vehicles which should present at a manned border crossing) 
• Requirement for people not eligible under CTA to present at a manned border crossing (if such a person uses another crossing they're considered to have entered illegally)
• One check: at jurisdiction of entry [I assume this means that everything can always be done at the border]
• Creation of a frequent travellers program for people not eligible under the CTA
• Legal basis for collaboration and data exchange between Ireland and Northern Ireland/UK

Create a low-friction border for the movement of goods by:

• A bilateral EU-UK agreement regulating an advanced Customs cooperation that avoids duplication and where UK and Irish Customs can undertake inspections on behalf of each other
• Mutual recognition of Authorized Economic Operators (AEO)
• A Customs-to-Customs technical agreement on exchange of risk data
• Pre-registration of operators (AEO) and people (Commercial Travellers programme in combination with a Certified Taxable Person programme)
• Identification system by the border
• A Single Window (this is an international standard for information management between the private sector and government in relation to import and export) with one-stop-shop-elements (coordinated border management approach where businesses, at import and/or export, have a single contact with one government agency also representing other agencies at the release of goods [I assume this would cover things like (phyto)sanitary checks on farm produce])
• A Unique Consignment reference number (UCR) (A specific number regulated by a standard from the World Customs Organization that follows a consignment through its life cycle in the global supply chain, making it possible for governments to identify and follow a specific consignment from a risk and compliance perspective)
• A simplified Customs declaration system (100% electronic) with re-use of export data for imports
• Mobile Control and Inspection Units
• Technical surveillance of border (CCTV, ANPR etc)

A Swiss border crossing

There's a lot of technology there, and lots of structures to be designed, implemented and staffed, but the report does talk in terms of it being available by March 2019, and also serving as a model for future UK/EU working, so I'll leave that for now. For the purposes of this post I'll just point out that here we have:

• manned crossings
• free movement lanes (and therefore other lanes where you have to stop)
• radio frequency readers for people via their passports, and for goods
• ANPR and CCTV

This is infrastructure at the border - quite a lot of it - including several items which the UK government has said will not be present, or Northern Irish representatives have said must not be there.

Then there are significant logistical and legal agreements, including:

• an agreement that UK and Irish Customs can undertake inspections on each other's behalf
• mobile control and inspection units (at the Swiss border the two countries' people can operate on either side of the border; they even have helicopters)

When these measures were mentioned in the evidence session with Swiss and Norwegian customs staff, eyebrows were raised and committee members expressed some doubt that they were appropriate for this case.

In addition there are several requirements for data sharing, which in other areas raises the question of which legal jurisdiction is to be used, and which court or other body is required to settle disputes.

This is an idea of "smart borders" that claims to bring together international standards, best practice and new technologies to create low-friction borders that support fast and secure movement of persons and goods. Coordinated border management, with trusted trader and trusted traveller programmes, it says, can significantly reduce compliance requirements and make borders almost friction free [my emphasis]. That sounds very much like the Swiss or Norwegian/Swedish borders, or even the idea presented to cabinet by Boris Johnson (and then publicly rejected by his boss) which considered: "Even if a hard border is reintroduced, we would expect to see 95% + of goods pass the border [without] checks."

It doesn't sound quite like the Irish border someone ordered.

And finally

Why did I mention a sonic screwdriver? Robert Shrimsley in the Financial Times wonders whether Boris Johnson, Michael Gove and other leading Brexiters are big fans of Dr Who, because he observes "much evidence of sonic screwdriver strategy (the all-purpose get out of jail free card for scriptwriters) in their thinking. Their mystical faith in technological solutions is most obvious in discussions about the Irish border". If you can get round the paywall, it's worth a read.