There just has to be a compromise over the backstop, for all our sakes.

Ulster University campus. A new face of Belfast 

Taking bracing walks in west Donegal and in and around Belfast for three weeks without much sight of the political news does wonders for the perspective. Not for the first time, I experienced severe doubts about the relevance of the noise of politics to the rhythms of real life. I’m old enough to marvel still how the near Republic has caught up with the North in prosperity and appearance. The border towns look generally much the same, apart from the dual signage which shouldn’t offend anybody with a titter of wit. Single signage in Irish I concede, can create a small difficulty in the Gaeltacht for non- locals looking for Dungloe and finding only an Clochán Liath. The £17 million spent on the Portrush “public realm” for the Open was cleverly invested. A lot of “shutter art” conceals business dereliction there and in Bushmills.

In Belfast the shrouds over the burnt- out Bank Buildings at least promises restoration. The town is like an old man undergoing patchy cut price dental treatment. Lots of bad bridge work and temporary cheap fillings amid the rotten teeth. The controversial Tribeca project has a pop-up shop in Bridge Street which showcases an impressive display of the Belfast development plan complete with model, but it only opens intermittently. A nice man offered to open it up just for me. But alas I had to catch a plane and get back to Boris.

The papers set the scene for a stormy return to Parliament tomorrow. A snap election or a deal against the odds are the main contrary options to choose from.  For my money Adam Boulton in the Sunday Times cuts through the posturing on both sides with the most objective analysis.

On the backstop Boris Johnson in the Sunday Times claims to detect the beginnings of EU bending but Michel Barnier stubbornly stays upright in the Sunday Telegraph.  So does Simon Coveney. This is their common formula for failure.

As Johnson is setting the new pace it’s worth looking for evidence of movement on his side. This is contained in his letter to the outgoing EU Council president Donald Tusk a fortnight ago, asking for fresh negotiations.  While on the mechanism of the backstop itself he seems implacably opposed, he hints at a legally enforceable alternative. The full text is worth reading as a position statement.

I believe the task before us is to strive to find other solutions, and I believe an agreement is possible.

We must, first, ensure there is no return to a hard border. One of the many dividends of peace in Northern Ireland and the vast reduction of the security threat is the disappearance of a visible border. This is something to be celebrated and preserved. This Government will not put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. We would be happy to accept a legally binding commitment to this effect and hope that the EU would do likewise.

                                  

This lies at the heart of the matter.  Parallel legal orders with sanctions but eliminating the backstop have been developed by one of Britain’s most dedicated former Eurocrats Sir Jonathan Faull

The variation to the Backstop we are proposing is as follows. The UK and the EU will each retain their regulatory autonomy. In practice we expect, even failing a formal agreement on such, a large convergence between the two regulatory regimes. There might, however, with time emerge different standards in the EU and the UK. Under this proposal it will be a violation of UK Law backed up by severe penalties (including if so wished criminal liability) knowingly to export, through the frontier between the North and the Republic, goods which do not comply with the regulatory standards of the EU. Compliance certification would be completed ahead of time as is already common and transporting companies and agents would be required to request such prior to shipment. In effect, UK public law would be backing not only the regulatory standards for goods on the UK market, but also goods destined for export to the EU through the frontier with the Republic.

 In normal circumstances a double regulatory regime already exists though of a self-regulating character, with the responsibility placed on exporters but quite easily open to abuse. Giving it the backing of UK law and the enforcement mechanisms behind such, will drastically reduce the abuse potential to a de minimis level.

Naturally, under this proposal, the Republic would adopt a similar regime. Irish law would make it an offence knowingly to transfer goods into the UK through the North which are not UK compliant.

 The problem of interpretation would remain, but under this proposal the Court of Justice of the European Union would be the final arbiter on the EU standards (including a preliminary reference to Luxembourg) and the British Courts would be the final arbiter for the UK standards with a similar procedure to be put in place before Irish courts.

 This scheme reflects how two autonomous legal orders interact in a cooperative way, keeping full regulatory autonomy, but in reciprocal and constructive terms to reach a common goal: compliance with the Good Friday Agreement and a continuum in the flow of trade in goods between the North and the South.

As regards traffic in goods in both directions, there could be non-frontier spot checks. EU Standard Centres within the UK mainland and the North, and UK Standard Centres within the Republic would be available to certify and mark compliance, not a novel practice in the world of international trade. 

Customs duties

The reality of most cross-frontier trade in goods is that custom duties are not in most cases actually collected at the frontier but paid in advance when obtaining an import license, and frontier checks consist of collecting the corresponding certification accompanied by occasional spot checks to verify that the physical goods correspond to those certified.

 Imagine several EU Trade Centres in Great Britain (both mainland and N. Ireland – the North is very sensitive to being treated differently from the Mainland) and within the Republic where all goods destined for the EU or the UK respectively via Northern Ireland would be processed, including payment of duties and the like, before they actually left British or Irish territory. Once cleared and certified, the need for processing at the frontiers is obviated and the Irish border can remain open as it is today. This would, naturally, apply to imported goods from third countries.

This proposal doesn’t need to rely on technological solutions. It is unnecessary because the UK will be enforcing the entirety of EU law through its domestic legal system, including its criminal system, reinforced by strict controls, including EU official presence and participation in control sites. Technological solutions are necessary in a trade context in which there is regulatory asymmetry between two countries and no integration in reciprocal controls. In our proposal, which ensures full enforcement under EU standards in Northern Ireland and integrated checks and controls in production and export through permanent and spot checks outside the perimeter of the frontier, technological solutions are not needed.

Faull’s plan was summarily dismissed by the Commission  he served for so long.  But why? Because it removed the EU veto over tariff and regulatory change.  This can only mean that the EU and Ireland do not trust the UK to keep its word even if enshrined legislation. Why then do they trust the UK over the terms of the GFA settlement? A new deal could be linked to the GFA, with the EU recognised as a partner. This would not be the sort of bilateralism between the UK and the Republic which the EU will not countenance and Dublin fears as a British ruse to lure them back into their orbit.

For EU supporters of whom I’m one, the backstop is a benign link with the EU even after the UK’s formal departure from the institutions, giving  Northern Ireland the best of both worlds.  To Brexiteers and the new UK government, it’s a constitutional monstrosity that gives the EU a veto over  the changing the relationship and arguably perpetuates it for NI.

If there was mutual trust it’s hard to see much practical difference on the ground between the operations of the backstop if required, Faull’s plan and even the ideal  final negotiated solution. But the bogey of the backstop would be removed.

The drama in Westminster begins next week. The real action should take place in the bleak chambers of Brussels.