© 2019 SCER
If it were to be an EU member and to hold its own as a sovereign state and trading partner, an independent Scotland must be capable of effectively managing its borders. What this means can be summarised succinctly in terms of three cornerstones for border management. The Scottish authorities will need to be able to prove themselves capable of all three:
- To know what is crossing the border;
- To be sure that it meets the criteria for doing so;
- To be able to prevent entry/exit if needs be.
These principles relate to all forms of movement across borders but because effective border management for the movement of goods is so key to the integrity of the EU’s single market and customs union (which Scotland will have to prove itself capable of upholding), this short article will concentrate on that.
The cornerstones of border management must work in conjunction with each other. It is no use knowing what is crossing without being able to ensure it meets the necessary criteria, and being able to prevent entry if it doesn’t. It should also be recognised that these three cornerstones are not of equal weight. If, for example, it can be assumed that goods crossing the border meet the criteria for doing so (i.e. customs procedures not required, regulatory standards met) then the other two pillars are much less important. This is how border management within the European Union typically works. If, however, that cannot be assumed (e.g. at a border between an EU state and a third country), then the other two pillars become much more significant. If the future UK-EU trading relationship is a fairly distant one, then we can be sure that all three pillars will be important for an independent Scotland in the EU, including the pillar of entry prevention.
In having to enforce the rules of the EU’s single market and customs union at its borders, Scotland would face quite similar challenges of border management to those faced by Ireland as a consequence of Brexit. One obvious parallel is that it would have a land border with a non-EU country; furthermore, that same non-EU country would function as the ‘land bridge’ for Scotland to the rest of the EU. Secondly, apart from that one land border with England, it is surrounded by the ‘natural’ border of the sea. And it also has islands to surveil as part of its national territory. There are also significant differences between the two cases; it is likely that those differences rather than the commonalities are ones that will be emphasised by the EU when it comes to what it would expect in terms of Scotland’s border management.
Scotland’s border with England is around 150km long and 5 main arterial roads (motorways and A roads) cross it. There are many B and C roads that traverse it too, but far fewer than in the case of the Irish border, with its 270-odd crossing points along a 500km historically-contested boundary. As was the case for the Irish border for much of the twentieth century, controls along the Scottish land border would be a challenge to design and administer. They would require new systems of cooperation and communication (including to facilitate and process customs declarations), new infrastructure (e.g. facilities for veterinary inspections), new recruits for border management (among whom customs inspectors are but the tip of the iceberg), and new rules for traders to comply with if they wish to move goods across Scotland’s borders.
Furthermore, it is worth recognising at this point that any effective border management system will need to have effective enforcement of anti-smuggling controls as well as trade facilitation. Very early on in its preparations for independence, therefore, Scotland would need to be considering the measures necessary to counter the inevitable rise in illegal movement of goods. Technology can be a useful tool in the effective operation of borders but it does not in itself avert the need for controls nor, indeed, does it avoid the need to be clear about the system of border management that is to be applied. Such measures may come into play far from the geographical border or entry point and can involve a very wide range of actors (e.g. accountants, lorry drivers). One thing we can be sure of: implementing an external border of the EU between Scotland and England would bring challenge and disruption. How much flexibility could we expect from the EU? Here’s where we might take lessons from how it approached the topic of the Irish border in negotiating the UK’s withdrawal – and they are not necessarily ones to set minds at ease.
When the EU and UK put the Irish border as a top priority for the withdrawal negotiations, it was in explicit recognition of the ‘unique circumstances of Northern Ireland’. These special conditions do not only arise from the legacy of the Troubles and the fragile peace process, but also from the genuinely exceptional geographical and political position of the region itself. This position is embodied in the three strands of cooperation in the 1998 Good Friday (Belfast) Agreement which are either defined by the border (e.g. unionist/nationalist) or which actively work across it (north/south, British-Irish). The vital importance of the Irish state vis-a-vis Northern Ireland is key to understanding the flexibility shown towards it in the UK-EU Withdrawal Agreement.
And the flexibility that the EU showed Northern Ireland was quite remarkable. But it also had a certain logic to it. The fact that the Northern Ireland/Ireland Protocol in the Withdrawal Agreement means that the boundary of the EU’s customs union and single market will not have to be enforced along that border is, on the face of it, a rational and pragmatic outcome. Bluntly put, it is easier to manage a customs and regulatory border in sea and air ports than across a land border. But if Ireland’s Brexit experience – and the debacle of the backstop and the frontstop and the dramatics in-between – has demonstrated anything, it is that ‘taking control of borders’ is not just a catchphrase for the EU but a solid, strictly enforced principle.
To illustrate this, consider the experience of another EU state: Slovenia, whose border experience illustrates two things: firstly, that the EU is very familiar with complicated and integrated borders (such as Scotland and England’s) and, secondly, that the EU tends to show very little flexibility for such cases, even where this brings inconvenience and disruption to those most affected.
Slovenia has borders with four countries: Italy, Austria, Hungary, and Croatia, the latter of which it is in an ongoing dispute with over their 670km border. Prior to 1991, Slovenia and Croatia were both part of socialist Yugoslavia. Under Tito, the border between them had little significance other than some administrative differences. 1991 brought independence for both countries and the border thus became more formalised, with passport and customs controls introduced along its length. In 2004, Slovenia joined the EU which meant that it was now in the single market and customs union, bringing increased border controls and new criteria for entry along the Croatian border. Then, in 2007, it joined Schengen, bringing in more stringent passport controls at the EU’s insistence.[i] It was not until Croatia acceded to the EU, in 2013, that customs controls on the Slovenian-Croatian border were abolished. So EU membership for Slovenia brought about an increase in border controls and checks that severely interfered with daily lives, commutes, trading and business. There is little reason to doubt that the EU would be willing to see this for the Scotland/England border too.
Borders have two sides and border management requires cooperation. Whatever border arrangements Scotland (and the EU) decides upon, they will have to be broadly matched on the other side. This does not relate only to the movement of goods. Much of Scotland is bordered by national parks and nature reserves. As we can see from the management of the US/Canada border through protected indigenous American territories, customs enforcement has its own difficulties in such conditions but it receives little attention, primarily because the economic value of what can be smuggled in such circumstances is reduced by the practical obstacles to doing so. However, there are other forms of risk associated with borders that cut through natural, remote landscapes, and these come with the movement of those things that can traverse the border by themselves, e.g. wild animals, water, diseases. These are hard to control for and instead can only be managed by cooperation with those on the other side of the border, with coordinated response plans etc.
Ultimately, an independent Scotland can only be sure of its readiness for sovereignty and the security of its borders if it is willing and able to work collaboratively. First, it will need to work closely with those on the other side of its borders, i.e. England. No matter how well-resourced or prepared, a secure border cannot be achieved or maintained by just one side. Secondly, it will need to acknowledge – as Ireland had to when confronted with the prospect of Brexit – that whatever it has to do at its borders will be not just a domestic concern but will be subject to heavy direction and scrutiny from the rest of the EU.
One thing we can be sure of: Scotland’s capacity for border management at its sea and air entry points will already be considerably enhanced as a consequence of Brexit itself. In a future scenario of independence and EU membership, such a process of increasing border management capacity would be wider and deeper. We should not presume a great deal of flexibility from the EU. Indeed, if Scotland wants a model from Ireland for border management, it should fall along these lines: the rules Ireland is going to have to implement at its sea border with the UK come 1 January 2021, an independent Scotland is going to have to be ready to implement at its land border.
[i] The UK’s Brexit border management has been made slightly easier by the fact that both it and Ireland are outside the Schengen zone, meaning that passport controls are not required at UK/Ireland borders but are already needed at other UK/EU borders. If Scotland were to remain outside Schengen and in the Common Travel Area (as discussed by Imelda Maher in this report), then passport controls are not likely to be needed at the Scottish land border.