New Tory proposals on the backstop are no magic bullet but worth discussing to check a Hallowe’en crashout

How  realistic are the “alternative arrangements” proposed by the Prosperity UK report backed by Tory MPs desperate to avoid a complete crash out and political meltdown by the autumn? The answer –   in the details, less than seemed likely months ago.  But details are not the main point. What matters more is the legal framework.  We’re struck with the basic bone of contention.

Prosperity UK believe they have the magic bullet.

First, that any Alternative Arrangements must uphold the Belfast/Good Friday Agreement. Second, that any solutions would be based on existing best practice and would not be dependent on “unicorn” technology. Third, that the Alternative Arrangements should be compatible with any Brexit outcome… We believe our Commission has met all three remits and that delivering Alternative Arrangements within three years, so that the backstop is superseded, is eminently achievable.

The backstop would be removed and the UK could leave the EU without their permission. Although there would be elements of harmonisation with GB as well as the Republic, substantially Northern Ireland would find its own way chosen by the Assembly. Does this raise a cheer in the DUP? I wonder. Leo Varadkar rejected this long ago and has just repeated it- with qualifications

“We can’t accept that alternative arrangements are an alternative to a backstop unless we see what they are, know how they would work and see them demonstrated.,…That hasn’t been done yet and I don’t see that being done this side of October 31, which is why we certainly can’t accept the deletion of the backstop.”

Who in their right mind would trust an Assembly which can’t even agree to meet?  But perhaps the idea will return and feature in the agenda for the Assembly’s future (yes I I’m sceptical too).

Nonetheless…

There is not a single answer to Alternative Arrangements. The solution will be found in a combination of political, practical and technical arrangements. These will include use of existing flexibilities in the WTO and Union Customs Code, multi-tier trusted trader schemes and Approved Economic Operator schemes; pre-clearance in facility and special solutions for small traders as well as exemptions for those below even the VAT threshold.

Agriculture is a vital sector in Ireland and the development of satisfactory phyto-sanitary arrangements is a key challenge. The report discusses the pluses and minuses of an all-Ireland Sanitary and Phyto-Sanitary (SPS) Area, echoing the already existing Common Bio-Veterinary Area, which applies to livestock, as well as the Common Travel Area, which operates for people movement. Another option would be a Common SPS Area which applies not only for the island of Ireland but for the whole of the UK plus Ireland.

The report also examines inspections away from the border such as already happen in Rotterdam (up to 40km from the order) and will occur in France post-Brexit… Although our solutions do not rely excessively on technology, there is scope for technological innovation

The devil is in the detail as they say.  We’ve gone round the houses of technological solutions several times. Here we are again. A lot hangs in the time necessary to devise, test and phase in whatever technological solutions are feasible and agreed. This requires a time scale of uncertain but considerable length, say three years.But that time scale can only happen within an implementation period. An implementation period can only happen if the withdrawal agreement with the backstop is ratified by parliament .

RTE’s Tony Connelly did a heroic job last week comparing different sets of border conclusions. He delivers an interim verdict.

When EU officials went through each area, they concluded that most were explicitly or implicitly underpinned or facilitated by the common application of EU law on both sides of the border… The backstop not only provides a guarantee that the border will remain open (and is not simply a more efficiently managed frontier) since no customs or SPS (sanitary and phytosanitary) controls will apply, while ensuring that tariffs and compliance costs do not impede smaller traders.

Another problem with alternative arrangements and technology was reinforced by the Working Paper published by the European Commission this week on the so-called Mapping Exercise. In the summer of 2017, British officials were asked to “map” all areas of North-South cooperation mandated by the Good Friday Agreement.

By August they had drawn up a list of 142 areas. These were listed as part of the 12 work programmes created through the North-South Ministerial Council (NSMC) and other programmes created through the Six Implementation Bodies, such as Tourism Ireland, Inland Waterways and so on.

The scale and depth of the cooperation – agriculture, environment, transport, health, tourism, education, food safety, trade and business development, language, aquaculture, broadcasting, energy, telecommunications, broadcasting, security, arts, culture and sport – cannot be underestimated when it comes to the rationale of the backstop.

When EU officials went through each area, they concluded that most were explicitly or implicitly underpinned or facilitated by the common application of EU law on both sides of the border.

Here’s where Prosperity UK’s report comes in.

 The report found that any alternative arrangements must recognise “the supremacy of the Belfast/Good Friday Agreement” (GFA) and the preservation of the common travel area. All future proposals “must be based on consent”, one of the central tenets of the GFA and a recognition of the two heritages in Northern Ireland. Common all-island regimes should continue and where possible “built upon”.

Special arrangements such as special economic zones and common SPS regimes could “potentially span not only the island of Ireland” but also Britain with a common rule book, like the Australia-New Zealand Food Safety Area.

The report suggests such an arrangement would allow Ireland to break the EU’s common rule book if the UK diverged from EU standards and regulations. This would, for instance, apply if the UK decided to do a trade deal with the US enabling chlorinated chicken to enter the country.

This, it notes, would need checks in harbours, ports and airports in Northern Ireland to protect the entire island of Ireland, but this should be a decision for the Northern Ireland assembly. This scenario is predicated on Ireland having a side deal with the EU for a common rule book on the two countries and suggests Ireland would have the unilateral power to deviate from this, even though the EU is based on a system of rules that apply to all member states and not just one.

Last October the DUP rejected any checks at ports or airports in Northern Ireland, arguing it would cut the region off from the rest of the UK, while the Northern Ireland secretary, Karen Bradley, struck a similar position saying the government would “never ever allow a border down the Irish Sea”.

And last week the government finally released a mapping exercise which showed the extent to which the border issue impacted non-trade issues with 142 issues including healthcare for heart patients.

The report is influenced by the Trimble/ Bew argument that the backstop breaches the GFA  requirement of northern consent for north –south developments. Which is supreme? EU law or the GFA?  Where it applies, EU law outranks domestic law  but both are international agreements. If pursued this is one for a whole clutch of m’learned friends. Probably cheaper and quicker  to deal with politically, despite all  the problems.  So there may be something to talk about. Tony Connelly puts it like this:

For now the Irish Government remains deeply sceptical of any attempt to elevate alternative arrangements beyond their highly-conditional role within the Withdrawal Agreement…

It is conceivable that Boris Johnson will embrace the alternative arrangements model when he makes his approach to the EU, if he does become Britain’s next prime minister. Indeed, there are some suspicions that that model will co-opt parts of the hated backstop. There is speculation the next prime minister could then make a bid to convince the EU a hybrid construction would be worth exploring, if it meant No Deal was avoided. In other words, alternative arrangements may be more fig leaf than Holy Grail, so long as one Boris Johnson was able to muster his putative charisma to convince the Tory faithful it was a shot worth taking.


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