A Frontstop Approach to the Backstop Conundrum

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The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

If the final status talks result in anything else, say, a Canada style Free Trade Area in goods and some services, even of a profound and capacious character, goods from third countries would still enter the UK under UK custom clearance rules and paying UK custom duty rates. What is to stop them, then,  from entering the EU through Northern Ireland avoiding thus EU customs clearance? Back to square one, back to the Backstop, back to a Customs Union. 

(When you hear talk of the need for “Customs Alignment” or the like it is essentially a customs union with a mask.) 

Thus, in any such future negotiations, both parties will have to submit to the cold logic of the apparent legal impossibility of ensuring, on the one hand the integrity of the customs territory of the Union whilst, on the other hand, maintaining an open border with a country which is a non Member State and which is outside an EU Customs Union. If you want an open border between the North and the Republic, you must be part of a Customs Union. If you do not wish such, you cannot have an open border. 

I say ‘apparent’ legal impossibility – because there is an approach which would obviate this harsh legal logic, an approach which was briefly canvassed at various points in the negotiations but discarded as ‘impractical’. I believe it merits a new examination if the insoluble Backstop conundrum is not to haunt both parties for years to come. What, then, is the Frontstop approach? 

If you have ever flown from Ireland or Canada or the Caribbean to the United States you will have experienced a version of the Frontstop approach. You get off the plane in Boston, or Miami or Los Angeles and just walk into the USA: No passport control, no customs control. How so? Simply because these controls were performed by American officials on Irish or Canadian or Caribbean soil. For travelers, similar arrangements operate at either end of the Channel Tunnel between the UK and France (and thence onward to the rest of the Schengen area). You encounter the UK Border Force in Calais, Brussels and Paris and say bonjour to the French Police aux Frontières in Dover and London’s St Pancras Station.

Suspend your disbelief and imagine several EU Frontstop Centres in Great Britain and the North, (so no difference between the two) where all goods destined for Ireland via Northern Ireland would be processed, including payment of duties and the like, before they actually left British territory. (I will deal with cheats in a minute). Once cleared and certified, the need for processing at the frontiers is obviated and the Irish border can remain open as it is today. 

Some immediate objections come to mind. The first and most obvious is that, if there is no physical control between Belfast and Dublin, the temptation would be huge to drive a lorry through without having been processed and cleared in a Frontstop Centre or change the cargo cleared to uncleared cargo.  A smugglers’ charter! 

I have spent a lifetime in the world of transnational economic and trade law and believe I have a sober and realistic view of the power and limitations of the law. Even with hard physical borders, smuggling and cheating takes place; like unemployment, as long as it is limited, we have learnt to live with it. A so called Hard Border is a lot less hard than one might imagine: Just look at the container depots in all major European ports, where just a miniscule fraction of the thousands of containers are actually inspected. Do you really believe no smuggling takes place? 

Thus, if knowingly transporting or even possessing goods exported from the UK  into Ireland without Frontstop clearance were made a serious criminal offence with correspondingly serious penalties, including jail time (the way we deal with trafficking in stolen goods) ,enforced by spot checks anywhere within the territory of the UK and Ireland – there is no good reason other than convention that the spot checks should take place at the Frontier itself — compliance would be high and, critically, evasion would not be an order of magnitude different from the levels seen under normal border procedures. And even if it is somewhat higher, maybe this is a price worth paying for maintaining the Good Friday Agreement? If one made the transporter as well as the exporter and importer liable, the level of compliance would rise even further. Catching a few cheats through spot checks and publicizing their deserts at the hands of the law would deter all but the hardened smugglers. And as technology develops, enforcement mechanisms would develop correspondingly. 

There is, of course, in the world of customs officials a mind-set attached to physical border controls. It is hard to shake habits on which one was brought up. But note, the Frontstop approach does not suggest the elimination of borders – but rejecting the fetish of walls, fences, inspection booths and long queues. The border remains, its physical manifestation and topographical location are simply moved. In the age of digital trade this is hardly a revolution.

A second objection may relate to goods imported from third countries, and then integrated into products produced in the UK. Depending on the value of the imported components in the final product, such goods may, too, be liable to EU customs duties should they move from the North to the Republic even if, under final status there was a Free Trade Area between the UK and the EU. It will be, under the Frontstop approach, the duty of such producers, under a similar legal regime,  to ensure that these goods are declared, their ‘origin’ ascertained and any duties owed processed through a Frontstop centre. The goods will not necessarily have to be presented physically at the Frontstop centre. When customs officials apply rules of origin to determine where all or part of a product comes from, they use intelligence, look at certificates, carry out random checks and prosecute criminals. They do not open every container, let alone travel around the world looking at factories to see what they are producing. 

This is not the place to address the myriad of details that would need to be worked out. There are not, for example, only customs duties but also regulatory standards to think of. Already now compliance with such takes place away from frontiers. And if a special regulatory carve up for the North, especially as regards livestock were to be established, the Frontstop would would work equally well. The Frontstop approach is not a trade agreement. In professional jargon it is a Trade Facilitation Procedure which is aimed to square the Irish circle. It respects the principle of no physical border between the two parts of the Island, it respects the territorial unity of the United Kingdom and allows the European Union to protect at a level commensurate with traditional frontier controls the integrity of its customs territory. 

As mentioned, in the course of negotiations ideas of this nature were canvassed and rejected as ‘impracticable’. If you stick to this assessment, the result is a stark choice: Either Customs Union or Hard Border. And if the UK crashes out of the EU with a No Deal – the Union will face the dilemma immediately: Either it insists on a hard Irish border in order to protect the integrity of its customs territory or? Or what? It cannot force a Customs Union on the UK so the only alternative would be the Frontstop approach, like it or not. 

There would not be enough time to institute this approach in the weeks remaining before Brexit, so for a short time there would have to be an extension of current arrangements, either through a prolongation of the Article 50 two year limit or through a transitional Customs Union as proposed right now. But in this case since we are dealing with a procedural trade facilitation device we could expect a legally binding commitment with a fixed time set in advance allocating the time necessary for the institution of the Frontstop procedures and, thus, the end of any form of transitional customs union — without prejudice to the outcome of the negotiations for the long term relations between the EU and the UK which, if both parties agreed, might well opt for a Customs Union.

A legally binding commitment could be taken by the EU’s Heads of State or Government (HOSG). The HOSG can take decisions which do not amend EU treaties or legislation, but set out political commitments and understandings about what rules mean in practice and how they should be interpreted. Critically, HOSG decisions can be understood and relied upon as legally binding international agreements. The most recent relevant example is the February 2016 decision recording the agreement reached with David Cameron’s Government, entitled “A new settlement for the United Kingdom within the European Union”, the result of the “renegotiation” preceding the referendum. The UK even registered that HOSG decision as an international agreement in the UN’s depositary of treaties in New York. It has the advantage of binding the national leaders, not just an EU institution, and of adding a gloss to an agreement (in this case the Withdrawal Agreement) without reopening and amending it.

There will be, no doubt, scores of lawyers whose instinct will be to find a myriad of reasons why the Frontstop approach could not work. It would be far more fruitful, as Altiero Spinelli once advocated, if they were instead to use their legal skills and imagination to find ways which would make it work. It is political wisdom as old as the Union itself: Where there is political will, a legal way can be found. It is simply not credible to imagine that three powerful public authorities, the UK, Ireland and the Union itself could not jointly make this approach, which is in their collective interest, work and thus remove one huge road block for future EU UK relations.

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JH says

January 29, 2019

What you are describing for the United States as well as for the Chunnel is known as "pre-clearance", but it applies to mainly passengers and goods they may be carrying. I'm not aware of pre-clearance being capable of handling shipments of goods of the scale being discussed. For the most part, passengers and the relatively few goods they carry can be processed in airports and passenger terminals for rail. What you seem to be describing is applying the same procedure at places in Northern Ireland and Great Britain for goods which in some cases would either be physically too large to accompany passenger traffic (machinery parts for example in some instance) or by in volumes too large to accompany passenger traffic (e.g. 50 crates of apples).

While in theory possible, this might well require breaking down the shipments into sizes that are manageable for such preclearance centres and it would also require:

1. UK preclearance centres in Ireland (and likely in the rest of the EU for reason #2 below)

2. Spot checks not just in Ireland, but in the rest of the EU, because if the spot checks are only in Ireland then some smugglers can get around that smuggling from NI down to ROI and then loading the transporting the goods to say Belgium. Because traffic between Ireland and Belgium is assumed to consist of domestic EU produced goods or goods that have entered into free circulation having already paid the CET in Ireland. For similar reasons goods loaded in Belgium and bound for Ireland are assumed to be either domestic goods or goods which have already been subject to customs duties etc and so could enter Ireland freely and then be smuggled to NI where they could then be shipped to Great Britain in a reverse procedure because anything being loaded in NI and bound for GB would have to be assumed to be either NI produced goods or goods which had already had all relevant UK tariffs paid for on entry from outside the UK.

In essence the backstop that has been agreed upon is essentially the same as your proposal except that the frontstop centres are all located at the ports in NI (and reciprocally would be located at the ports in GB).

Perhaps where this idea might work is if it simply combined both the backstop in theory with the frontstop centres as explicitly outlined here by having dual controls at NI ports (and airports), so that British customs officers would be at NI ports/airports and checking on all goods being loaded there and bound for GB (so NI goods would not face customs controls on arrival in GB - hence pre-clearance for NI goods bound for the rest of the UK) and EU customs officers would be at NI ports/airports and checking all goods being unloaded there (whether bound for NI or onwards due to Ireland).

This will take care of the practicalities. Where it becomes tricky though is that since goods leaving NI for GB are really only intended to end up in GB and not further onward destinations, but goods arriving in NI could be due to stay in NI OR to go on to the EU, then in terms of duties it is easy for preclearance for NI to GB goods to either have UK tariffs applied or to be exempt (in the case of NI produced goods). However for GB to NI goods, all goods will likely need to be subject to the EU's CET to ensure that all goods bound for the EU actually pay the CET. Hence in effect NI would remain in the EU's customs union.

Perhaps at this point Mrs. May's idea of a customs partnership would come into play so that goods that are to be consumed only in NI would get a rebate in the event that they had to pay the EU's CET. This would be hard to administer much like Mrs. May's original idea but it would be much easier to administer in a smaller territory like NI than in all of the UK. Maybe if it was also based off NI businesses doing quarterly returns and claiming rebates then based on the number of goods they can provide proof of local purchase for during the period as against all goods they brought in from outside NI then it could be more easily administered.

David Heilbron Price says

January 29, 2019

Front stop is a powerful technique for reinforcing the common rule of law between countries. However the idea of using a statement (or decree) by the HoSG is not legally secure as it was an attempt (a fudge) to bypass the democratic machinery of the Community Method and was seen at best as a temporary measure.
A core criticism was that agreements, cooked up by leaders in closed session, with no record of their debate, nor means to hold them to account, is hardly democratic. It is not what we should expect from what should be the democratic centre of 28 democracies. The dubious HoSG manoeuvre was also used in May 2013 to rewrite the treaty and recast the treaty obligations about the size of the Commission, the key institution, without any democratic debate by the European people or their parliaments!
Neither Henry VIII-style decrees, nor secretly prepared fudge should be part of what should be the most vibrant democracy in the world.
In the eighteenth century, the Americans called this type of behaviour ‘tyranny’. For them it was the Stamp or the Sugar Act. For Europeans it is a violation of an obvious principle that in a democracy institutions should "work as openly as possible" and "councils should meet in public," TFEU article 15.
The American slogan then could perhaps be rewritten today: “What the Brussels kings have no right to demand, the people have a right to refuse.”
The same criticism of illegitimacy lies at the heart of Brexit imbroglio and its solution. The British government uses article 50 of the Lisbon Treaty. But this was itself cooked up by the HoSG in secret sessions, not a public Convention. The Lisbon Treaty is practically identical to the Constitutional Treaty that was rejected by several Member States in referendums. (The Exit clause was then its article 59.)
Put to a referendum, the EU Treaty would almost certainly have been rejected in UK and several other States IF they had had a chance to vote.
The cause and the solution to Brexit is legitimacy and public approval. Both Blair and Cameron gave a “cast-iron guarantee” that the “massive” constitutional changes to the Community system brought about by the EU Treaty would be subject to a referendum. Both reneged.
Why is this important? Because it lies at the heart of Brexit. If the Lisbon treaty itself has not been democratically activated by a mandatory and long promised referendum, Article 50 cannot be used or activated based on an advisory referendum. It is legally and constitutionally flawed.
So when the people of UK voted to ‘LEAVE the EU’, it should perhaps be understood as either:
(a) leaving the Lisbon or EU Treaty (that the people never agreed to and polls indicated they would never accept) or
(b) Have a referendum to validate and activate the Lisbon Treaty so that the government might use article 50.
A European system built on HoSG decrees is a house built on quicksand.
Two further points. Clarifying this essential constitutional solidity of the “EU treaties” is essential for the future. It would also provide an adequate reason for HMG to ask Brussels for a pause or retraction of article 50 letter while it is being sorted out in Court.
Secondly, the founding document of the European Community system was a Declaration of Interdependence (http:// schuman.info/EuropeDeclaration.htm ) that preceded the Coal and Steel Community, 18 April 1951. It declared that the Community system was based on the fundamental right of the people to choose.

Connla Lyons says

February 10, 2019

This was sort of floated by the EU already. It is at it's core a border between northern ireland and Great Britain. Do the checks at the ports and airports in and out of Ireland. Which is the most efficient means to set up this form of control, much like your example it puts them at points where the movement of goods in and out of the area can efficiently managed and processed without much delay.

But it was shot down by the UK because the DUP opposed any form of separation between them and Great Britain, even if that separation was made as invisible as you suggest it would still be opposed in the UK and never pass.