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Missed Opportunities for the Irish Border

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Written by Graham Gudgin

With the UK government about to publish a bill giving UK ministers powers to impose alternative arrangements in place of the current Northern Ireland Protocol this article asks why there was no serious assessment of alternative arrangements during the negotiations leading up to the Protocol.

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One of the more bewildering aspects of the Northern Ireland Protocol is how the EU was allowed to get away with rejecting all alternatives to its own extreme and ultimately unsustainable arrangements for a customs border in Ireland. Aside from a few desultory mentions in early UK papers, workable ideas for invisible electronic borders or legal enforcement were never made. There was little attempt to even assess these ideas. Even proposals from the EU’s own experts were kept far away from official negotiations. Any reference to alternatives to core ideas were met by the EU with haughty distain as ‘delusional’ or ‘magical thinking’.

The same autocratic dismissal is in evidence today as requests to widen the EU’s negotiating mandate are described by EU diplomats as ‘dead on arrival’. Having engineered a stunning, and to them unexpected, coup in pushing the customs border back into the internal space of the UK, the EU is no mind to give up its gains. Laughably, the EU has tried to present the Irish Sea border as a concession on their part, allowing a third country to conduct checks on their imports.

The EU consistently argued that there was no alternative to the Protocol while keeping details of what was involved in a sea border unclear until too late. The UK allowed the EU to get away with this through a series of egregious negotiating errors, admittedly in the context of a deeply divided Parliament. Much was given away for free right at the start, including a continuation of the Common Travel Area for Irish citizens and the promise of no customs border within Ireland. There was no attempt during the Theresa May years to argue for the ‘mutual enforcement’ procedures which now comprise UK Government policy. The current alternative, laid out by David Frost in a Command paper in July 2021, involves each side making it illegal to export goods into the other’s territory unless product regulations are fully complied with. Crucially, there would be minimal customs procedures for goods going from GB destined for NI and NI’s firms would be free to use UK regulations unless exporting to the EU. There would be no oversight by the EU’s own European Court of Justice.

The mutual enforcement approach was first suggested in a July 2019 paper by Harvard Law professor Joseph Weiller with the editor of EU Law Live, Daniel Sarmiento, and former Director General at the EU Sir Jonathan Faull. This idea was never taken up by the May Government which by then was trying to avoid any border by keeping the UK in the EU’s Single Market with a backstop which involved a border in the Irish Sea. These ‘Chequers’ proposals were roundly rejected in Parliament but the backstop was revived by Boris Johnson in 2019 in order to circumvent Parliament’s infamous Benn Act which prevented any real negotiation with the EU. The mutual enforcement idea lay dormant except among the Brexiteers of the Centre For Brexit Policy until Lord Frost’s Paper in 2021. By 2019 it was much too late to take new ideas to the EU who had won their key victory on the Protocol two years earlier in the 2017 Joint Report which lais out the basis of the Withdrawal Agreement.

The key step in the EU triumph was to reject any negotiations on a free trade agreement until the customs arrangements for NI had been finalised. By conceding this sequencing in 2017 the May Government was always in a fatally weak position. Desperate to move onto discussions on a trade agreement it was forced to concede all that the EU and the Irish Government wanted in Ireland. A UK paper in mid-2017 had suggested future discussions on (unspecified) technical arrangements for customs once the trade agreement had been reached. No such discussions ever took place and the UK made little attempt to investigate what these might consist of.

It was left to private groups notably including ProsperityUK which set up the Alternative Arrangements Commission headed by Greg Hands MP and Nicky Morgan MP backed by a team of trade experts under Shankar Singham and including technical experts from Fujitsu. The Commission’s long report outlined a range of organisation and technical solutions for an essentially invisible land border in Ireland. These centred on an extended trusted trader scheme with large companies not contacting customs at all and a wider customs scheme with mobile app tracking of trucks. There would be exemptions for the smallest firms and SPS checks way from the borders. These ideas were based on the 2018 report Smart Borders 2.0 written for the EU Parliament by Lars Karlsson. Karlsson who had been head of Swedish Customs and president of the world customs association, argued that existing EU customs arrangements were 50 years out of date and should be replaced by electronic arrangements requiring no physical infrastructure at the borders. Both Karlsson’s report and that of the Alternative Commission were ignored by the EU Commission and were not incorporated into the UK Government’s negotiating mandate.

Although Karlsson’s approach was backed by other European customs experts including Hans Maessen, former head of the European Association of Customs Brokers, it was common for EU spokespersons and much of the media to announce that no technical solutions existed. A lack of technical knowledge appeared no bar to such statements. One reason given for scepticism within the UK was the appearance of the word ‘gates’ in Karlsson’s report suggesting a need for physical infrastructure. The author later clarified to the Commons NI Affairs Select Committee that physical infrastructure was unnecessary and that it was a mistake to use the word ‘gates’.

Only in mid-2019 as Boris Johnson took office was there any official UK attempt to discuss alternative arrangements for customs procedures. A Technical Advisory Group on Alternative Arrangements to the Backstop was set up in DEXEU, chaired by Steve Barclay and Jesse Norman. Although including a wide membership, it was noticeable that Singham and other customs experts were not invited to take part. The Group met a few times over successive months, came to no conclusions and soon withered away as events moved on later in the year.

The Irish border could have been used by the EU to introduce a fully electronic system but it rejected even the advice of its own experts. Instead, it pushed the UK into agreeing a conventional customs border but one completely unconventionally inside the territory of a neighbouring sovereign state. Given the fragile state of unionist sensibilities this was never likely to be sustainable and will now have to be replaced. It is just a matter of time before the EU accepts that the game is up and that new arrangements are needed.

Brussels may however string out a solution and make life as difficult as they can. It is difficult to believe in EU pragmatism when we remember how Greece was treated after the banking crisis of 2008.  An Ulster friend reminds me that Yanis Varoufakis wrote “ you do the research, you gather the experts, you write your paper, you revise your paper, you seek expert advice once more before a final draft. You take it to the EU which treats your proposal with incomprehension and promptly talks about something else as if you have just sung the Swedish national anthem”.

Graham Gudgin was special advisor to First Minister David Trimble in Northern Ireland 1998-2002. An earlier version of this article appeared on the Spiked Website.

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Graham Gudgin