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Brexit: full stop at the border

2019-06-27 04:57:10

A little while ago, I wrote a piece which referred to the "naming of parts", stressing the importance of clarity and precision in the use of words, remarking that sloppy use of vocabulary leads to confusion and muddle.

But it isn't just the avoidance of confusion and muddle that is at stake. Clarity and precision also goes to credibility. I used for my example the Short Magazine Lee-Enfield (SMLE) rifle and one can imagine the reception which might be given to a self-proclaimed expert on the rifle who referred to the magazine as, say, "the bullet container".

In that context, one takes a rather cynical view of the self-styled Alternative Arrangements Commission (AAC) and its Interim Report. The report is put together by supposed experts but displays an alarming number of what might be called "rookie errors". For instance, if one turns to Chapter 9 (page 109) one sees the assertion that:
Under EU law, there are multiple regulations requiring inspections of animals, animal products, food and plants ("Veterinary and SPS goods") at the EU's external borders. For example, under EU law, imports of plants and plant products must comply with phytosanitary measures that require the goods to undergo customs inspections at the BIP at the point of entry into the EU.
From this short passage, a few points emerge. Firstly, one sees the reference to "Veterinary and SPS goods", which is rather odd. SPS stands for Sanitary and Phytosanitary respectively products of animal and plant origin. The "sanitary" goods are veterinary goods. The term SPS is sufficient the addition of "veterinary" is tautologous and is not used by practitioners.

Secondly, customs do not carry out SPS checks. They are not customs inspections and are carried out entirely separately to customs controls. They include veterinary border controls and plant protection controls, many of which come under the generic term "official controls".

Thirdly, plants and plant products are not inspected in Border Inspection Posts (BIPs), as such. The BIPs are veterinary inspection posts. Legally, under EU law, plants and plant products go to Designated Points of Entry (DPE). However, foodstuffs of plant origin, for the sake of administrative convenience, are often inspected in combined units which are both BIPs and DPEs.

Even if insistence on accuracy in this instance might be regarded (by some) as pedantry, the manifest inaccuracies certainly go to the credibility of the AAC. If they can't get such details right, what credence can be given to the rest of their report?

Furthermore, there is an important omission in the short passage to which I refer. While it is indeed the case that plant and plant products are inspected at DPEs, there is no reference to an important exception which allows approved importers to have their checks carried out "at a place other than the point of entry into the Community or at a place close by". This is quite a crucial point as there is already far more flexibility in the system than is indicated by the original assertion.

As it happens, official controls (which are not mentioned anywhere in the AAC's report by their correct designation), form an important part of the report understandably so, as they create major problems in the event of Brexit, with or without a deal. Under almost all circumstances, the Republic will be required to install on its border with Northern Ireland what are to be renamed Border Control Posts (BCPs), where mandatory SPS checks will have to be carried out on goods imported from the UK (and other third countries).

Given the length of the Irish land border and the multiple crossing points, and the relatively high volume of SPS traffic, this presents one of the most intractable problems for Brexit, and doubly so in the event of a no-deal. Thus, it is one the AAC is keenest to solve, in terms of proposing "alternative arrangements".

But here, the AAC's report is not tainted just by inaccuracy but by a downright lie. Desperate to sell the concept of "beyond the border" inspections, the AAC wants to replace the BIPs/BCPs with "mobile inspection vehicles" which are "capable of providing the platform for required veterinary inspections in-situ on farms and food producers locations".

I will return to the concept of mobile units shortly, but currently, the AAC report does at least acknowledge that, "As a general rule, veterinary inspections must be conducted at BIPs which should be located in the immediate vicinity of the point of entry for the importation of the animals and veterinarians must be present to carry out such inspections".

This is set out in Regulation (EU) 2017/625 although the AAC also asserts that "SPS goods may also be inspected at an approved inland location, for example in a cold storage facility where a container is unloaded". I am unable confirm the veracity of this claim it is unreferenced and I can find no such exception in EU legislation.

Interestingly, all references are omitted from the AAC report, but it does go on to make a more substantive assertion, that:
EU law contains an exception that, where necessitated by geographical constraints (such as an unloading wharf or a pass), a border inspection post at a certain distance from the point of introduction may be tolerated if approved by the EU through the applicable procedures and, in the case of rail transport, at the first station stop designated by a Member State. For example, in Rotterdam the BIP is located 40km inland from the container terminal in the harbour.
And here we have the lie direct, with a degree of creative ambiguity which is quite obviously calculated to deceive. Firstly, EU law, currently, doesn't contain an exception not at the moment. A new law, Commission Delegated Regulation (EU) 2019/1012, has recently been promulgated. But this does not take effect until later this year, on 14 December.

The point here is that a law not currently in force cannot apply to the existing situation in Rotterdam where it is claimed that "the BIP is located 40km inland from the container terminal in the harbour". But the lie is more subtle, seen last year in a report written by Peter Lilley.

As I wrote at the time, not only is this not true in principle, it is disingenuous at several levels. Rotterdam is not so much a port as a port complex, stretching from the Maas estuary at the North Sea end, with the Kloosterboer Delta Terminal, into the heart of the city, with an outpost Dordrecht on the Oude Maas. In all, it extends over 40 kms from end to end.

Putting this in context, even if the BIP was bang in the centre of the port complex, it would still be 20 km from the "border" i.e., the seaward edge of the complex. As it is, there are four separate BIP facilities registered by the EU within the Rotterdam Port area, including one at the Kloosterboer Delta Terminal, right at the entrance to the estuary.

But, as far as the AAC is concerned, no lie is so egregious that it cannot be usefully recycled, and then swallowed uncritically by the gullible. And that brings us to the creative ambiguity, the claimed exception to the "immediate vicinity" rule set out in Commission Delegated Regulation (EU) 2019/1012.

Although the AAC would have you believe that this is a wide-ranging exemption, it is remarkably limited. Basically, it applies to points of entry: with a geographical configuration that imposes major constraints on the transportation system; which are subject to recurrent floods in certain periods of the year; where maritime wharves are surrounded by cliffs; where border roads cross a high pass; where rail transport of animals and goods makes it necessary to locate the border control post at the first station stop; or where there is no suitable land in the vicinity.

Spelling out the detail makes one thing abundantly clear: nothing in the new regulations would permit the movement of BCPs away from the Irish border, much less allow "veterinary inspections in-situ on farms and food producers locations". The AAC scheme is pure moonshine.

As for using "mobile inspection vehicles", at the top of this page is a picture of a BIP (one I have used before). These are substantial buildings, with the requirements set out in Commission Implementing Regulation (EU) 2019/1014. The detail reflects the range and complexity of the functions carried out in them. And the AAC thinks they can use vehicles to do the job? Seriously?

But just in case there might be any uncertainty about what is intended, yesterday we saw Shanker Singham address the Northern Ireland Affairs Committee, where he was asked by Lady Hermon about these famous mobile inspection units. Said Singham:
You have to differentiate between veterinary checks and classical SPS checks done inland in facilities and veterinary checks which historically have had to be done at border inspection posts at the border. So the UCC and the Border Inspection Post regulation allows you to move in certain cases the infrastructure off the border, so that's the first step. The first step is to move the infrastructure off the border.
Questioned about this specific aspect, Singham reiterated that, "the BIP regulation allows you, you don't have to have a Border Inspection Post at the border for SPS checks". Lady Hermon quickly asked which inspections were going to be moved, whence Singham asserted:
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.
Needless to say, the Union Customs Code does not apply to SPS checks, so Singham is perpetuating the rookie error of eliding official controls and customs controls. The exemptions (not derogations) on BIP locations are set out in the Commission Delegated Regulation (EU) 2019/1012 and they are as previously stated.

There is, however, an exemption where a "mobile official control team" can be used, but that applies to border control posts, "which, due to the long coastline or borders of the Member State concerned, only operate at the time of performing controls on consignments of unprocessed logs and sawn and chipped wood". The BCPs are not replaced, and the checks can't be done "away from the border". What this allows is for several specialist posts dealing only with unprocessed logs and sawn and chipped wood to be staffed, under certain conditions, by a mobile team of officials.

This misrepresentation is way beyond moonshine. But, returning to my original "naming of parts", if your gullible audience doesn't know what a rifle magazine is, then the "expert" gets away with calling it a "bullet container".

So, yesterday, we had Shanker Singham spouting the most unbelievable guff at the Northern Ireland Affairs Committee. There wasn't a single MP ready to call him out, pointing out that the mythical mobile units were a complete invention and can't exist within the framework of EU law.

The reality is that Brexit creates a requirement for multiple Border Inspection Posts (BCPs). But, says Singham (quite rightly): "Obviously, we can't do that for the island of Ireland". So he invents a fantasy solution which, with a straight face, he puts to a committee of gullible MPs, to the plaudits of most of the members, some of whom are on the board of his commission.

It is no wonder we're getting nowhere with Brexit. When liars stalk the land, polluting the debate with their poisonous nostrums, and no one calls them out, we cannot progress, especially when the Guardian is more interested in Mr Johnson being "criticised for [his] male-dominated campaign team".

And it gets even worse. It is this garbage, as the Independent notes, on which Alexander Boris de Pfeffel Johnson relies.

Singham claims that the job of his AAC was "to come up with the arrangements that we think will makes sense". But the only "sense" here is that he and Johnson, liars both, deserve each other. Yet, as is reported equally uncritically by the BBC, he still gets away with saying that his "alternative arrangements protocol is intended to supersede and make the backstop unnecessary. It would be almost like a 'front stop'", he says.

Sadly, once the European Commission has finished with it, it would not be a "front stop" so much as a full stop.