Richard North, 23/07/2019  

For some reason, I'd marked down the date for the publication of "Snake-Oil" Singham's final report and protocols from his Alternative Arrangements Commission (AAC) as the 22 July. In fact, it was published on 18 July, an event easily missed given the sparse media coverage.

In the meantime, the interim report, which was published on 24 June, has been out for consultation. Rather predictably, this has meant the AAC listening to the business response and ignoring it completely, thus reproducing most of its original errors in the final report, with not the slightest attempt made to correct them.

Exactly the same final recommendations are made – eight in number – starting with the claim that "working alternative arrangements" should be fully up and running within three years, bolstered by the assertion that the arrangements are available by harnessing existing procedures and technologies and customs best practice.

Before going any further, one should note that of the limited media coverage, one report which stands out is an article in the Evening Standard written by Nicky Morgan MP, where she declares: "We've found an alternative to the backstop we all can agree on".

Morgan is co-chair of the AAC and tells us that the first ambition of the final report "was to kill off the idea that alternative arrangements are an unproven unicorn". The second, she says, "was to create a genuine route out of the jam, following the failure of government to start this work earlier itself".

Needless to say, this MP believes the report "fulfils both of those ambitions", not least because it is "based on the input of 23 technical experts", who include the former head of the UK Border Force, Tony Smith, with "ideas from Fujitsu and Vodafone, among others".

This overt appeal to authority typifies so much of what is wrong with the Brexit discourse, where Morgan is impressed by the collective work of "23 technical experts", despite their report being riddled with errors, false assumptions and statements which are quite plainly wrong. The MP clearly has done nothing to check for herself the veracity of the content and is simply beguiled by the prestige of her so-called experts.

In this, we can cut to the chase with an important example that we have rehearsed before, represented by the sixth recommendation which asserts that, "Sanitary and Phyto-Sanitary (SPS) checks should be carried out by mobile units away from the border using the existing EU Union Customs Code or a common area for SPS measures".

It really does say something of all these "23 technical experts" that they are all prepared to put their names to an extraordinarily basic error, in lumping SPS checks with the Union Custom Code (UCC).

Anyone with any serious acquaintance with the EU's application of SPS checks, through its system of Official Controls, will know that these are framed and implemented outside the UCC, and do not depend in any way on the code. In fact, for relevant products, customs control cannot start until SPS clearance has been given, fees have been paid and the appropriate certificates have been issued.

However, it is not even as if you have to be directly familiar with Official Controls. The UCC itself makes the distinction between customs controls and the separate "prohibitions and restrictions justified on grounds of … the protection of the health and life of humans, animals or plants". Anyone claiming expertise in EU customs procedures should know that the UCC does not deal with SPS checks, not least of the clues being that sanitary, etc., checks are not mentioned anywhere in the code and, in 160 pages, there are only five references to animals.

As far as it goes, therefore, the AAC report is about as amateur as you can get. Its authors demonstrate in one of their key recommendations – one which they acknowledge presents one of the sternest challenges to resolving the border issue – a complete lack of understanding as to how the system works.

Interestingly, it is not as if the AAC had not been warned about this. During the consultation period. Manufacturing NI directly challenged the competence of the report authors, it pointing out that "SPS is not customs". Given the impact SPS will have on creating a Border, it said, "it is perhaps advisable that the AAC Technical Panel would include a greater level of technical understanding in this area to guide its work in the next stage and before publishing its final report".

Needless to say, the Technical Panel ignored the advice and perpetuated their error, carrying it over unchanged from the interim to the final report. As regards the responses to the interim report, the AAC acknowledge the issues raised and claimed to "have addressed them to the best of our ability in the report". If this is their "best", then the AAC need to be disbanded and forgotten.

Of course, no more does this apply to their recommendation that SPS checks "should be carried out by mobile units away from the border", which relies on claimed "geographic flexibilities", which they the AAC asserts are "allowed in the Union Customs Code and BIP Regulation". These, they claim, permit the border authorities, "to move any facilities away from the border and to use mobile units to conduct checks where possible".

It is another mark of the utter amateurism of the AAC that, in addition to miscasting the UCC (which makes no reference to SPS checks, much less affording any "geographic flexibilities"), the "23 technical experts" allow the reference to this "BIP Regulation" to stand. As I pointed out earlier, there is no single BIP Regulation as such.

But even if there was, the law cited, Commission Decision 2009/821/EC isn't it. This Decision makes no reference whatsoever to the criteria for siting what are currently known as Border Inspection Posts (BIPs). For the law currently in force, one must go to Council Directive 97/78 which requires, apart from certain very limited exceptions, BIPs be located in the "immediate vicinity of the point of entry" into the territory of the Member State.

That "23 technical experts" were unable to detect that the reference cited was inappropriate is, I find, more than a little worrying. What makes it more so is that the AAC is talking about the future application of controls, to which effect it is beyond understanding as to why they did not insist on the reference being cited to the new law which takes effect from 14 December 2019.

This is Regulation (EU) 2017/625 which repeats the requirement that the newly designated Border Control Posts (BCPs) should be located "in the immediate vicinity of the point of entry into the Union". And supplementing this law is Commission Delegated Regulation (EU) 2019/1012 which does allow limited "geographic flexibilities" arising from certain geographical constraints. But, as the recital sets out:
Geographical constraints should be those that result from the natural characteristics and landscape of the point of entry, and the distance from the point of entry should not exceed what is strictly necessary to overcome the difficulties caused by the geographical constraints. Furthermore, that distance should not be such as to pose a risk to human, animal and plant health, animal welfare and the environment. Specific geographical constraints should include those that may cause major transportation constraints like, for example, high passes with roads unsuitable for the movement of animals and goods or causing significant delays in their movement.
Not with even the wildest of imagining can the law be taken as permitting the use of mobile control teams, where the only reference to their application is for visiting teams to deal with "unprocessed logs and sawn and chipped wood" in multiple BCPs. For the rest, Article 47 of Regulation (EU) 2017/625 requires official controls to be carried out on the relevant products "at the border control post of first arrival into the Union".

If the correct references had been cited in the AAC reports (both interim and final), it would have been far easier to have confirmed that the official sources do not support the claims made for them.

In the context, it is difficult to avoid the conclusion that the omissions are deliberate, to conceal the fact that there is no legislative support for the idea of mobile inspections – or indeed any SPS inspections away from the border. And if that is the case, the reports have been written with an intent to deceive.

Yet, this is only one aspect – and there are others equally suspect. For instance, the claims on "trusted trader" schemes are not in the least sustainable, which basically tears a gaping hole in the AAC report. There is nothing there of any value.

Given, though, that the AAC has the support of Alexander Boris de Pfeffel Johnson, no doubt a copy of its final report will be waiting for him when (if) he moves into Downing Street, and may form the basis of his approach to renegotiating the Withdrawal Agreement with the European Commission.

One can only say that, as birds of a feather, Singham and Johnson probably deserve each other. The tragedy is that we deserve neither.

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