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Alternatives to the Northern Ireland Protocol
There have been various alternative proposals to the Northern Ireland Protocol over the years since the Brexit referendum.
Despite the EU, Ireland and others saying there is no alternative to the Protocol — the Protocol itself has clauses that allow all or parts of the Protocol to be superseded and also for the Northern Ireland Assembly to vote down parts of the Protocol.
Below is a list with links and brief summaries.
- Mutual Enforcement — Centre for Brexit Policy
- Alternative Arrangement Commission proposals (link)
- Hans Maessen proposals
- Smart Border 2.1 — Lars Karlson
- The ‘Backstop’ Paralysis: A Way Out — Lord Bew / Policy Exchange
- Northern Ireland Affairs Committee report
- The Frontstop — John Hoey
- Northern Ireland Civil Service Report
- Livestock & Meat Commission Cyprus model — The Anderson Centre
- Northern Ireland as a Freeport — FSB Northern Ireland
Mutual Enforcement
This idea has most recently been proposed by Edgar Miller (Senior Visiting Fellow, Cass Business School), Barnabas Reynolds (Partner and Global Head of Financial Institutions Shearman & Sterling) & Lord Trimble Former First Minister of Northern Ireland (Nobel Peace Prize for work leading to the Good Friday Agreement) but alternate versions have previously been proposed by the Ulster Unionist Party.
Another version compiled by former British European Commission official Sir Jonathan Faull KCMG (Chair of European Public Affairs at the Brunswick Group and former Director-General at the European Commission), Joseph H.H. Weiler (Professor at NYU School of Law, Senior Fellow at the Harvard Centre for European Studies, and former President of the European University Institute, Florence) & Daniel Sarmiento (Professor of EU and Administrative Law at the University Complutense of Madrid and Editor-in-Chief of EU Law Live) can be found here.
“Mutual Enforcement of regulations by the UK and EU in respect of trade. This approach would ensure — as a matter of UK law — that anyone sending
goods into the EU would have to comply with all EU rules and they would face hefty fines in UK courts if they failed to do so. The reverse would apply on goods leaving the republic of Ireland across the land border into
Northern Ireland.
The system requires each side to rely on the other to enforce their rules — not on border checks. Any breaches detected on either side could be notified to the authorities in the other jurisdiction. Issues are then dealt with at the relevant exporter (i.e. the source) once they become obvious through checks at point of sale or distribution in the destination.. This is self-policing — it ensures that enforcement effort is focused on those issues that arise in the destination jurisdiction and is also pointed at the exporter as the source of
the problem, rather than at everyone in a border control structure. Severe penalties would increase the effectiveness of the regime by acting as a deterrent. Importantly, the UK-EU border would be restored to the
land border between Northern Ireland and the Republic of Ireland, where trade is many times less significant than the sea-bridge between Great Britain and Northern Ireland.”
Alternative Arrangement Commission proposals
These proposals were drafted by Nicky Morgan MP, Greg Hands MP, Tony Smith OBE (former Director General of UK Border Force), Lars Karlsson (former Director of World Customs Organization and former Director of Swedish Customs), Lockwood Smith (former New Zealand trade minister), Alan Oxley (former Australian ambassador to GATT), Peter Allgeier (former US ambassador to WTO), John Weekes (former Canadian ambassador to WTO) &Eduardo Perez-Motta (former Mexican ambassador to WTO) amongst others.
To quote Lars Karlsson “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).”
Alternative arrangements were examined in Parliament
The Hans Maessen Proposals
Hans Maessen is the former chairman of the Dutch Customs Brokers Association. The proposals are outlined over here. It basically outlines administrative processes to track goods similar to what already occurs for livestock and milk tankers crossing the NI-ROI border where checks and administrative processes occur at the point of origin and point of destination.
Smart Border 2.1
Lars Karlsson (former Director of World Customs Organization and former Director of Swedish Customs) “In May 2017, the European Parliament Constitutional Affairs Committee asked me to write an academic research report on how to design the new post-Brexit Borders between European Union and United Kingdom, based international standards and global best practices.”
The Northern Ireland Affairs Committee report
The Northern Ireland Affairs Committee report concluded that a technical solution to the Irish border Brexit issue is possible.
Northern Ireland Civil Service report
Northern Ireland Civil Service Brexit report by Eric Pickett (a German lawyer specialising in EU customs law, trade remedies and WTO law) & Michael Lux (25 years head of unit in the Taxation and Customs Union Directorate-General of the European Commission) produced the NICS report outlining various ni-ROI border facilitations.
Cyprus Model
The Livestock and Meat Commission previously outlined a model that would allow the free flow of agri-food products between Northern Ireland and the Republic.
Federation of Small Businesses Freeport proposal
The Federation of Small Businesses have previously proposed that Northern Ireland should become a Free Port to maintain frictionless trade with GB & the Republic of Ireland whilst NI would leave the EU customs union & single market with the rest of the UK.
Other information
The Ulster Unionist Party have backed mutual enforcement along with all island market surveillance
Methods to mitigate Sanitary and Phytosanitary checks including existing pre inspection schemes.
Switzerland imports US Hormone treated beef but avoids SPS checks at Swiss-EU Border Inspection Posts due to a deal with the EU on very strict labelling. Surely similar can apply to Northern Ireland and the Republic?
Article 73 of EU regulation 2017/625 allowing for pre inspection of goods to allow minimal SPS checks
Existing EU regulations allow for pre checks in Northern Ireland on food products to vastly reduced SPS checks or having to present to an EU BIP according to the latest NI Civil Service report
Here are the previous EU dedramatising measures set out in a speech by Michel Barnier at the closing session of Eurochambre’s European Parliament of Enterprises 2018 outlining regulatory checks can happen away from the border at premises.
https://twitter.com/Kilsally/status/1306342921667522560?s=20
