Brexit and the Border David Anderson Q.C. Independent Reviewer of Terrorism Legislation Belfast, 13 December 2016 Brexit and the Border

310 mi (E/S 96 mi, E/W 160 mi)

HC 48 and HL 76, May/Dec 2016 Nearly 300 formal crossing points “Many informal ones” 23,000-30,000 cross-border commuters daily EUR 60bn p.a. in two-way trade ANPR, but no impediments to persons No duties or customs checks on goods

Irish Ambassador to UK, 2016 “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”.

PERSONS

Common Travel Area, 1922- Special travel zone UK – IoM – CI - Ireland CTA nationals travel freely Non-CTA nationals: significant policy coordination and practical cooperation: EU citizens: same legal obligations Non-EU citizens: UK-Ireland visa data exchange, joint visa schemes (India, China 2014) Permitted by Protocol 20 to TFEU

CTA – a varied history 1939-1952 UK controls on Irish Sea crossings 1952: “similar immigration policy” agreed 1970 – late 1990s border security controls 2009: HL rejected routine control of passengers travelling within CTA by air/sea Operation Gull: illegal entry by air/sea

Brexit and EU nationals UK/Ireland, 3rd country citizens: little change if CTA survives? If new UK restrictions on other EU citizens: Control at Irish external frontier (legal/practical?) Control between RoI and NI? (practical?) Control between NI and GB? (politics?) Internal controls in UK? Impact of technology?

HLEUC Report of 12 Dec 2016 “Short of the introduction of full immigration controls on the Irish land border, the solution would either be acceptance of a low level of cross-border movement by EU workers, or allowing Northern Ireland to reach its own settlement on the rights of EU citizens to live and work there … [requiring] an adjustment to the devolution settlement.” (para 125)

HLEUC Report of 12 Dec 2016 “… strengthened checks for UK and Irish citizens at the sea boundary between Northern Ireland and Great Britain would be politically divisive and inherently undesirable. Other solutions must be identified …” (para 142)

GOODS

Norway-type solution (EEA) Inside single market, outside customs union Duties on non-UK origin goods Duties on agricultural goods More opportunities for smuggling EU would have to approve arrangements

HLEUC Report of 12 Dec 2016 “The only way to retain the current open border in its entirety would be either for the UK to remain in the customs union, or for EU partners to agree to a bilateral UK-Irish agreement on trade and customs. Yet given the EU’s exclusive competence to negotiate trade agreements with third countries, the latter option is not currently available.” (para 105)

Norway-Sweden border ANPR on all 80 road crossings “Green lanes” closed to dutiable goods Every lorry stops at dual-control customs station to make a declaration (8 minutes) Spot checks, X ray facilities, warehouses in red lanes: occasional 30-minute tailbacks

Canada-type solution (FTA) Outside single market, outside customs union Norway-type impediments remain More checks needed if standards diverge: Food safety Plant safety Pharmaceutical safety Packaging

Discuss … “It is inconceivable that a vote for Brexit would not have a negative impact on the North/South Border, bringing cost and disruption to trade and to people’s lives.” - Rt Hon. Theresa May MP, 21 June 2016