The Brexit Agreement and regulatory checks affecting Northern Ireland
By Simon McIlwaine
An aspect of the Prime Minister's withdrawal agreement with the EU causes much anxiety among supporters of the UK's withdrawal and Northern Ireland in particular.
Whether or not there is going to be any kind of internal UK border is causing great concern in Northern Ireland, and rival interpretations abound. They are troubling business and consumers alike, with the added worry that anything which remotely resembles an internal Customs border will be seen by Republicans as an irreversible end of Northern Ireland's place in the UK and will embolden attitudes of confrontation and triumphalism, contrary to the conciliatory ethos of the Belfast agreement.
There has been a recent darkening of the Unionist mood, and it would be shame if this were based on a misunderstanding or an ambiguity or infelicity of wording, for that darkening of mood will bolster support for Loyalist paramilitaries and increase militancy. Any additional compliance costs of supplying intermediate or consumer goods to Northern Ireland from the mainland will hamper small business and impact cash flow and will also lead to more mainland suppliers refusing to deliver to Ulster.
The EU wishes to maintain an open border between Northern Ireland (NI) and the Republic (ROI). There has been a conflation of customs issues and security issues. The main dynamic in goods movement has been North to South: Northern Ireland, as part of the UK, being the lower sales tax jurisdiction. This is a proposal for an adjustment that prevents an Irish Sea border , which shows the UK is acting in good faith to prevent smuggling into the EU and involves no loss of face and no sense on the part of Unionists that their status as equal UK citizens has changed without their consent.
If the pro Unionist population in Northern Ireland has confidence in the government, not only will support for Brexit increase, but the separatist movement in Scotland and Wales will be less ready to detect a semblance of weakness in HM Government's commitment to the Union in those parts of the Kingdom.
First of all, for symbolic and emotional reasons we cannot have UK border posts in Larne. So, as with agriculture, management of goods doesn't have to be done by Customs staff, which would be constitutionally repugnant.
It can be enforced by Department for Business Energy and Industrial Strategy or by DEFRA. Symbolically it is crucial that any such administration be undertaken by civil servants with a DOMESTIC remit.
It will be almost impossible to recruit anyone in Northern Ireland willing to apply an internal UK customs border or the semblance of it, in the face of Unionist anger. Of course, having EU officials undertaking surveillance of internal UK movement of goods would be a negation of Brexit.
Secondly - for the first time ever make it an imprisonable customs offence in the U.K. to transport goods that are legal in the U.K. but illegal for sale in the ROI over the NI land border into ROI.
Third - make investigation into this by Department for Business Energy and Industrial Strategy or by DEFRA checks something that is intelligence led if there is evidence that the border is being abused to undermine the EU border.
Fourth - Change sale of goods legislation to make it an implied term of any contract for the sale of goods to anyone in NI that the goods are for their consumption and use In the U.K. and not to be transported over the border into ROI if they are not legal for sale in ROI according to ROI or EU law. That protects what the EU wants, the integrity of the single market, without introducing customs posts at Larne or the need for mainland businesses to file paperwork at HMRC for deliveries to NI or the worry that NI businesses will have to pay duty and then claim it back. These measures would be entirely consistent with HM Government's undertakings to the EU and would also dispel, immediately, the growing apprehension in NI that there will be an internal UK Customs border. The government should support these proposals and Parliament must bring them into law as legally binding amendments to the Withdrawal Agreement.