With less than a month until the UK’s scheduled departure from the EU, the government has finally published its plans for an alternative to the Irish border backstop. While the EU’s initial response has been guarded, it is unlikely to be convinced by proposals which contain many – potentially fatal – flaws and unanswered questions.
The proposals create a regulatory border between Great Britain and Northern Ireland, and a customs border between Northern Ireland and the Republic of Ireland. This is, unquestionably, a step down from the original backstop.
The UK wants to apply an existing customs procedure known as transit to the majority of trade on the island of Ireland. Broadly put, this allows the trader or a broker to submit customs declarations before and after goods cross the border. Customs IT systems can then select any high-risk freight to be checked at its source or destination, rather than at the border itself. The proposals have already been met with scepticism from Manufacturing NI.
The increase in inspections and random checks would require new mobile customs teams and co-operation between the police and customs authorities on both sides of the border, and inland checks – while less visible than border posts – would still bring risk to the officers and communities involved. And if the UK diverges from EU rules, then more checks might be needed to cope with smuggling – a concern that the Police Service of Northern Ireland (PSNI) has previously raised.
These plans might meet the UK’s new tests of avoiding physical infrastructure on the border. But they would introduce friction, costs and tariffs for those operating across the border. It would particularly hit the agricultural industry. In essence, the proposals ask the EU to move away from the 2017 agreement on the backstop’s purpose.
The government’s plan mean the EU would need to make a number of exemptions or exceptions. For example, the proposals for customs require a derogation from the common transit convention – a multilateral treaty.
The proposals also ask for “a series of simplifications and improvements" – which means big changes to the EU’s customs legislation to accommodate large-scale exemptions for small traders. The EU has already rejected such proposals on the grounds that it would lead to threats to the Single Market and create perverse incentives for companies to stay below the threshold where controls would apply.
It also makes it extremely difficult for the EU to refuse similar derogations for contentious borders all around the bloc – the EU has never accepted exemptions before for this reason.
The UK’s proposals seek to ensure the consent of Northern Irish communities, but it is not practical to ask its power-sharing institutions to choose between aligning to the Republic or Great Britain. The Northern Ireland Assembly hasn't sat for two and a half years. If power-sharing arrangements were restored, then the ‘Stormont lock’ has the potential to split along sectarian lines and lead to a further collapse.
In fact, unless both the Northern Ireland executive and Assembly agree to enter into the agreement at the end of the transition, then the default becomes no deal – the border would require regulatory checks and, almost certainly, some infrastructure. This effectively gives unionists, such as the DUP, a veto over border arrangements at the point at which the new arrangements would kick in.
But it also offers the potential for opting out of alignment with EU rules every four years after that if the Assembly does not agree to renew. Introducing this dynamic into an already fragile system is clearly a huge risk. It also amounts to a rolling exit mechanism – something the EU has so far steadfastly refused.
The purpose of the backstop was ensure that arrangements of some sort were in place – legally and operationally – by the end of the transition period: December 2020.
But there is very little chance that the UK can implement these proposals and ensure that businesses are ready in 14 months’ time. Government, traders and intermediaries would need to make major changes in very little time – with the government already admitting that a number of details would need to be ironed out during transition. It took traders two years to adapt to relatively minor changes in the EU’s customs legislation. These proposals introduce two entirely new borders and procedures over a much shorter period of time.
If there was just one issue to resolve, then perhaps the EU would find it hard to reject these proposals outright. However, the EU is likely to conclude that there are too many problems across too many issues – and not enough time for these problems to be fixed. An extension to the UK’s Brexit deadline, and a general election, are looming.