Brexit and the Irish border: national emergency or phantom menace?

Online Editor

January 11, 2019

With the prospect of a ‘no-deal’ British exit from the European Union looming large on the horizon, several Irish government representatives have warned of a resurgence in criminal activity in the towns and villages along our 310-mile northern border.

Justice Minister Charlie Flanagan has on numerous occasions outlined his belief that the ‘uncertainty’ of Brexit, coupled with the absence of a sitting executive in Stormont, could combine to create a ‘culture of crime’ in border communities. Speaking to the Irish Examiner in November, the Minister stressed the importance of tackling ‘residual’ paramilitary groups, which have now morphed into ‘criminality and organised crime on both sides of the border’.

Shortly after these comments were made, it emerged that Gardaí were investigating possible dissident involvement in a retaliatory attack following the eviction of a family from a holding near Falsk in Co. Roscommon. Moreover, the escalation of gang-related violence in Drogheda, Ireland’s most populous town just thirty miles from the border, seems to indicate that Mr Flanagan’s fears of a spike in criminality are well-founded.

That said, the political will needed to deal with the border question is lacking in Westminster. Conservative MP and ardent Brexiteer, Jacob Rees-Mogg remarked last week that the border issue is naught but a ‘phantom’ threat, whose importance and complexity has been greatly exaggerated by an ‘obdurate’ Irish government for short-term political gain. 

However, retired Irish Defence Forces brigadier-general, Ger Aherne, holds a contrary view. Speaking to the Irish Times in December, Mr Aherne stated plainly that although the imposition of a hard border can be avoided, garrisoned ‘strong points’ together with regular army patrols will be needed to conduct customs and migration checks, thereby safeguarding the integrity of the State.

While he acknowledges that the threat posed by dissidents has been over-stated, Mr Aherne says that policing a lightly-garrisoned border with over 300 identified crossing points will still be extremely difficult in light of the scarcity of resources available to the Defence Forces. During the height of The Troubles, there were eight army barracks along the border – whereas now there are just two.

Back in 2012, erstwhile Garda Commissioner Martin Callinan warned that there were as many as 25 criminal gangs ‘with a significant international element’ operating in Ireland. He said that while the ‘strategists and tacticians’ of these gangs operate from urban areas, their ‘tentacles’ spread to every county through sophisticated networks of associates. Policing these entities will be very difficult in light of the problems identified by General Aherne, unless a radical sea-change in policy occurs.

The difficulties associated with policing border areas in a no-deal outcome are manifold. According to Labour MP and shadow home secretary, Diane Abbott, the European Arrest Warrant (EAW) system would not function in a no-deal scenario. Moreover, Britain would no longer have access to databases like the Schengen Information System (SIS) and the European Criminal Records Information System (ECRIS) – both of which help to coordinate cross-border policing within the territory of the Union.

In May 2017, the government established the Commission on the Future of Policing in Ireland with a view to drafting a report on how best to tackle the problems facing future cohorts of An Garda Síochána. Released in September 2018, this report, makes a number of useful recommendations on how to confront these issues, including the separation of administrative and frontline staff, as well as the creation of a new intelligence service that would help to identify and avert threats to national security.

That such an agency was not deemed necessary throughout the entirety of The Troubles is testament to the dangers we now face, from both foreign and domestic sources. Unfortunately, the permeable nature of the proposed border will only serve to amplify the dual threats of terrorism and international crime. But alas, given the political unpalatability and logistical difficulties inherent in re-imposing a physical partition on the island of Ireland, a hard border was never truly on the cards for either party.

Despite the otherwise thorough nature of the Future of Policing report, the word ‘Brexit’ appears just once in 109 pages, with the authors rather ominously pointing out that ‘it has the potential to present serious challenges for Ireland, not least because of the border’. The drafters then go on to outline their ‘hope’ that Brexit ‘will not impact the vital area of police and security co-operation’. These words do not exactly inspire confidence and worse still, the fact that a 109-page report on policing skirts around the elephant in the room that is Brexit underlines our stunning lack of preparedness for the worst-case scenario: the UK catapulting headlong out of the EU without a deal in place.

This ‘it will be alright on the night’ attitude was lamented by General Aherne in his illuminating interview and indeed, An Taoiseach Leo Varadkar has made a point of not making contingency plans for how the border would be policed in a no-deal scenario as ‘he does not want it to become a self-fulfilling prophecy’. This is worrying in light of the structural deficiencies identified in our national security regime by both the Commission on the Future of Policing and General Aherne.

With the 29 March deadline fast approaching, one can only hope that Prime Minister May’s deal is voted through the Commons – the dates earmarked for this vote being one of the 14 or 15 of January. Much of the economic damage that has been forecast for Ireland can potentially be avoided if a deal of the proposed character is successfully ratified. However, our desire to keep trade links free and unfettered via a porous border could create a recipe for lawlessness of the kind prophesised by Minister Flanagan – or indeed, Mr Rees-Mogg’s hypothesis that the border issue is a ‘phantom’ one, cooked up by some nondescript public relations firm in the employ of the Irish government as a means of harvesting political capital could equally be correct. As with most things, only time will tell.

 


Bloomsbury Professional’s long-awaited title, National Security Law in Ireland by Eoin O’Connor, will be available for purchase from 31 January. Pre-order your copy here for an authoritative consideration of the laws pertaining to national security in Ireland, against the backdrop of an increasingly uncertain future. This book will be particularly useful for criminal law practitioners as well as lawyers operating within the inter-connected spheres of refugee and asylum law and immigration law.

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