The withdrawal method
This morning on the Marr Show Sajid Javid called the Commons vote on the Brady amendment "an acceptance of [May's] deal subject to a change, alternative arrangements¹ for the backstop". The plan is to "try and find an alternative arrangement². And Steve Barclay, the Brexit Secretary will be leading on that".This is a reasonable reading of Graham Brady's vacuous amendment (see Tuesday's Commons Order Paper, top of page 21). In interviews after the vote, Brady suggested "there could be a binding addendum to the withdrawal agreement which puts a time limit on the backstop. This could either stipulate it will end by a certain fixed date, or that it could last for no more than a certain period of time" and possibly "a provision that allows for either side to withdraw from the backstop under certain conditions as a means of breaking the Brexit impasse".
And back to Javid: "The Attorney General, Geoffrey Cox, will be leading on another very important strand of work, which is to see if it’s not an alternative arrangement³ can there be a hard time limit to any backstop, or a proper exit mechanism".
So the Attorney General's job is to look for a time limit to, or an exit clause from, the backstop if the Brexit Secretary fails to find... an alternative arrangement which might be a time limit to, or an exit clause from, the backstop. My waffle meter is twitching.
Javid wasn't done. He then told us "in terms of an alternative arrangement⁴, it can be done. In my own department I’ve got Border Force. And I asked Border Force months ago to advise me, to look at what alternative arrangements⁵ are possible, and they’ve shown me quite clearly you can have no hard border on the island of Ireland and you can use existing technology. It’s perfectly possible. The only thing that’s missing is a bit of goodwill on the EU side".
Border Force is "a law enforcement command within the Home Office [which] secure[s] the UK border by carrying out immigration and customs controls for people and goods entering the UK". And they told Javid months ago that this was a non-issue. Apparently.
Has he only just realised the significance of what they told him? Has he not passed the good tidings on to his boss? Because other people have, including various members of the European Research Group and their favourite customs expert Hans Maessen, Brexit adviser at SGS Government and Institutions Services.
I don't discount Mr Maessen's experience, but he has failed to convince the prime minister so far, or indeed Michel Barnier, both of whom you would assume to have the best institutional advice at their beck and call.
But never mind, at PMQs the day after the Brady vote May covered all the bases. She told Jeremy Corbyn she had heard "proposals such as a unilateral exit mechanism or a time limit to the backstop", and "the political declaration already refers to alternative arrangements and raises a number of proposals that can be addressed, such as mutual recognition of trusted trader schemes". She's considering all the alternative alternative arrangements.
The legally binding withdrawal agreement (Protocol on Ireland/Northern Ireland, page 303) refers back to "the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations" from December 2017, which "outlines three different scenarios for protecting North-South cooperation and avoiding a hard border," and states "this Protocol is based on the third scenario of maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed". That's the backstop, to apply unless and until something better comes along to do the same job.
The non-binding political declaration (Articles 26 and 27) talks of "making use of all available facilitative arrangements and technologies... to consider mutual recognition of trusted traders’ programmes, administrative cooperation in customs matters and mutual assistance, including for the recovery of claims related to taxes and duties, and through the exchange of information to combat customs fraud and other illegal activity... Such facilitative arrangements and technologies will also be considered in developing any alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing".
Letting the clock do the work
Not exactly definite is it? Another government could do pretty much what it liked with the political declaration, but it's that "unless and until" in the withdrawal agreement that Brady has to deal with.
May, Javid & co are telling us nothing. We know they don't think we deserve to know anything, but could it actually be because they have nothing to say?
Meanwhile...
I'm reminded by BBC Brexitcast that Craigavon-based Almac, Northern Ireland's biggest pharmaceutical company, has opened a new factory south of the border. Most of the company's business is with the Republic, and there's a risk that products will have to be certified twice, for sale in the EU and outside. The development has been "supported by the Department of Jobs, Enterprise and Innovation through Ireland’s inward investment promotion agency IDA Ireland" and "will be utilised by Almac Pharma Services and Almac Clinical
Services, both of which are already registered to operate in the
Republic".
And the Border Delivery Group, led by HMRC, has cancelled a briefing meeting with NI business for a third time, because they have been given no political direction on No Deal.
And the head of the Northern Ireland civil service (with no more to go on than a two-page memo from Arlene Foster and the late Martin McGuinness) has warned Westminster and Whitehall that "businesses are going to vote with their feet" because nobody knows how the border is going to operate if there's No Deal.
And finally...
Again from Brexitcast, leaders of EU member states are off to Sharm el Sheikh for a get together with African leaders on 24 February, which seems like a good opportunity to have a special EU Council meeting on the side. But May might need two special council meetings...
One perhaps to authorise the Union Chief Negotiator to pursue this path as could require new negotiating guidelines if backstop to be excised - the other to sign off on any agreed text— William Bain (@William_Bain) January 29, 2019
