Richard North, 29/06/2019  

One would expect the Guardian to be opposed to the accession of Alexander Boris de Pfeffel Johnson to the premiership. In fact, that very opposition tends to confirm to his supporters his suitability for the post, almost to the extent that they would be troubled if the newspaper had anything good to say about him.

As such, if the paper is to make even a dent in his campaign, it needs to be on top of its game, with hard-hitting, fact-based criticism which cannot be refuted (as opposed to denied). But, if this is the best the paper has to offer, it is not going to get anywhere at all. History is simply repeating itself, where the lacklustre "remain" campaign was unable to make a serious dent in the Vote Leave's efforts, crass though they were.

Notwithstanding the extremely undesirable characteristics of the man (which should disqualify him from office, but will not), the point at issue is that the effective "deal breaker" on Brexit is the Irish border question. Unless that is solved, we end up with a hard border, with the received wisdom having us lining up for a re-run of the Troubles.

To avoid this, the Guardian piece tells us that Johnson will rely on "so-called alternative arrangements – technological approaches by which customs and regulations checks would take place automatically, or away from the frontier". And, asking whether this stacks up, the Guardian asserts:
Not for now – the consensus among experts (and the EU) is that such technology is several years away from being useable, and there is not the slightest chance of a system being in place for 31 October.
To dismiss this merely as weak would be a gross understatement. It manages both to misrepresent Johnson's pitch and then to neglect his idea of negotiating a new "implementation period" which would give him time to put his plan into effect.

In this context, the paper needed to focus on the fact that Johnson is relying not just on "alternative arrangements", but the Shanker Singham version to get him off the hook. And that, supposedly, has specific characteristics which effectively neutralise the criticisms directed at the generic idea.

Trudging wearily behind the curve, the Guardian resorts to the pedestrian device of "the consensus among experts" (and the EU), to assert that "such technology is several years away from being useable, and there is not the slightest chance of a system being in place for 31 October", not realising that Singham is already streets ahead of their game.

Carefully downplaying the role of technology, Singham writes:
While we see a role for innovation in border processes around the world, we have intentionally restricted our work to existing legal frameworks, administrative processes, software and systems solutions and existing technology devices to ensure that the ideas in this report could be agreed, implemented and tested within three years.
On the face of it, this looks eminently reasonable – which is the intention – ostensibly bringing the scheme comfortably within the time framework of Johnson's "implementation period".

Arguing that there won't be an implementation period with a no-deal Brexit is not terribly powerful. As long as Johnson's supporters think he can walk on water, such conjecture (however well-founded) lacks the power of the "killer punch" that will destroy the plan. The Guardian needs irrefutable facts.

Would that it knew it, Singham provides all the material needed for, in asserting that his Alternative Arrangements Commission (AAC) has intentionally restricted its work to " existing legal frameworks", he is perpetrating an absolute and demonstrable lie.

From my previous piece, we see Singham's determination to pretend that veterinary checks can not only be moved "beyond the border", but also that there were " new European regulations" that allow these checks to be done outside a Border Inspection Post. His relevant claim, made to the Northern Ireland Affairs Committee, is here:
The point is that in the ordinary case, when a border emerges like this, there would be a requirement to have a Border Inspection Post at the border. Obviously, we can't do that for the island of Ireland so we what we need to do is what are the current Union Customs Code derogations that allow you to have a check away from the border, or the inspection post away from the border. So we've take advantage of that, and we've also taken advantage of the direction of travel of the European Union regulation. There are new European regulations coming out that say you can do more of these veterinary checks outside even a Border Inspection Post, that you can do them even with these sort of things, mobile units and veterinary teams.
Taking Singham at his word, that his Commission is relying on "existing legal frameworks", he refers to the "Union Customs Code and BIP Regulation". Specifically, in his report, he argues:
We advocate a distributed BIP structure which would consist of documentary and verification inspections taking place at a remote site. Any invasive physical inspection that may be required according to the risk assessment of the authorities would be carried out in premises of dispatch or arrival, or at other premises such as those of the logistics service providers, if particular premises do not have sufficient space for adequate inspection as per the BIP regulation that would apply in IE.
We can ignore the Union Customs Code, as this does not have any relevance, which leaves us with the "BIP Regulation". Oddly enough, Singham cites as his "BIP Regulation": Commission Decision 2009/821/EC of 28 September 2009 drawing up a list of approved border inspection posts, laying down certain rules on the inspections carried out by Commission veterinary experts and laying down the veterinary units in Traces, OJ L296/1 (12.11.2009), as amended.

Actually, in the past there has been no single "BIP Regulation" as such. The law on official controls has been built-up piecemeal, encompassing the following: Regulations (EC) No 999/2001, (EC) No 396/2005, (EC) No 1069/2009, (EC) No 1107/2009, (EU) No 1151/2012, (EU) No 652/2014, (EU) 2016/429 and (EU) 2016/2031 of the European Parliament and of the Council, Council Regulations (EC) No 1/2005 and (EC) No 1099/2009 and Council Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC and 2008/120/EC, Regulations (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC, 91/496/EEC, 96/23/EC, 96/93/EC and 97/78/ EC and Council Decision 92/438/EEC (Official Controls Regulation).

Fortunately, one does not have to dwell on this mess as the law has been extensively revised and consolidated, the main provisions being covered by Regulation (EU) 2017/625. Taking effect from 14 December of this year, this is the law which will set the requirements for the Irish border – and is the law Singham should have cited.

In this Regulation, the key Articles are 47 and 48, under the general heading: "Animals and goods subject to official controls at border control posts". Article 47 states:
1. To ascertain compliance with the rules referred to in Article 1(2), the competent authorities shall perform official controls, at the border control post of first arrival into the Union, on each consignment of the following categories of animals and goods entering the Union:

a) animals; (b) products of animal origin, germinal products and animal by-products; (c) plants, plant products, and other objects as referred to in the lists established pursuant to Articles 72(1) and 74(1) of Regulation (EU) 2016/2031; etc ...
Article 48 gives the Commission powers to set out exemptions, but these are very limited, applying to such things as trade samples, animals and goods intended for scientific purposes and pet animals.

There is absolutely no provision in EU law for block exemptions, allowing Border Control Posts (as they are to be called) to be by-passed in the way the Singham imagines. And, as to "mobile units", the only thing permitted is the "mobile official control team", providing staff for dispersed BCPs performing controls on consignments of "unprocessed logs and sawn and chipped wood".

Singham also tries to pretend that posts can be located away from the border, but again exemptions are very limited, They apply, for instance, to where "maritime wharves are surrounded by cliffs". This could give some relief to ports such as Dover but, to my certain knowledge, there is a remarkable lack of cliffs on crossing points into the Irish Republic.

All of this, then, completely knocks out any idea of avoiding a hard border on the island of Ireland. Even Singham concedes that veterinary inspection is the "most challenging issue" and tells the Northern Ireland Affairs Committee that "Border Inspection Post[s] at the border" is something "we can't do that for the island of Ireland".

In respect of Johnson's reliance on "alternative arrangements", therefore, all the Guardian needed to do was set out the legal framework applicable in post-Brexit Ireland, and cite Shanker Singham. But then, that would require the paper to know what it was talking about, and perhaps break away from the tame coterie of "experts" which it normally employs. The "killer punches" are there. It just has to use them.

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