Border stop and search powers are embodiment of draconian hard border argues convicted terrorist

New powers to stop and search anyone entering or leaving Northern Ireland represent the embodiment of a draconian hard border, the High Court heard today.

Counsel for a former republican prisoner claimed regulations which establish a mile-wide regime along the frontier with the Irish Republic breach free movement rights for all members of the public.

Co Fermanagh man Kevin Barry Nolan is seeking a judicial review aimed at halting implementation of the powers contained in the Counter Terrorism Border Security Act 2019.

His barrister, Ronan Lavery KC, described the provisions as “intrusive” and “chilling”. “These are draconian powers and the epitome of a hard border.,” Mr Lavery argued.

Under the terms of the Act, an examining officer can question anyone in a one-mile zone between Northern Ireland and the Republic to determine if they are engaged in “hostile activity”.

Nolan, 44, alleges that the regulations breach his private and family rights protected by European law.

In 2014 he was jailed for six years on firearms charges related to an attempted attack on a trainee policeman’s home. The plot, centred on the officer’s accommodation in Garrison, Co Fermanagh, was foiled in 2009.

Since his release on licence Nolan has lived close to the border in the village of Belcoo. His lawyers stressed that he is already required to notify police of any intended trips into the Republic of Ireland.

Mr Lavery contended that the disputed powers unlawfully impacted on the general public.

“They don’t just affect terrorist offenders, it’s everybody living or travelling within a mile of the border,” he said. “The extent of the provisions go further than mere notification, they involve questioning and retention of material.”

Neasa Murnaghan KC, for the Home Office, insisted there was no evidence of any actual enforcement of the alleged intrusive measures.

She told the court there were safeguards and multiple restrictions on the use of powers which could help prevent any hostile “foreign actors” using the Republic of Ireland as a route into the United Kingdom.

“That may seem far-fetched, but the world of espionage is often far-fetched,” counsel submitted.

Mrs Murnaghan added: “It’s unsurprising that someone going about their day to day business, crossing the border for shopping or leisure activities, hasn’t been stopped.

“The examining officer has to be clear and tick all the boxes, this is not something used to generally impede the free movement of travel across the border between Northern Ireland and the Republic of Ireland.”

Reserving judgment on the challenge, Mr Justice Scoffield pledged to give a decision “reasonably quickly”.

Outside court Nolan’s solicitor, Michael Brentnall, said: “This legislation creates a border area regime which, in effect, suspends EU law and rights in an area comprising one mile of the border without invoking the derogations for war or public emergency.

“It gives the state the power to stop, question, search, seize property from, retain property, copy information, remove from a vehicle, search goods belonging to, obtain fingerprints and DNA samples from, arrest,

prosecute, fine and/or imprison a person on suspicion on crossing the border on the island of Ireland.”