Border Issues

Scottish Border with England

By Molly Pollock

Newsnet’s Research Editor looks at what the Common Travel Area (CTA) is and how it developed, connecting UK, Ireland, Isle of Man and the Channel Islands. She uncovers information on older passports and that the Irish Free State remained more connected to the ‘union’ than is generally understood today, prior to Ireland became a republic in 1949.

Mention independence and one of the first issues brought up is the border – that 96 mile boundary between Marshall Meadows Bay on the east coast and the Solway Firth in the west that delineates Scotland with its devolved government at Holyrood, its own legal system, church, education and local government systems as well as its own languages, and England. The present boundary has been there for centuries after eons of being fought over.

How many times in the runup to the 2014 referendum (and now being regurgitated) did we hear unionist threats of passports, watch towers, armed guards, plagues of locusts! Scotland wasn’t to be allowed to be a modern country living in harmony with its nearest neighbours. Yet when after years of armed struggle it came to Ireland leaving the fold the UK government eventually showed a willingness to retain close ties with it through the Common Travel Area. Why should the Westminster government’s attitude to Scotland be different? Maybe the answer lies in oil and renewables, though if rUK wants to benefit from these resources it needs to learn to be a better, less introverted neighbour.

According to Wikipedia: “Following the Act of Union 1707 and the adjournment of the old Parliament of Scotland, the post of Secretary of State for Scotland was established within the government of Great Britain. The Secretary of State was entrusted with general responsibility for the governance of Scotland, with the Lord Advocate acting as chief law officer in Scotland. The post of Secretary of State for Scotland was abolished in 1746, and the Lord Advocate assumed responsibility for government business in Scotland. In 1828 the Home Secretary was formally put “in charge of Scotland”, but the Lord Advocate continued to be the voice of Scotland in the government and took the lead in Scottish debates.”

It wasn’t until 1885 that the Scottish Office and post of Secretary of State were established to provide better governance for Scotland, and it was to be over 100 years later before our devolved parliament was set up.

Passports have been around for centuries, the earliest apparently issued by England’s Henvry V in order to aid his subjects in proving who they were when venturing abroad. Granting travel documents in England became a role of the Privy Council of England about 1540. Around this time the term “passport” was introduced. In Scotland, Scottish passports were issued by the Scottish Crown or on the Crown’s behalf by burghs, senior churchmen and noblemen. These early passports would have been hand written on a single sheet of parchment or paper with the wording probably not dissimilar to the wording in modern passports.

In a British passport dating from 1936 the wording is:

Mr Robert Anthony Eden, Member of His Majexty’s Most Honourable Privy Council, a Member of Parliament etc., etc., etc.,His Majesty’s principal Secretary of State for Foreign Affairs, Request and require in the Name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford…[him/her] every assistance and protection of which…[he/she] may stand in need.

Modern methods of travel and increased passengers crossing multiple borders, made enforcement of passport laws difficult, and brought about the decision on the modern 32 page passport by the League of Nations in 1920. In the Uk the new passports were issued by a newly set up Passport Office in 1921.

It was of course around this time that the Irish question was exercising minds, with the Anglo-Irish Treaty of December 1921 resulting in the formation of the Irish Free State, with 26 out of 32 counties, a year later. The remaining six counties opted out, becoming Northern Ireland. The Irish Free State remained a Crown Dependancy, part of the Commonwealth, so Irish nationals could continue to live and work in Britain as any other British subject.

The Common Travel Area instigated in 1922 was “a pragmatic response by Britain and Ireland to the practical and political difficulties associated with an effective immigration frontier at the Irish border.”

The Common Travel Area is an arrangement “that permits ease of travel and other benefits such as reciprocal residency for immigrants, between the United Kingdom, Ireland, the Channel Islands and the Isle of Man. It dates from 1922 when the Irish Free State chose to operate the same travel restrictions as the UK.”

According to The Common Travel Area between Britain and Ireland by Bernard Ryan –

“The absence of immigration controls between Britain and the Irish state has been the norm for most of the period since the Irish Free State was founded on 6 December 1922. Prior to that date, aliens law had been enforced at Irish ports in the same way as elsewhere in the United Kingdom. When the Home Office was faced with the imminent establishment of the Free State, its view was that it ‘would not propose to require under the Aliens Order a passport system between this country and Ireland, and could not make any use of such a requirement if they were asked to impose it’. The status quo depended however upon Free State agreement to continue to participate in the British system of immigration control.”

The new arrangements provided that each state would enforce the other’s conditions of landing for aliens with immigration laws in both the UK and Free State being amended accordingly. And no new-fangled passport would be required to travel from Ireland to anywhere in the UK.

Unrestricted movement between Ireland and the UK continued until the second world war when Ireland’s neutrality led to both states introducing controls on movement.

The British Nationality Act 1948 meant people born in Ireland ceased to be British subjects. However under the 1948 Act Irish nationals were treated as a special case with British law applying to Irish nationals in the same way as British subjects. Ireland was equated with Commonwealth states, with Irish nationals not considered ‘aliens’ and Ireland not classed as a ‘foreign country’.

It wasn’t until 1952, with a renewed agreement with the Irish, that Britain abolished immigration controls on travel to Great Britain from Ireland.

Under the 1997 Treaty of Amsterdam both the UK and Ireland remained outwith the Schengen system of open borders with a Protocol to the European Treaties agreed at Amsterdam, specifying the two states could continue to make arrangements between themselves relating to the movement of persons between their territories (the Common Travel Area).

From Common Travel Area Version 8.0 published by the Home Office, January 2021

The contorted 280 miles long, border between Northern Ireland and Ireland, and the resulting impracticability and cost of immigration controls, along with the social and economic relationships between those on the two sides of the border, are said to be the reasons for the continuance of the Common Travel Area. These are the same issues the UK has faced following Brexit and its NI Protocol.

So far so good, but what happens when Scotland votes for independence and applies for EU membership which would make the Anglo-Scottish border an EU – rUK border? Scotland within the EU single market and customs union will mean a hard border between Scotland and England – that 96 miles between the east and west coasts. A ‘hard’ border between Scotland and England but open borders with 27 EU countries. But the hardness or otherwise will depend to a great extent on England – whether is craves total isolation or sensible links and agreements with its nearest neighbours.

In an article by David Bell just over a year ago, he states: “How such checks may play out along the NI/GB border in the near future is unclear. Nevertheless, if the UK government were to persist with antagonism towards measures that reduce trade frictions, then the checks on the Anglo-Scottish border would be damaging to current trading patterns. But to do so would harm its own exporters as much as Scottish exporters. And it might encourage trade diversion, in the same way that Brexit has caused the Irish government to establish direct routes to mainland Europe, obviating the need to use the UK land-bridge to access EU markets.”

This is exactly what has happened in Ireland with numerous new sea routes for cargo opened between Ireland and the continent and with Ireland receiving EU finance to help further diversify its trade from the UK to other countries.

Immediately post-independence, Ireland’s GDP per head was 56 per cent of that of the UK. In 2018, Irish gross national income per head was 43 per cent above the UK level.

Whilst acknowledging trade flows across the border are substantial David Bell also says:

“Scotland could establish deals with rUK independent of the EU because the single market is not complete: whereas most trade in goods is covered, very little progress has been made in respect of trade in services. Both rUK and Scotland are service-dominated economies. Hence there may be opportunities to agree sector-by-sector deals (e.g. some areas of banking, health, education) that would not threaten obligations that Scotland might have under EU treaties.”

The First Minister in a recent interview said the measures within the Northern Ireland protocol to limit checks on goods moving across the Irish Sea “could be a model for how to reduce friction on a future border between Scotland and England.” She went on to say that it was Brexit that had created border issues, and our businesses were paying the price for that.

With regard to the movement of people between Scotland and rUK, Bell believed Scotland would likely prefer to be part of the Common Travel Area rather than join the Schengen zone which would mean there would be no need to show passports on crossing the border.

Indeed, this was the position put forward in Scotland’s Future, published in November 2013:

“Nor will we seek membership of the Schengen area. Instead, an independent Scotland will remain part of the Common Travel Area (CTA) with the rest of the UK, Ireland, the Isle of Man and the Channel Islands. The CTA, which dates back to the early 1920s, is part of the broader “social union” that is the expression of the close economic, social and cultural ties across the nations of these islands.”

The CTA was recognised throughout the EU-UK negotiations and there is agreement in the Protocol on Ireland and Northern Ireland (which is an integral part of the Brexit Withdrawal Agreement) that Ireland and the UK may “continue to make arrangements between themselves relating to the movement of persons between their territories”.

The joint statement of May 2019 between the UK and Ireland reiterated:

The FM in her interview with the Irish Times also addressed the unionist suggestion that an independent Scotland would not be allowed in the CTA:

“There is nobody with any credibility anywhere that suggests that Scotland would not continue to be in the Common Travel Area. Even the scaremongers about independence so far haven’t tried to use [that] argument,” she says. 

“And for people in Scotland that’s a real win-win because we’d retain that freedom of movement across the Common Travel Area but regain freedom of movement across the whole of the European Union. And so we’d be in the same position as the Republic of Ireland, which I think would be a really good position to be in.” 

However, if the Common Travel Area is based on the countries concerned having similar immigration policies then Ireland’s increased rates of immigration might cause concerns, as might the Scottish Government’s views that: “Scotland’s differing demographic and migration needs mean that the current UK immigration system has not served our interests.”

The CTA with Ireland was based on pragmatism. With the UK now out of the EU and struggling for friends and trade deals around the world, it needs to show similar pragmatism when it comes to Scotland. An agreement for freedom of movement is in everyone’s interests not least those of the 12 million people from rUK who holiday in Scotland every year.

Scotland joining the EU will mean customs checks for goods at the Scotland/England border, just as at borders between many other countries such as Norway and Sweden. But for most of those travelling regularly to shop and meet family and friends there will be no checks. The Home Office makes it clear above that there will be no routine immigration controls on the land border between Ireland and Northern Ireland., therefore why should there be any beween an independent Scotland in the EU and rUK?

So with trade agreements with rUK covering some services, hundreds of trade agreements through EU membership and free movement across the EU and throughout the UK with the Common Travel Area agreement (no passports required) Scotland should do just fine.