The “Irish border question” is largely an invented problem

The most recent of the entirely-invented and counterproductive “objections” raised, on the EU side, to proceeding to trade talks with the UK concerns the Ireland and Northern Ireland border.

It is a struggle to maintain the appetite to keep answering these points as if they were genuinely raised in good faith, rather than them being transparently about politicking and delay. The EU is politically torn, with no German government in place, the Irish now facing new elections and the Catalan regional election taking place only a week after the EU Council meeting at which the EU must decide whether to finally shift to trade talks.

The significance of the timing of the Catalan elections, in particular, have been largely overlooked in UK discussions. Will the EU really want, having adopted such entrenched positions on a range of Brexit issues, to give the impression it will back down and, as it might see things, “ease the path” to a country leaving the EU only a week before the Catalans effectively decide whether they will do the same? No deal is now looking more likely than not. Although much of the focus is on the UK, the EU is giving every impression of simply not being sufficiently coherent to deliver.

None the less, let us gird our loins, suspend disbelief, and try for a moment to engage on the “issue” (such as it is) of the Irish border. The claim is that this is some kind of huge quagmire to which the UK has thus far offered no plausible way forward and that the only options involve some form of internal customs border inside the UK, between Northern Ireland and the rest of the UK. Obviously virtually no-one in the Conservative Party and absolutely no-one in the DUP would entertain that idea for a moment. So what’s the alternative?

Well, first we need to ask why there are normally border checks when there are customs duties to be paid or regulatory differences across a border to be complied with. Much commentary appears to imagine that it is unthinkable that one could have a border without a “hard border” — i.e. without checks and delays and enforcement being done at the border, or perhaps a few miles inside the border. But why? What is being done at the border?

What’s being done is to check that businesses and individuals who enter a country are complying with the laws of that country and, in some cases, that they are not fleeing the laws of the country they are leaving. But there is no intrinsic reason that needs to be done at the border or ten miles inside the border or at any specific location-for-everyone at all. Within the UK there are about five and a half million businesses. These businesses, by and large, pay their taxes and comply with regulations without everyone turning up at some common point to be checked by officials and policemen. Laws are complied with and those who violate them are identified and prosecuted without everyone being stopped at some hard border.

A hard border is merely a convenient point at which to check and enforce compliance with certain kinds of law and tax. For most countries, in most situations, it will remain more convenient to maintain a hard border than to pursue other means of complying with and enforcing laws, such as whistle-blowers, random inspections of offices, audits and the various other means by which the vast majority of business taxes and regulations are complied with every day. But that does not mean that if one did not have a hard border, it would be impossible to enforce by these other means. The fact a hard border is usually convenient does not mean one could not exist without one.

In the case of the Ireland-Northern Ireland border it will not be more convenient to have a border than to not have one. That will of course create various challenges. Precisely what those challenges are and therefore how best to address them can only be determined once we know what sort of trading arrangements we will have across the Irish border post-Brexit.

For example, will there be tariffs or not? If there are tariffs to pursue and enforce, we might use additional or different means to enforce them from if there are no tariffs. If regulatory differences are large, we might use additional or different means to enforce them from if they are small. If differences apply in agriculture but not in other sectors, we might enforce them differently from if, say, they do not apply to small agriculture operations. We need to know the trading arrangements to work that out.

Some say: “But what about smugglers?” But as things stand there are differences in VAT and various excise duties on alcohol and tobacco between EU Member States, and there are smugglers who seek to take advantage of that. We do not consider that means we must have a hard border between Ireland and Northern Ireland now. We use other means to pursue such criminals.

Others note that if we are enforcing domestic taxes and regulations, our enforcement authorities are operating within our borders, but if an Irish business is non-compliant with a UK tax, the UK tax authority may lack jurisdiction to pursue the matter. Perhaps so, in which case we should be making an agreement with Ireland and the rest of the EU as to how we can pursue non-compliant firms post-Brexit.

The best way to proceed would be if there were a free trade agreement with the EU, and hence Ireland, that removed tariffs and that allowed for mutual recognition of standards, so as to minimise the compliance differences that firms would have to adjust to and that enforcement officers would have to pursue.

But whether or not there is a trade deal, the UK has committed to there being no hard border, for its part. No-one pretends that is easy, any more than it is easy to capture all smugglers and counterfeiters and businesses that are non-compliant with domestic regulation and businesses that do not pay their domestic taxes now. But the fact that it is not easy does not mean it should be considered in any way not feasible. The UK, Ireland and the EU all want a solution that results in no hard border. We can all get there if we try.

The EU may well either not want a deal with the UK or be insufficiently politically coherent to deliver one yet, even if it wanted to do so. (There will of course be a free trade deal in the longer term, but let’s try to do one in the shorter-term if we can.) If the EU does want a deal, it should stop inventing problems and get on with trade talks. Today would be a good time to start.