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Topic for December - The Proposed Brexit Agreement Impasse

    • 99 posts
    December 15, 2018 12:00 PM GMT

    Given the turmoil over the Brexit agreement, we've extended our focus on the subject into December to look at solutions.

    We present below an idea for one possible solution based on our understanding of the wording of the agreement, which could be acceptable to EU, DUP, and the different factions in the UK Parliament.

    What do you think? Could this be the basis of a solution?

    This idea is also available as a pdf document at: http://www.probably42.net/documents/2/50/pulling-the-rabbit-out-of-the-hat-a-solution-to-the-brexit-agreement-impasse


    Pulling the rabbit out of the hat – A solution to the Brexit Agreement Impasse

    There appears to be the basis of a solution to the problem of the Northern Ireland backstop which is already embedded in the words of the 26-page Future Relationship document, which if brought back into a legally binding addendum to the Withdrawal Agreement could potentially satisfy all sides, while also being consistent with existing positions.

    To explain:

    In enhancing the 7-page Future Relationship document to the 26- page one, the section on Goods was amplified into a section on Customs (Section D and related section E). It amplifies the intent to find technology solutions and arrangements such as trusted trader schemes to both facilitate trade and also to offer an alternative to the backstop problem.

    It’s important to read both section D and E but In particular note item 27 re the border:

    D. Customs

    26. The Parties will put in place ambitious customs arrangements, in pursuit of their overall objectives. In doing so, the Parties envisage making use of all available facilitative arrangements and technologies, in full respect of their legal orders and ensuring that customs authorities are able to protect the Parties’ respective financial interests and enforce public policies. To this end, they intend to consider mutual recognition of trusted traders’ programmes, administrative cooperation in customs matters and mutual assistance, including for the recovery of claims related to taxes and duties, and through the exchange of information to combat customs fraud and other illegal activity.

    27. Such facilitative arrangements and technologies will also be considered in developing any alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing.

    E. Implications for checks and controls

    28. The Parties envisage that the extent of the United Kingdom’s commitments on customs and regulatory cooperation, including with regard to alignment of rules, would be taken into account in the application of related checks and controls, considering this as a factor in reducing risk. This, combined with the use of all available facilitative arrangements as described above, can lead to a spectrum of different outcomes for administrative processes as well as checks and controls, and note in this context their wish to be as ambitious as possible, while respecting the integrity of their respective markets and legal orders.

    The argument to date against this type of solution to the border problem seems to be that not all the technology currently exists. However, this paragraph appears to recognise that it, along with the other facilitative arrangements mentioned, would be an acceptable solution and is indeed the intent for it to be a replacement for the current backstop once it does exist.

    Given that is the case, it would seem that pulling this already agreed item back into a legal addendum to the Withdrawal agreement and clarifying it and strengthening it even further by

    (a) being explicit that this is the intended replacement for the existing customs territory backstop to be adopted at the earliest possible moment

    (b)  stating that to remove the technology shortfall a joint project will be initiated to develop any additions to the IT/Technology that already exists, to be funded and commenced immediately with a target implementation date well before the end of the transition period. With best endeavours to achieve this by both parties to the agreement.

    From a political point of view this would seem to satisfy the positions and honour of all parties:

    • EU in maintaining the agreement intact but ‘clarifying’ in a legally binding way the intent of something already intended in the future relationship document
    • UK Government/Parliament and DUP in minimizing the risk that the customs territory backstop should ever come into force, but even if it did, having a way out as soon as the technology project was complete. This would also mean that locking us into the customs territory in perpetuity couldn’t be used as a negotiating ploy.
    • This also has the attribute of being a very positive technology development and having value for the future of trade not just in the island of Ireland but smoothing trade between any countries inside or outside the EU where we care to use it.
    • It also has the merit of bringing out an important example of whether the Future Relationship document means what it says




    This post was edited by Tony Clack at December 15, 2018 12:21 PM GMT
    • 99 posts
    January 16, 2019 11:54 AM GMT
    The recent exchange of 'clarification letters' between UK and EU has given further weight to this suggestion, as the words on the technology and facilitation alternative to the backstop have been elevated into those letters. 
    As Parliament has just voted down the May deal, primarily because of the backstop, this suggestion, which should satisfy most MPs, just needs to be put as an amendment to Parliament to then take to the EU. 
    • 99 posts
    March 12, 2019 11:53 AM GMT

    It turns out that this solution was right on the money. It's exactly what has been implemented in the additional agreement documents. It just remains to be seen if it gets voted through tonight.   

    • 99 posts
    September 23, 2019 4:04 PM BST

    6 months on and a Prime Minister later, the above proposition looks as though it will be the central part of attempts to replace the current backstop. Can Boris pull it off?