A frontstop will keep an invisible Irish border and is an alternative to the Brexit backstop

The Brexit impasse over the border and the backstop reminds me of the run up to the Belfast (Good Friday) Agreement (GFA).

How could two such divergent positions be reconciled? And yet they were.

Essential differences in national identity were acknowledged, respected, and accommodated.

In the run-up to the Brexit referendum in 2016 I recognised that if Leave won, Northern Ireland’s unique status, and the quiet Irish frontier, would come to the fore in subsequent proceedings.

So now we have this seeming conundrum: The Ireland / Northern Ireland frontier must remain invisible and inert; the backstop is unacceptable to many Leavers since it implies an indefinite customs union; and the EU needs to maintain the integrity of its customs and regulatory territory.

Yet where there is political will, legal solutions can be created. The GFA is an outstanding example.

A credible way forward is the so-called ‘frontstop’ approach published by Joseph Weiler, EU Jean Monnet Chair of European Law at NYU.

As well as being an eminent jurist with long experience of trade law, Weiler has been a visitor to Northern Ireland since he was a teen in the 1960s.

To see how this frontstop proposal might work it’s useful first to make a distinction between a frontier and a border. The “frontier” on the island of Ireland delineates the territorial entities Ireland and Northern Ireland.

It is invisible and it needs to stay that way. Unionists in particular need to get a grip on this reality. Brexit or no Brexit there will never be more fences at the boundary of Northern Ireland.

The “border” on the other hand, post Brexit, will distinguish jurisdictional differences between the UK and the EU in such things as VAT, excise duty, import tariffs, regulatory codes, etc.

Traditionally, the operational functions associated with a border — barriers, checkpoints, lorries queueing — were performed at a frontier.

This outdated thinking, that conflates frontiers and borders, seems to have pervaded the EU withdrawal negotiations and may have contributed to the proposed customs union backstop.

Weiler points out that the logic of the proposed Withdrawal Agreement (WA) contains an unpleasant catch 22:

Suppose the UK does achieve a ‘free trade’ settlement with the EU, then goods from third counties could enter the UK under UK custom clearance rules and pay UK custom duty rates.

What would stop them from entering the EU through Northern Ireland, avoiding EU customs clearance? Back to square one, the backstop.

If you’ve flown out of Dublin destined for the United States you will have encountered a version of the frontstop.

After passing through airport security you make your way to United States Customs and Border Protection pre-clearance, which looks and feels like a TSA facility inside America, and is staffed by American officials.

A few paces after immigration you come to US Customs where another official inspects your declaration and asks you to identify your checked luggage.

At the other end of your flight you pick up your belongings from the domestic arrivals baggage carousel and walk out to the street. Your point of entry to the US is Dublin, Ireland.

Imagine a similar concept applied to commercial goods entering the EU from the UK. One can envisage EU pre-clearance frontstop centres around Great Britain and Northern Ireland.

Goods or traders deemed worthy of closer examination might be invited to pass through such centres before heading straight to the fast track lanes for onward travel across the Dover strait or into Ireland.

Frontstop centres could be staffed by EU officials and badged with the EU logo. This would be particularly important in Northern Ireland where flags and emblems have a special part to play in our cultural fetish for marking territory.

Under a frontstop approach the frontier between NI and Ireland remains invisible, and dormant regardless of alterations in tariffs, excise regimes, or regulatory standards for manufactured goods. There would never be ‘hard’ installations.

If IT solutions, legal authority, tough penalties, and in-state spot check monitoring were applied to the exporter, importer, and transporter then cheating could be reduced to an acceptable level.

Bear in mind that only a tiny fraction of the millions of shipping containers arriving in European ports get inspected. And you think there’s no smuggling?

We have been told repeatedly by Theresa May that it’s her deal, or no-deal, or no Brexit. But Donald Tusk, President of the European Council, in his ‘special place in hell’ speech said: “Give us a believable guarantee for peace in Northern Ireland and the UK will leave the EU as a trusted friend...”

‘Trusted friend’ is the status I want my country to have when it leaves EU.

So why not give serious legal, technical, and financial consideration to the frontstop and let’s see if it can respect the letter of the British Irish Agreement and the spirit of the GFA?

There isn’t time to implement any practical aspect of a frontstop before the end of March. However, Weiler points out that a legal guarantee, which the UK and especially the DUP needs, can be given by a decision of the EU’s Heads of State or Government and can be relied upon as a legally binding international agreement.

One could imagine an additional accord being created that puts some elements of the WA, including the backstop, in limbo for a defined period of time while Ireland, Britain, and the EU implement legislation and procedures giving effect to the frontstop.

And all without prejudice to the outcome of negotiations between UK and the EU on their future relationship.

To dismiss this credible way forward without obvious consideration, or technical explanation, would be remiss if not negligent. And while a default or ‘no-deal’ exit is unlikely to be calamitous in the way Project Fear promotes, it could hinder the success of an agreed Brexit.

• Written by John Hoey in February 2019. He manages a cross-community charitable business at a formerly violent interface in West Belfast

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