Navigating Brexit: The UK and Ireland Border Dilemma and the Customs Union

The political and economic landscape surrounding Brexit is complex and chaotic, with many challenges still unresolved. One of the most critical issues is the relationship between the UK and Ireland, particularly concerning the potential 'hard' border. The question of whether the UK can leave the customs union while maintaining an open border with Ireland has become a contentious topic in the lead-up to the country's exit from the European Union. This article aims to clarify the intricacies of this issue and explore the potential solutions.

The Political Context

During her tenure as Prime Minister, Theresa May pledged to maintain an open border between the UK and Ireland to avoid the return of a 'hard' border. However, critics have argued that this position is unfeasible, given the UK's decision to leave the customs union. Jacob Rees-Mog, a prominent member of the Conservative Party, has been vocal in his support for the original leave date, highlighting the urgency of resolving this issue.

Both the British and Irish governments have maintained that the return of a 'hard' border in any form is undesirable. The Anglo-Irish Agreements, which comply with EU law, suggest that solutions can be found without EU involvement. The key to navigating this complex issue lies in understanding the nature of regulatory alignment and how border enforcement mechanisms can operate.

The Regulatory Framework

The term 'alignment' in the Brexit agreement is a source of significant confusion. Regulatory alignment refers to the degree of similarity between the UK and EU in terms of their laws and regulations. It encompasses three primary levels: harmonisation, convergence, and equivalence.

Harmonisation

Harmonisation is a feature of the EU Single Market and requires parties to have the same laws. This is the most stringent level of alignment.

Convergence

Convergence is a commitment to move towards harmonisation, meaning the parties are working towards having the same laws but may not have achieved it yet.

Equivalence

Equivalence means that while the laws may differ, they should have broadly the same goals and similar effectiveness.

Alignment

The term 'Alignment' in the Brexit agreement is deliberately vague and can refer to any level of similarity, from merely being 'related' to full harmonisation. It cannot be equated with harmonisation, as some critics have argued. To assume that leaving the customs union means the UK must adopt EU laws in the absence of a transition period is a misinterpretation.

The Role of Border Enforcement

The notion that a border must be the place where law enforcement occurs is a misunderstanding of how it works. The existence of a customs union implies a certain level of law enforcement, but it does not necessitate that this enforcement happens at the border itself. Instead, checks and balances can occur at various points, including through digital means and post-harvest inspections.

For goods to pass freely between the UK and Ireland, the paperwork and certifications can be completed in advance, thus eliminating the need for extensive checks at the border. For individuals, such as those crossing the border to visit family or engage in agriculture, the concept of 'passporting free' suggests that minor inconveniences can be managed through other means. For instance, people buying milk or milking cows on the border can simply manage these activities smoothly without having to undergo extensive border control procedures.

Theoretical Solutions and Practical Implications

Several theoretical solutions have been proposed to address the border issue, such as:

Enhanced Digital Technology: The use of advanced technology for digital customs clearance can significantly reduce the need for physical border checks. Post-Harvest Inspections: Goods can be inspected after crossing the border, ensuring compliance with regulations without interfering with the free flow of goods. Delegation of Authority: Certain border enforcement powers can be delegated to trusted entities or qualified personnel to streamline the process. Customs Infrastructure: Investment in modern customs infrastructure can help in managing the flow of goods more efficiently.

It is crucial to recognize that the EU's current regulatory structure, heavily influenced by Napoleonic-era principles, may not align well with common law principles, which prioritize flexibility and exception. While the EU may not immediately see this, the UK and Ireland can explore creative solutions to implement a seamless border system that respects both legal and practical realities.

In conclusion, the question of whether the UK can leave the customs union while maintaining an open border with Ireland is not as insurmountable as it might seem. The key is to focus on the level of regulatory alignment, understand that border enforcement does not have to occur at the border itself, and explore practical solutions to manage residual regulatory checks. The ultimate goal should be to ensure that the UK and Ireland continue to maintain a close and cooperative relationship, honoring the spirit of the Anglo-Irish Agreements and contributing to a smoother transition post-Brexit.