Why a frontstop cannot replace the backstop. A Modest Reply to Professor JHH Weiler.


Last week, professor JHH Weiler published a blog with which he proposes ‘A Frontstop Approach to the Backstop Conundrum’. His suggestion entails ‘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.’ Interestingly, 2 days later, the Northern Ireland born Labour MP Kate Hoey, a passionate proponent of Brexit, referred to Weiler’s suggestion. In the course of an oral evidence session of the former Brexit Secretary Dominic Raab, she endorsed it as a possible solution to the Irish border conundrum.

Professor Weiler’s nuanced approach acknowledges potential objections to his suggestion. In particular, he refers to smuggling and the issue concerning ‘goods imported from third countries and then integrated to into products produced in the UK’ as problematic aspects that would need further consideration. In my response to his thought-provoking piece, I would like to refer to two further issues that a frontstop approach cannot really solve. In that sense, I will be arguing that a frontstop approach cannot replace the backstop. But it could potentially support it.

Why would a frontstop not work?

The first issue relates to geography. It is worth noting that all the examples of the frontstop approach to which professor Weiler refers (e.g. travelling from Ireland or Canada or the Carribbean to the United States) do not belong to the same geographical and economic unit in the way that there is an all-Ireland economy. To put it simply. Let’s take as an example the village of Pettigo. It is a small village that is bisected by the Termon River, which is part of the border between the Republic of Ireland and Northern Ireland. In other words, one part of the village is in the Republic and the other in the UK. Now let’s imagine that a trader wants to cross some goods from one side to the village to the other. What at the moment is a five minutes job, in the future, with a frontstop approach this becomes a very time-consuming exercise causing problems to the everyday life of the people, raising the costs for small businesses and creating frictions to the all-Ireland the economy. Virtually all the companies that are established in the border regions of the island would face similar issues. 

One might reasonably argue, however, that such frictions are a small price to pay in order to preserve the integrity of the Good Friday Agreement. Which brings me to my second objection. The top police officer of Northern Ireland has warned that violent dissident republicans would see as ‘fair game’ for attack this kind of posts and installations created as a result of a ‘hard Brexit’. In an outstanding piece, Dearbhail McDonald reminded us‘ that the first shots of the Troubles were fired at customs posts such as Newry, requiring the RUC, and later the British army to protect officials, civilians and military alike.’ This comes on top of the fact that -at least during the Troubles- there was a certain overlap between paramilitary circles and those in charge of cross-border smuggling.

Of course, a frontstop approach does not require customs posts on the border per se. But would the paramilitaries reconcile with the fact that those physical installations ‘where all goods destined for Ireland via Northern Ireland would be processed’ are not on the actual border but somewhere in the hinterland? I remain doubtful.

Similar criticisms could also be mounted against solutions that are solely based on technology like the one leaked to the British press on 5 February. First of all, such solutions sit rather uncomfortably with the commitment that the Prime Minister repeated this week in Belfast. According to it, the UK Government has ruled out a ‘hard border’ ‘including any physical infrastructure or related checks and controls’. Secondly, such arrangements ‘invite a regulatory and security mission creep that will disrupt lives and livelihoods and [may] prove tempting’ for the people that want to take advantage of the frictions that Brexit imposes to destabilize the fragile peace process.

Solving the conundrum

The British prime Minister, Theresa May has insisted that the result of the Brexit referendum ‘was a vote to take control of our borders [...].’ In order to do that, the UK will be leaving both the single market and the customs union. At the same time, her government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. 

After two years of negotiations, the UK government has to reconcile itself with a rather uncomfortable truth. Unless the UK changes its red lines, the Irish border conundrum can only be solved if Northern Ireland enjoys a differentiated and more integrated relationship with the EU than the rest of the UK. That was part of the formula that the famous paragraph 49 of the December Joint Report introduced to ‘square the circle’. Indeed, in the first draft of the Withdrawal Agreement, the EU proposed that Northern Ireland would remain part of the EU customs territory even after Brexit.

In an Independent Opinion commissioned by the GUE/NGL parliamentary group of the European Parliament, I have argued for an enhanced version of that backstop. According to it, the UK Withdrawal Agreement should have recognised the unique circumstances of Northern Ireland by providing for a special designated status. Such a status should be understood as a mutually agreed arrangement that respects and protects the unique constitutional status of the region as provided by all three Strands of the Good Friday Agreement. In particular, the special designated status should respect the principle of consent and the right of self-determination by providing for a legal route for the reintegration of Northern Ireland into the EU. It should also protect the all-island economy by allowing for the participation of the region in the single market and the EU Customs Union. This should not happen at the expense of weakening ‘East-West’ institutions, however (i.e. between the Republic of Ireland and the UK). In fact, their strengthening is necessary in order to manage the frictions that Northern Ireland’s remaining in the single market and the EU Customs Union would cause to its economic relationship with the rest of the UK. 

I do recognize, however, that the notion of Northern Ireland remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures is anathema to many, not least the DUP. This is why the backstop arrangement has been amended significantly and appears differently in the finalised version of the withdrawal treaty. Barring a deal on free trade that secures a frictionless border, the UK as a whole will remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border.

Despite those significant changes, the Prime Minister and the DUP continued expressing their concerns over the effect of the backstop on the ‘constitutional integrity’ of the UK. As I have suggested elsewhere, to argue for Northern Ireland -which already differentiates from the rest of the UK even in the area of protection of fundamental rights- that maintaining regulatory equivalence with the EU would threaten the UK’s constitutional integrity is a gross and needless overstatement.

Within the Union legal order there are a number of cases where different parts of a member state might have different relationships with the EU. The sovereignty of a Member State over these areas has never been challenged just because EU law is applied differently there.  More interestingly, the UK has accepted the principle of differentiated Brexit in the case of the UK Sovereign Base Areas in Cyprus. In order to honour their international legal obligations under the Treaty of Establishment, the UK in a Special Protocol to the Withdrawal Agreement has accepted that those areas will remain within the EU customs territory even after Brexit takes place. This is not to suggest that the historical and political contexts of the UK Sovereign Base Areas bear any similarity to those of Northern Ireland. However, a similar argument could be constructed mutatis mutandis with regard to a differentiated arrangement for Northern Ireland as a protection to the Good Friday Agreement in order to ‘detoxify’ the backstop.

Does all that mean that the ‘backstop solution’ is completely unproblematic? Not quite. To the extent that in the future the UK will decide to distance itself from the regulatory framework of the EU, a differentiated Brexit could create significant tensions to the economic integration of Northern Ireland with the rest of the UK.  And this is where the frontstop approach could prove particularly helpful. In the context of the process of the ‘de-dramatisation’ of the protocol, a frontstop approach could help minimize the frictions on the crossing of goods from the rest of the UK to Northern Ireland and thus respond to some of the worries of the unionist community.

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