Brexit blog

How to replace the backstop?

Aug 30, 2019 1:38:38 PM / by Lars Karlsson

We all know that PM Boris Johnson has ruled out the current Withdrawal Agreement due to the backstop and many people are saying that no alternative to the backstop has been presented. This is not correct.

The Alternative Arrangements Commission (AAC), co-chaired by Rt Hon Nicky Morgan MP and Rt Hon Greg Hands MP - both remainers - was initiated and set-up by Prosperity UK. The AAC through its Technical Panel presented in July its final report outlining Alternative Arrangements to the backstop and a draft protocol mechanism for the Withdrawal Agreement. 

I was one of the experts of the Technical Panel and during eight weeks we met with and consulted stakeholders, while we drafted a propsal consisting a set of alternatives that could replace the backstop. 

The key points of our proposal are:

  • Working Alternative Arrangements should be fully up and running within three years, with the ability to implement some measures considerably sooner.
  • Alternative Arrangements are available through harnessing existing technologies and Customs best practice; futuristic high-tech solutions are not required.
  • New technology has a role to support policy, but any technology suggested for deployment in the first instance is already in use elsewhere.
  • A one size fits all solution should be avoided; instead people and traders should be given the maximum possible choice of options.
  • A multi-tier trusted trader programme for large and medium sized companies should be introduced, with exemptions for the smallest companies.
  • The use of transit in the general trading case to ensure no checks at the border.
  • Building on the Single Epidemiological Unit, which currently exists on the Island of Ireland, we suggest a common Sanitary and Phyto-Sanitary (SPS) zone for the ld be up to the Northern Irish executive and the Northern Ireland Assembly, after consultation with the Northern-South Ministerial Council and the British-Irish Council, whether to align with the Irish and EU regime or the rest of the UK.
  • In the event no common regulatory areas can be achieved, transit for the general case would include Sanitary and Phyto-Sanitary (SPS) checks to be carried out by mobile units away from the border using the existing EU Union Customs code or a common area for SPS measures.
  • Enhanced Economic Zones, benefiting from relevant WTO exemptions, such as frontier traffic and national security, offer potentially valuable solutions which respect the realities of border and cross-border communities.
  • A transitional adjustment fund paid for by the UK, to assist with the implementation of Alternative Arrangements on both sides of the Irish border for small businesses.
  • A capacity building fund paid for by the UK, to support customs development for UK and IE governments.
  • An independent arbitration panel and a specialist committee to advise on implementation.

These are the main suggestions of the report. In addition a mechanism with protocols to replace the backstop in the WA has been developed.

Protocol AB adds an additional protocol into the existing Withdrawal Agreement and incorporates a list of UK obligations which, if satisfied, would mean that the Backstop Protocol would not be triggered, subject to dispute resolution via an independent arbitration mechanism.

Since these obligations are entirely on the UK side, it would be for the UK to ensure that the backstop is not triggered as long as it fulfils the commitments set out.

Protocol C is a standalone protocol that also delivers Alternative Arrangements in any other scenario. Since it is consistent with any new deal the UK might do with the EU, it could also be used to agree these arrangements as a fallback in the event of No Deal. It is intended to assist both sides in avoiding the challenges recently alluded to by both the Irish Government and the Department for the Economy in Northern Ireland.

The report has been presented to involved parties.

In summary we are convinced that this is the way forward and the Alternative Arrangements can be implemented, not to the 31 October, but within a period of 36 months. Some of the solutions are available already today, while some of the main proposals takes 9-12 months. 

In the report we conclude:

- It is possible to handle Customs and Border procedures by moving the formalities away from the border (to before and after),

- Alternative Arrangements should be based on optimizing existing Customs Procedures in line with international standards and laws, and

- Alternative Arrangements is not about technology unicorns, it is about using a set of different already existing (in internal law as well as in the EU Union Customs Code) technical solutions i.e; like AEO/Trusted Traders, Transit, Simplified procedures, Simplified reporting etc to its maximum (supported by technology when needed). 

The important thing is to protect the interest of both parties to maintain safety, security, compliance while supporting traders to fulfil their obligations with maximum fascilitation and minimal cost. It is possible to implement these Alternative Arrangements step-by-step within a transition period if there is a political will to do so.

You can find the Alternative Arrangements Report and Executive Summary here: www.prosperity-uk.com/aacabout/



Lars Karlsson is Doctor of Education (honoris causa) and holds a Master in International Customs Law and Administration. He is former Director of World Customs Organization and former Director of Swedish Customs.

Topics: Brexit, Backstop

Lars Karlsson

Written by Lars Karlsson

Managing Director at KGH Global Consulting.