Opinions & Ideas

Category: BREXIT Page 1 of 8

REES MOGG APPOINTMENT COULD  MAKE PROTOCOL DIFFICULTIES MORE ACUTE

 Jacob Rees Mogg has been appointed as UK  Minister for Brexit Opportunities, with a mandate from Boris Johnson  to  change 1000 regulations, now in force , which the UK adopted as an EU member.  

This mandate, if acted upon, makes a settlement of the EU/UK dispute over the Protocol  next to impossible.

The more  EU inherited  UK regulations in respect of goods, which Minister Rees Mogg changes, the more will be the frequency and intrusiveness of checks on goods entering Northern Ireland from Britain.

 This because, under the Protocol Minister Rees Mogg and his colleagues signed , Northern Ireland will continue to apply  EU regulations for goods, including food products.  

 Any new and different UK rules , sponsored by Minister Rees Mogg, will not apply in Northern Ireland .  This will mean even more checks on British goods entering Northern Ireland to ensure that the goods comply with the EU rules. 

 New and different UK rules for goods, will also mean more things to check at British ports facing continental Europe, and more traffic jams on the roads approaching these ports.

Of course, this applies only to goods. In the case of services, the UK can make whatever rules it likes without any impact on customs checks at ports.

But as far as goods are concerned, it is almost as if the Rees Mogg appointment is designed to sabotage any possibility of his colleague Liz Truss finding an agreement with Vice President Sefcovic on a lightening the Protocol. 

 If he does the job he has been given , Mr Rees Mogg’s real title should  perhaps be “Minister for Extra Trade Barriers”.  Of course this applies only to goods. 

A recent UK paper  on the “Benefits of Brexit” suggested that scrapping EU rules could bring £1 billion worth of benefits to the UK economy. This seems like a figure plucked out of the sky.  There is no detail of what rules might be changed, even though the UK has been preparing for the suppose benefits of Brexit for the past six years.

 Indeed separate and different  UK rules might actually increase costs, because of the duplication involved.

But there are strong suspicions that the “benefits of Brexit”  paper is  just for show, and that Rees Mogg will not actually be able to diverge much from EU standards at all, because UK businesses will not want  to lose markets in the EU.. 

In a way, his appointment is an expression of the confused expectations about Brexit within the Conservative Party……members want a bonfire of EU rules.   But they also want to be able to have their exports accepted in the countries of the EU as being compliant with the very  EU rules they have just scrapped!

 Businesses which trade internationally know the importance of regulations for both goods and services, and may not be so keen on unilateral UK regulatory changes that put the UK out of line with its neighbours to whom they want to export.

Whether it is product safety, or the transfer of cross-border data, domestic regulations and international agreements are a crucial element in making access to markets easier, or  making  them more difficult. Having different rules is a way of keeping imports out and making consumers pay more. 

Under Prime Minister Theresa May there was some openness in the UK government to aligning with EU rules, particularly in the area of goods, in order to facilitate trade and resolve issues around  Northern Ireland .

The arrival of Boris Johnson as Prime Minister in July 2019 ended this openness.   His view was  that UK regulatory sovereignty is crucial, or at least must be made to appear to be so. 

Boris Johnson’s present political difficulties weaken his ability to reach compromises with the EU on the Protocol.

 His party is, in fact, a coalition between those who want more spending and those who want less spending, between those who want more protectionism and those who want less, and between those who want more regulation and those who want less. 

 Some problems have already arisen. The new UKCA conformity assessment mark to replace the EU’s CE mark, means greater internal regulatory inconsistency between Northern Ireland and the rest of the UK, and hence more bureaucracy at Northern Ireland ports.

 The more Rees Mogg does  his job, the more will be the differences between Northern Ireland standards and those in the rest of the UK.

Trade Agreements may be an added complication.

 For example there are suggestions that Canada will challenge the UK’s ban on hormone treated beef, as part of the accession process for the UK to the  new Pacific Trade Agreement. 

If this were to happen, it would mean extra controls on beef products from Britain coming into either part of Ireland. It would also place beef exports from either part of Ireland to Britain  at a competitive disadvantage vis a vis hormone treated beef imported from Canada. 

 But would British consumers want to eat hormone treated beef?

Whether the UK actually diverges all that much from its existing EU standards or not, the fact that the UK is SAYING now  it  intends to diverge a lot , means that the EU has to maintain tight customs controls of British goods .

  That means insisting that the Protocol is respected to the full in Northern Ireland ports,  and continuing delays on British good going to continental Europe

 So the Protocol row may go on and on, until the UK finally settles on what EU rules it wants to change, and what EU  rules it intends to keep. 

Given how slow progress on making these decisions has been in the six years since Brexit , the Protocol  dispute could drag on for years.

 This does not  augur well for stability in Northern Ireland,  or for Anglo Irish relations.

BREXIT CRISIS LOOMS OVER PROTOCOL

Notwithstanding the positive sounds emanating from Monday’s meeting between Liz Truss and Maros Sefcovic, the talks between the European Commission and the UK government over the Protocol on Northern Ireland are probably heading to a major crisis in the next month. There has been no movement of the UK side, and immovable deadlines are approaching.


The UK agreed to the Protocol as part of their Withdrawal Treaty with the EU. The Protocol was an intrinsic part of the Treaty. The UK Parliament ratified the Treaty, including the Protocol, but now the UK government is trying to scrap it altogether, under a this pretence of “renegotiating “ it.


The fundamental problem is that the British negotiating strategy is being driven by old fashioned, populist, and simplistic notions about trade. The EU strategy, on the other hand, is driven by a legal imperative to protect the most advanced form of economic and commercial integration between sovereign nations that has ever been achieved. The clash is a clash of mind sets. The arguments of either side are based on fundamentally incompatible assumptions.


There is the added complication that the negotiations between Liz Truss and Maros Sefcovic are taking place in the midst of a political crisis in Britain, in which any compromise is liable to be used as a political weapon in a struggle to lead the Conservative Party.
Conservative Britain always pretended to see the EU as simple free trade area. But the rest of the EU members realized one could not have truly free trade, unless there were four other things

  • common rules on the quality of products
  • freedom for people and money to move from country to country,
  • common trade policies vis a vis the rest of the world, and
  • a shared set of political goals that facilitated day to day compromise.

A big segment of English opinion never accepted this latter concept of the EU. This makes it difficult for them to even to understand the necessary implications of the Protocol .


The Protocol makes Northern Ireland part of the EU Single market for goods produced in Northern Ireland. Meanwhile Britain has left the EU Single Market. Britain has no more than a bare bones trade agreement with the EU. This makes a big difference. But it is what the UK government and Parliament agreed.
Goods produced in Northern Ireland (NI) are being treated as EU goods, whereas goods produced in Britain are non EU goods.


In the case of goods made up of parts, ingredients or components coming from different countries, The parts, ingredients or components produced in Northern Ireland qualify, for rules of origin purposes, as “European”. Meanwhile parts, ingredients or components originating in Britain are of non EU origin.


This distinction can be very important in deciding whether a final product is sufficiently “European” to benefit from duty free access to the EU market. If one wants to ensure that a sufficient percentage of a final product is “European”, it makes sense to source ingredients or parts in NI rather than in another part of the UK.


Goods coming into NI will be subject to EU Customs rules and tariffs, whereas goods coming into Britain will be subject to (potentially very different) UK Customs rules and tariffs.


This gap has to be policed, if there is not to be abuse. In the Protocol the EU and the UK agreed how this gap is to be policed.
The gap will become progressively wider, if the UK seeks to exploit the freedom it won by Brexit by making new (and different) British standards to replace the old standards that it might claim had been “imposed by Brussels”.


The more the standards diverge, the more will checks be needed on goods entering the EU market through NI, to ensure that they comply with EU requirements.


Then there is the question of the European Court interpreting EU rules as they apply to NI goods circulating freely in the EU Single Market . The UK agreed to this but now is objecting to it.
For NI businesses to be free to export their products within the EU Single Market under the Protocol they have to be able to convince their competitors and customers in France and Germany that NI goods are fully compliant with EU rules. These rules are interpreted, in final analysis, by the European Court of Justice. That ensures consistency.
The rules must be interpreted in the same way for NI goods, as they are for goods produced in France or Germany. The role of the ECJ in the Protocol is the passport for NI goods into Europe, one of the biggest markets in the world.


The role of the ECJ is, of course, confined to EU rules applying to goods. It will have no general jurisdiction in NI on other matters. There the final arbiter will be the UK Supreme Court.


There is a logjam in the negotiations because the UK side keeps repeating the same talking points , pocketing EU concessions without reciprocity, and withholding cooperation with the EU authorities on access to data. It is also stalling on building installations in Belfast Port that would allow customs officials there to do their work safely and conveniently. The UK is using “grace periods” to defer indefinitely controls it agreed to. It is almost as if the UK does not want to face up to the implications of Brexit.


The UK, and some unionists, talk about using Article 16 as if this would allow the ending of checks in Belfast port. That is not legally possible. Article 16 only allows limited and temporary derogations. To use it to go beyond that would be a straightforward breach on international law.
We are facing a moment of truth.

A CRISIS OVER THE BREXIT PROTOCOL?

The British Foreign Secretary, Liz Truss is holding a two day meeting this week with the EU Commission vice President , Maros Sevcovic, in an attempt to break the deadlock on the Northern Ireland Protocol. The meeting will take place in the Foreign Secretary’s country residence at Chevening. and the EU visitors will stay there overnight.

This suggests that a really serious effort is being made to resolve matters.

The fact that the negotiations are being handled on the UK side by the Foreign Secretary, one of the most senior and longest serving  Ministers in the UK government. and an elected politician, is also a good sign. 

She has a degree of political authority independently of the Prime Minister and thus has scope to make moves that her predecessor, Lord Frost could never have made.  

On the other hand, she is a contender for the Tory party leadership, and there is no sign that she has been preparing the ground for a deal.

The expectations is the Conservative grassroots remain unrealistic and Liz Truss has stoked these expectations in an article she wrote in the “Sunday Telegraph”.

She said that

“we need to end the role of the European Court of Justice(ECJ) as the final arbiter of disputes”

between the EU and the UK on the interpretation of the Protocol.

Her language may be deliberately loose here.

Nobody is suggesting that the ECJ will arbitrate a dispute between the UK and the EU. But the EU side will have to act, in any agreements it makes with the UK, inaccordance with EU law and the ECJ has to have the final word in interpreting the meaning of the EU laws, that will apply in Northern Ireland , under the Protocol Boris Johnson and the UK Parliament signed up to .

Her article was all about what the UK needed, and she made no attempt to explain, to the Tory supporting readers of the Sunday Telegraph, that the EU is a system of rules, and these rules have to be interpreted consistently in all parts of Europe, including in regard to goods in Northern Ireland.

This failure to manage expectations could lead deep disappointments and a major crisis.

 Writing in the “Irish Times “ last week, Professor Ronan McCrea, an Irish academic based in London,  speculated that, if a compromise was not reached in the discussions between the EU and the UK on the Northern Ireland Protocol, this state might be forced to choose between imposing  customs controls on the  land border in Ireland, or ceasing to be fully part of the EU Single Market.

He did not see this arising simply from the UK invoking Article 16 of the Protocol, if that is all they do.

This is because Safeguard measures that the UK might take under Article 16 must be 

” restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation”. 

So any steps the UK might take under Article 16 would have to be narrowly focussed and temporary.  But that is not the impression being given publicly in Britain. 

Professor McCrea saw a bigger threat would arise if,rather than just invoking Article 16 , the UK just stopped implementing any controls at all, on goods entering Northern Ireland from Britain. This would be a much more extreme step, but it flows from some of the rhetoric being used in Britain and among Unionists.

This , he argued, would mean, if the land border remained open, that exports from this country, to the rest of the EU could, no longer be relied upon to be compatible with EU rules on quality, safety and rules of origin.

One possibility is that, to avoid this, customs checks on goods coming from here might have to be introduced at ports in France, Belgium and the Netherlands on all goods coming from Ireland. 

This would be a nightmare scenario for Ireland and would be tantamount to the UK attempting to force Ireland out of the EU. The EU will not allow this. So the sanctions it might take against the UK would be very severe. I think Liz Truss and Boris would want to avoid that, given the supply problems already being experienced by the UK economy. So I am hopeful a compromise will be reached. But the stakes are high!

UK ministers need to read the NI protocol they signed

The UK’s EU negotiator and its Secretary of State for Northern Ireland published a remarkable article in the “Irish Times “ last week .

 They complained of what they called the

 “inflexible requirement to treat movement of goods( from Britain) into Northern Ireland, as if they were crossing an EU external frontier, with the full panoply of checks and controls”.

It appears that they never read the Ireland/Northern Ireland Protocol which is part of the Agreement under which the UK withdrew from the EU. For this is precisely what the UK agreed to, in great detail, in the Protocol.

Annex 2 of this Protocol lists the EU laws which are to apply

 “in and to the UK in respect of Northern Ireland”.

The very first item on this very long list is Customs Code of the EU. This is a rigorous code with exacting procedures, as the UK knows well.

 Also listed are EU laws on the collection of trade statistics, product safety, electrical equipment, medical products, food safety and hygiene, GMOs and animal diseases. The list is specific. It refers to each item of EU legislation by its full title. 

The UK is fully familiar with all the legislation in the Annex, because the UK, as an EU member state at the time, took part in drafting each one of these laws. It also had a reputation as a country that applied EU laws more conscientiously than most. 

These controls have to be enforced somewhere. This can be done either at a land border or at a sea border. 

The UK Ministers , writing in the “Irish Times”, say preventing a hard land border on the island of Ireland remains essential.

 So, if the controls are not to be exercised on the land border in Ireland, where do the UK Ministers propose to exercise them?

The two Ministers make no attempt to answer this question. They offer no constructive suggestions at all, apart from using slogans like “balance” and “flexibility” in the implementation of the very precise laws listed in the Protocol.   

The Ministers do not attempt to deal with the requirements for protecting Ireland’s position as a member of the EU Single Market. They do not deal with the possibility that, if the parts or ingredients, that do not meet EU standards, can come into Northern Ireland, cross the border, and thus become incorporated in an EU supply chain originating here, our position as part of the EU Single Market is undermined. It would not be long before there would be calls from continental competitors for checks on goods originating in Ireland at continental ports and airports. All that would be needed to set that off would be a single event, perhaps to do with a scandal over food standards.

Let us not forget that the current UK government has said that they propose to diverge from EU standards in future. Indeed Boris Johnson said divergence is the “whole point” of Brexit. UK standards may be similar to ours now. That will not be the case five years from now.

At the end of the article, the two Ministers say that, if solutions are not found (although they do not offer any), 

“we will of course have to consider all our options”.

 In diplomatic terms, for British Ministers to use such words, in an Irish newspaper, is menacing . 

A large non EU state is threatening a small EU state, with whom it has a land boundary, with unspecified actions, because of the out working of an international Treaty, to which the larger state freely agreed, less than two years ago. 

Nowhere in the article by the two Ministers is there even a hint that they take responsibility for the Protocol they themselves negotiated. If a business man agreed a permanent contrast a year or so ago, then did not like part of it, and wanted to renegotiate that part, one would expect him to be somewhat apologetic and to offer alternative ways of achieving the goals of the other party. But there was no hint of either contrition, or constuctiveness, in the article of Lord Frost and Brandon Lewis….just menace.

It is clear from the article of the two Ministers that they have no intention of using the grace period as intended by the EU, to allow traders to make adjustments to their supply chains.  They intend to use the time inciting feeling against the EU and endeavouring to pressurize EU states individually, in the hope that the EU will dilute or corrode the legal foundations of EU Single Market, in the interest of domestic UK politics.

There are suggestions that the UK even wants the EU to recognise  the new goods standards the UK will make, as somehow “equivalent” to EU standards, and give them the same rights to circulate in the EU as goods from the 27 EU states, that comply to the letter with EU standards. A dangerous precedent would be set. If the EU conceded this to a country that had left the EU, existing EU members would soon look for their own local exceptions to EU standards, and the Single market would wither away.

Brexit was a British idea. Brexit means border controls. They should deal with the logical consequences of their own freely chosen policies.

POST BREXIT TRADE POLICY CONTRADICTS UK CLIMATE POLICY

Global Britain may mean more global warming. Long distance trade means more  CO2 emissions than buying and selling locally.

 The attempt to defy defy geography in UK trade policy is hard to reconcile with the Johnson government’s other global goal… which is to give a lead to the world on combating climate change, by cutting CO2 emissions,  which the UK hopes will be agreed  at the big conference it is hosting in Glasgow later this year.

One of goals of Boris Johnson’s government is to see the UK play an independent role in the world, reminiscent of its position a century ago, when the UK was seen as a global player, rather than as merely a European power.

 Brexit provides the UK with the necessary independence, both psychological and legal. Its ability of to make its own trade agreement adds an economic dimension to this quest for global relevance. The fact that the first trade agreements the UK has negotiated are with faraway Australia and New Zealand underlines the global dimension.

 But there is a snag.

 Having rejected membership of the EU Customs Union, the UK is now applying to join something called the Comprehensive and Progressive Agreement for a Trans Pacific Partnership (CPTPP). CPTPP’s members include Japan, Vietnam, Peru, Chile, Mexico as well as Australia and New Zealand…..all countries that border on the Pacific. Replacing trade with the EU with trade with these countries will mean more pollution.

 Apart from Pitcairn Island and its few hundred inhabitants, no UK territory borders the Pacific.

 It is impossible to reconcile the UK government plans to shift its trade to the  Pacific  with its plans to  combat climate change.

 Replacing trade with nearby EU countries, like Ireland and France, with trade with distant Pacific countries, like Australia, Japan, Vietnam and New Zealand , will  increase the overall UK contribution to greenhouse gas emissions, through  the  inevitable extra  CO2 emissions from  long distance shipping and refrigeration.

 The longer the shipping route, the more will be the CO2 emissions. Ships use the dirtiest of fuels. Global shipping already generates as much CO2 as 205 million cars.

 Refrigeration on long sea journeys adds to emissions.

 If it is, for example, UK trade policy to import dairy or livestock products from New Zealand , rather than  from Ireland or France , this  will add dramatically  to the  damage done by trade policy  to the world’s climate.

 The EU needs to point out this contradiction in UK policies to the participants in the Glasgow Climate change conference

WHAT DOES THE UK HOPE TO GAIN BY BREXIT?

The recent  interview of Lord David Frost with Anand Menon of the Think Tank “UK in a Changing Europe” gives some insight into what the current UK Government hope to achieve through Brexit. It is worth watching  on the think tank’s website.

In the interview, Lord Frost explains that, until Boris Johnson came to office, the EU side had felt that the UK had no alternative to a negotiated agreement and that the UK was thus in a weak negotiating position.

His role was to explain, in a speech he gave in Brussels in February 2020 with Boris Johnsons full approval, that the UK was willing to accept a “No Deal” outcome, and on that basis it did have  an alternative to a negotiated agreement with the EU.

 The UK, he said, was willing to bear the costs involved in leaving the EU Customs Union and Single market. But he admitted he did not yet know exactly what these losses and gains would be.

 For him, Brexit seems to be an act of faith.

He was pressed to give more information on the potential benefits of Brexit.

He hoped that, as a result of it, the UK might become a “magnet for investment”, and achieve higher productivity.

Pressed on how this might happen, he said the UK, while in the EU, had got used to having rules set for it by others, and did not think for itself, even in areas where the EU actually imposed no legal restraint on the UK doing things its own way . This argument may have some validity.

 In this sense, Brexit is an internal UK psychological project, designed to free up the way the UK thinks about itself , and about what it can do. If this is so, it suggests that UK political leadership is unable to change UK , without the aid of a self generated external shock, like Brexit. 

Brexit, although decided, continues radically to divide UK public opinion. A deeply divided society is not the best environment for the sort of psychological transformation the Brexiteers like Lord Frost have in mind.

Lord Frost said that, post Brexit, UK citizens would be 

“living in a country where every policy can be changed after an election”.

 This freedom is obviously important to him. But it is hardly consistent with wanting the UK to become a “magnet for investment”. In my experience in Ireland, the best way to attract investment is to have some key policies that attract investors, that do not change after every election (eg the corporate tax rate, or freedom of capital movements).  

As to concrete things that Brexit would enable the UK to do, Lord Frost offered the examples of

  • reform of its agricultural policy
  • changes on state aids to industry
  • changes in immigration policy
  • Freeports.

The direction of UK policy on agriculture is similar to that the EU is taking anyway.

 Freeports seem to divert trade from one place to another, rather than increase it.

It would appear that UK immigration policy is encouraging people from further away to come to the UK to replace immigrants from neighbouring EU countries, who are less welcome now. 

In fact it is hard to reconcile the UK government plans to combat climate change, with its post Brexit policies.

Replacing trade with nearby countries, like Ireland and France, with trade with distant countries, like Australia and New Zealand , is bound to increase the UK’s direct and indirect contribution to greenhouse gas emissions, through extra CO2 emissions from shipping and refrigeration.

Lord Frost is an able man, who presented his case in a friendly way, but I fear neither he, nor his Prime Minister, have even begun to join up their thinking on trade and climate change.

On the Ireland Protocol, Lord Frost seemed to blame the EU for an Agreement his Government had negotiated and his Parliament had approved. He even spoke about what he called EU “intervention in Northern Ireland”, as if this was not something his government had signed up to.  This sort of blame shifting is not to the credit of the UK, as a sovereign country. 

WHY BREXIT AFFECTS IRELAND

Lecture given to a webinar organised by the University of East Anglia in Norwich on Tuesday 11 May 2021 at 6.30pm;

Ireland is more affected by what happens in the UK than is any other country. 

This is due to the facts that

  •  Ireland is host to the UK’s only land border with another state
  • Geographically, Ireland’s easiest route to the Eurasian land mass is through UK territory
  • Politically, Ireland has been intertwined with the UK for most of the last millennium, including to this day under the mutual  Treaty obligations we and the UK share under the Belfast Agreement of 1998.

So it is important for citizens on my state to understand what is going on in the UK, and why it is going on.

While most people in the world were surprised by the UK decision to leave the European Union, Irish people were shocked.  

THE EU IS A HABIT OF MIND, MORE THAN IT IS A LEGAL STRUCTURE

 But before going into that, let me say a word about that the EU is, and what it is not. 

 EU is not a state, and is not about to become one.

 It is, instead, a habit of consultation and common action between states, underpinned by legal and institutional arrangements. These arrangements are evolving in response to needs as they arise. More than it is a legal structure, the EU is a habit of mind. That is what a political institution is, a habit of thinking together.

 Ireland will remain within that institution, with some influence on its evolution. 

The UK will not, which is unfortunate. I say this is unfortunate because the security of much of Ireland’s infrastructure is dependent on links through the UK and its territorial waters.

 The sea is no longer the barrier to hostile forces, that it was in 1939, in 1804, or 1745.

 Increased Global interdependence has brought increased vulnerability. 

Close and well structured relations with ones near neighbours across the sea, is important to the security of any island state, including Britain and  Ireland.

 A DECISION TAKEN WITHOUT A PLAN

Irish people were, as I said, shocked by the UK decision to leave the EU in 2016. 

This was partly because it seemed the decision was taken without any regard to the effect it might have in either part of Ireland, and on the peace of the island.  

But the shock was  all the greater, because the decision seemed to have been taken, without a clearly articulated plan, for the new relationship that the UK would have with the EU, or, for that matter, with Ireland.

 Given our own experience with referenda, this struck us as reckless.

Taking an irrevocable decision on principle, without first negotiating what it might mean in practice, is like a pilot taking off without a flight path.

 Incidentally, this is also why I have reservations about the drafting, of the provisions in the Belfast Agreement of 1998, for calling a referendum on Irish unity. It could simply put the cart before the horse.

 The UK voters agreed to “take back control” from the EU in 2016, but without an agreed project for using the control they were taking back. Even now, five years after the decision, the plan is not yet visible.

WAS ENGLAND EVER COMFORTABLE IN THE EU?

It was the more elderly section of the UK electorate that were strongest in their support for leaving the EU. This was surprising because these were electors, who were old enough to have had had a vote in 1975 referendum, when they decided the UK decided should remain in the EU. 

Perhaps the UK was never comfortable being associated with continental Europe, even in 1975. 

Churchill favoured a United States of Europe, but with Britain staying aside from it.

Churchill’s successor as Prime Minister, Harold Macmillan, wanted free trade with Europe, but initially, he wanted no part of a Customs Union and no political Union. 

He did not believe the Common Market, when it was launched in 1957 by six countries without Britain, would work. But it did work.

 Meanwhile the UK lost its Empire, its links with the Commonwealth were weakening, and the Suez debacle of 1956 had reminded it that its alliance with the US was not based on equality. 

 So, in 1961, Macmillan changed his mind, and made what he called  at the time the “grim choice” to join the Common Market, only to have the application vetoed by de Gaulle. 

 De Gaulle felt that Britain was too close the US, and was not wholehearted in its commitment to Europe.  He was not wrong on the latter point.

Eventually, another Conservative Prime Minister, Edward Heath, did succeed in persuading France to allow the UK to join the European Communities.

It is important to recall what the British people were told in the 1970’s about what joining the Common Market would mean.

 Many Brexit supporters have recently claimed that the UK only ever wanted to join a common market, without any political strings, and that they were misled by their leaders. This is simply not so.

Edward Heath, who had fought in the Second World War himself, told the House of Commons, in April 1975, that the European Communities 

“were founded for a political purpose, the political purpose was to absorb the new Germany into the structure of the European family”. 

So the political goal was not hidden, and the British people formally accepted continued EU membership on that basis, in their 1975 Referendum.

Gradually, the UK had come around to the view that it should not stand aside from the growing common endeavour of the Common Market/European Union. As the newly appointed Prime Minister, Margaret Thatcher put it in a speech in Luxembourg in October 1979;

“Britain could not turn away from a voluntary association designed to express the principles of Western Democracy……Nor (she said) could any enterprise properly lay claim the proud name of Europe, that did not include Britain….. “

She continued

“  It took the British the whole of the 1950’s to realize these simple truths. It took the Six (Six Common Market members) the whole of the 1960’s to respond”

These words of Mrs Thatcher suggest that at last, in 1979, Britain was comfortable as a member of the EU.

WHAT CHANGED BRITAIN’S ATTITUDE TO THE EU?

What happened to undo the lessons the UK had, according to Mrs Thatcher, learned in the 1950s?

On the surface, four issues led UK public opinion to turn away from the EU.  

+ the rows about the UK’s financial contribution from 1979 onwards, 

+ the ejection of the £ from the European Monetary System, 

+ immigration, through the interaction of  the free movement provisions of the EU Treaties, and the EU’s enlargement to include the poorer countries of post Communist Europe and

 + the upsurge in identity politics, in the wake of the financial crash of 2008.

I think there also were deeper reasons than these.

 The memory of the First and Second World Wars had faded. The importance of maintaining a structure of peace and interdependence in Europe  slowly diminished in the public mind in Britain. Communism was no longer a threat.

 Indeed there is some evidence for the suggestion that long periods of peace encourage peoples to indulge in separatism. 

One can perhaps see this even within the UK itself. UK solidarity was greatest during the World Wars and diminished after they were over.  All states are synthetic and imperfect creations, and  are subject to change.

THE IMPORTANCE OF SELF IMAGE

England’s self image played a part in its increasing discomfort with the EU. 

 Britain sees itself a 

“a fortress built by nature for herself”, as  “ a scepter’d isle”, surrounded by seas controlled by Britain.

The religious divisions of the sixteenth century underlined this sense of separateness.

 Roman jurisdiction over the King’s marriage was rejected.

 This religious dimension was reinforced by the fact that Britain’s main continental rivals, over three centuries up to 1900, were Catholic powers, Spain and France, and Britain was emphatically Protestant. Legally it still is.

From the 1760’s to mid 20th century, Britain had the world’s biggest Empire.

 And Let us not forget that that Empire stood with Britain in 1940, when France had been defeated, America was neutral, and Russia was still on the sidelines.

 For this valid historical reason, the Commonwealth still has an emotional appeal in Britain, out of all proportion to its present political or economic importance.

The Monarchy has also given Britain a sense of self confidence, and an emotional bond, that makes compromise with European neighbours, including with Ireland, seem a little less necessary.

These factors were as much in play in 1975, when the British people decided to stay in the Common Market, as they were in 2016, when they decided to leave it. So the different decisions remain puzzling, to outsiders like me.

UNTRAMMELLED SOVEREIGNTY……THE GOAL OF UK NEGOTIATORS

Turning to the more recent negotiation, the organising principle of Brexit, from a UK perspective, seems to be to have been the restoration of untrammelled sovereignty to the Westminster Parliament, and to it only. 

For the UK, Sovereignty apparently must reside in one place, and ONLY in one place. 

 Even the minutest issue, such as the health standards for plants, or the safety and content of food, must be decided in Westminster only, and not in common with Brussels.

 This concern with indivisible sovereignty is the only reason  the UK has declined to have a Plant and Veterinary standards agreement  with the EU, and is thus the reason we have problems with supplies to garden centres and Supermarkets in NI, through the outworking of the agreed Irish Protocol.

 Sovereignty is everything, and trumps everything.

But, in this thinking, if sovereignty cannot be delegated upwards, to an international treaty based organisation like the EU, it is  also difficult to conceive of it being delegated downwards,  internally to nations within the UK itself. 

SOVEREIGNTY AND DEVOLUTION…….UNEASY BEDFELLOWS

Gordon Brown, former Prime Minister, claimed in a Guardian article last year, that it would soon be

” impossible to hold together a UK of nations and regions in the straitjacket of a centralised state.”

 His main criticism was that the UK government was taking decisions, like setting the terms for Brexit, without ,properly and formally, taking into account the views of the devolved parliaments in Edinburgh, Cardiff and Belfast.

 Two of these had clearly stated that they wanted to stay in the EU Single Market, but the Westminster government ignored them. It was guided instead by the opinion of English MPs.

 The contradictions here are profound and enduring. 

In a speech in which she spoke of the 

“precious union” 

of the four nations, that the then PM, Theresa May, also announced that the UK would leave both Customs Union and Single Market( something to which the people of  2 of the 4 nations were opposed).

 Later she felt free to go outside the long settled Barnett formula for dividing up finance between the devolved administrations, so she could give an extra £1 billion to Northern Ireland, in return for the support of the DUP for her minority government in Westminster. 

She only showed the devolved administrations the text of her Article 50 letter, initiating UK withdrawal from the EU, on the day she sent it to Brussels.

The European Union operates according to a written rule book, the Lisbon Treaty, which is a sort of constitution, which is interpreted by a single Court system.

 In effect the UK Union has only one rule….”Westminster decides.”

 The durability of this arrangement will be tested in future.

THE BREXIT TEST FOR EUROPE

The EU will also be tested in coming years too.

 Many advocates of Brexit in the UK saw it as loosening the unity of the EU. This has not happened. In fact the fiscal integration of the EU has deepened since the UK left,

 Even though there have been policy failures, as on vaccination, the unity of the EU has not weakened. Indeed some the supposedly anti EU parties, in Italy and France, have actually modified their positions in a more favourable direction. This is not what the Daily Telegraph expected.

 But let us wait and see. 

“IN POLITICS, BEING DECEIVED IS NO EXCUSE”

Who won in the Brexit Trade negotiation?

 The fact that there is any agreement at all, after all the brinkmanship and bad blood, is a tribute to all involved.

 It is in the nature of a divorce, like Brexit, that both sides actually lose.

First let us look at the British side.

 For them, the goal was “sovereignty”. 

 While traditionally sovereignty has been seen as the unfettered power of the British Parliament to legislate, Boris Johnson interpreted it as taking back control into the hands of British Ministers, rather than Parliament as such.

 From a British point of view, the Agreement goes some way towards meeting this goal. British Ministers have ”taken back control”, at least on paper,  of many issues, at least as far as the island of Britain is concerned.   But not as far as Northern Ireland is concerned! 

This is because UK voters, in 2016, simply forgot about Northern Ireland and ignored the problems of the UK land border there with the EU. There were reassured there would be no problem, but as the Polish philosopher, Leszek Kolokowski said;

“In politics, being deceived is no excuse”

 Future EU rules, in which neither the UK, nor the people of Northern Ireland, nor their elected representatives,  will have a direct or indirect  say, will continue to apply in Northern Ireland under the Protocol the UK Parliament  agreed with the EU, in its haste to leave. 

 In sum, Boris Johnson and the UK Parliament traded more UK sovereignty over the island of Britain, for LESS UK sovereignty over Northern Ireland. 

 In future, the more British rules diverge from EU rules, the more will Northern Ireland diverge from the rest of the United Kingdom. And more divergence is the declared goal of the current UK government.

 This creates a political mine field.

 The implications for NI unionists could be quite destabilising if the UK government , in order to justify Brexit,  decides to  diverge  radically from the EU, on trade and regulatory matters. 

MORE DIVERGENCE IS THE “WHOLE POINT” OF BREXIT

In a letter to EU leaders last year, Boris Johnson said British laws would diverge from those of the EU and added

“That is the point of our exit, and our ability to enable this, is central to our future democracy”.

Divergence from the EU is central to the future of British democracy according to the Prime Minister.

Where will that leave Northern Ireland under the terms of the Protocol he signed, and which was endorsed by Parliament?

 The Joint EU/UK Committee, set up under the Withdrawal Agreement, will need to monitor the political and security consequences of this  rush to diverge.

 Title X of the Agreement requires advance notice, and consultations, of changes in regulations as between the UK and the EU. It will be important for peace and security that these consultations include representatives of all major interests in Northern Ireland.

WHAT THE UK ACHIEVED

That said, the Agreement contains significant gains for the UK side, at least as far as the island of Britain is concerned. 

 Firstly, there will be no direct application of decisions of the European Court of Justice on the island of Britain. 

Secondly, while the UK has accepted that it will not regress from present high social, environmental and quality standards, it will be free to set its own UK standards for the island of Britain. These will, as I have said, be different from those applying in Northern Ireland and in the EU. 

This right to diverge is what UK Brexiteers saw as an expression of UK’s sovereignty, and they have got it.

But, thirdly, the UK also accepts that divergence will not come for free.

 As one advocate of Brexit, Dr Liam Fox MP, put it in Westminster during the debate on the Agreement

“If we want to access the Single Market, there has to be a price to be paid.  If we want to diverge from the rules of the Single Market, there has to a price to be paid”

The Agreement establishes detailed mechanisms to negotiate the  ”price” will  have to be paid, mostly by consumers in the form of higher prices,  for divergence.  It will going on for years to come.

These mechanisms in the  Trade and Cooperation Agreement ( A Partnership Council, Joint Committees, and Arbitration Tribunals) are completely untested at this stage. A great deal will depend on the particular use the UK decides to make of its new freedoms.

ARBITRATION TRIBUNALS…..OUR JOINT FUTURE

If problems arise and these cannot be settled in the committee system, there is an agreed provision for arbitration. Three person Arbitration Tribunals which will operate on strict time limits will be set up. If the Arbitrators find that either the EU or the UK has breached the agreed principles, the other party will be allowed to impose tariffs or prohibitions, to compensate for losses it has suffered. 

Incidentally, these tariffs, if imposed, will have to be paid on goods going from Britain to NI or vice versa.

 This aspect of the Agreement is valuable from an EU point of view.

 In its absence, any disputes would have had to be referred to the disputes resolution system of the WTO.   That WTO system is both cumbersome and narrow. Parties before the WTO can stall, adopt delaying tactics, or ignore rulings. Disputes there can drag on for years, as we have seen with the US/EU dispute about subsidies to Boeing and Airbus. So reaching agreement on a customised EU/UK disputes resolution mechanism was an important achievement for Michel Barnier.

But there are potential downsides in the Agreement for the EU too.

 We will be replacing a single set of rules, interpreted by a single judicial authority, the European Court of Justice (ECJ) with individual Arbitration Tribunals, operating under tight deadlines. This could lead to inconsistent decisions in different areas of trade. If a Tribunal interprets EU law differently to the interpretation later made by the ECJ on the same subject, there could be real difficulties

The UK will be free to negotiate trade agreements of its own with non EU countries. These negotiations may create additional pressure for even more divergence between UK and EU standards. 

 The UK may come under pressure to allow the imports to the UK,  that would not meet EU standards.

 For example, the UK may come under pressure to accept chlorinated chicken, hormone treated beef, or foods that have been genetically modified. If these products are then incorporated into processed foods, which are then exported to the EU, there could be big problems. We have experience of food quality scares in the past.

 There are separate and detailed provisions for imports which could upset the playing field on which EU and British producers will compete.  This could arise if there are hidden subsidies or monopolistic practices. 

HOW THE EU MUST RESPOND TO BREXIT

In global terms, the continent of Europe has been weakened by Brexit.

Brexit will force the EU to up its game.

 As a single entity, the UK will be able to move more quickly to set new regulations for new sectors, based on the technologies of the future. The EU, with 27 members to satisfy, and budget of only 1% of GDP, may move more slowly. That must be addressed.

I hope that the Conference of the Future of Europe, meeting for the first time this week, will not be afraid to streamline EU decision making procedures, including, in necessary, by targeted Treaty Amendments.

 A Union that is unable to amend its constitution eventually gets into trouble, as the US is finding.

PEACE AND STABILITY, RATHER THAN A CHANGE IN SOVEREIGNTY, MUST BE THE FIRST PRIORITY FOR IRELAND

Although legally speaking the issues are unconnected, Brexit has led to speculation that there might soon be a poll, under the terms of the Belfast Agreement of 1998, on Irish unity.

 The 1998 Agreement says that there should be such a poll if the Secretary of State for Northern Ireland believes such a poll would result in a vote for Irish unity. It assumes there would also be poll in Ireland as well.The relevant text in the Agreement is as follows; 

“The Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.”

A majority for this purpose could be as little as 50.5% to 49.5%.

According to some of those present in the final days of the negotiation of the Agreement, the organisation and consequences of holding such a poll were not much considered at the time. But the text is there, and it has legal force.

That said, the history of Northern Ireland, since 1920, demonstrates the danger of attempting to impose, by a simple majority, a constitutional settlement, and an identity, on a minority who feel they have been overruled. If, for example, a 49.5% minority in Northern Ireland votes to stay in the UK, and resolutely rejects rule from Dublin, one could expect there would be difficulties, not least for the government in Dublin. 

 A poll in those circumstances could repeat the error of 1920, and add to divisions, rather than diminish them.

 I was a bit surprised then to see Bertie Ahern,  a former Taoiseach, call for the border polls to take place in 2028 (the 30th anniversary of the Good Friday Agreement). 

Target dates tend to be misinterpreted as promises, a sense of inevitability takes over, opinion becomes polarised, and rational discussion of the risks becomes impossible.

 Reducing a complex issue, with many nuances and gradations, to an over simplified Yes/No question is risky anyway, and deciding such a matter by referendum, irrevocably, without first negotiating the details, is not wise. It can lead to unforeseen results. This is, perhaps, a lesson of the 2016 Brexit Referendum.

 Strangely, the Belfast Agreement, does not require the UK government to consult with the Irish government before calling such a poll, even though a poll on the same subject would have to take place in the Irish Republic. 

The result of the poll would have major financial, security and cultural consequences for the Republic.

 This omission, therefore,  of a provision to consult the Irish government gives weight to the suggestion that this part of the Agreement were not examined in depth by the negotiators in 1998.

Even though all other legislative decisions inside Northern Ireland must, under the same Belfast Agreement, be agreed by a procedure of parallel consent of both nationalists and unionists, this, possibly irrevocable, existential decision on sovereignty could be made by a  simple majority, of as little as a single vote, in a referendum.

This may be the law. But it sits uneasily beside the principles set out in the Agreement itself which say the parties will

“endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangement”

It seeks something “agreed”, rather than something “decided” by a simple majority.

 Deciding the biggest question of all by a simple majority runs up against the principles in the Downing Street Declaration of 1993, agreed by Albert Reynolds and John Major.

It said that Irish unity should be achieved

“by those who favour it, persuading those who do not, peacefully and without coercion or violence”

This type of persuasion of the opposite community, is not taking place within Northern Ireland  at the moment, in either a pro Union or a pro United Ireland direction.  Thanks to Brexit, positions are more polarised now than ever. 

In the Downing Street Declaration in 1993, the Taoiseach, Albert Reynolds said on behalf of the Irish people

“Stability will not be found under any system which is refused allegiance, or rejected on grounds of identity, by a significant minority of those governed by it”.

Let us face facts. A poll on unity, carried by a narrow majority of say 51% to 49%, could not be guaranteed to deliver a system that would not be

 “at risk of being rejected, on grounds of identity, by a significant minority”

“The consent of the governed is an essential ingredient of stability” was what John Major and I agreed in the Framework Document of 1995.

Irish unity, carried by a 51/49% margin, might not obtain the requisite consent of the defeated 49%., who would still have to be governed.  That is practical politics.

 So, I say that peace and stability, tolerance and gradualism, should be our guiding principles in approaching the question of sovereignty over Northern Ireland.

The focus now should  be on making all the three strands of the Good Friday Agreement yield their full potential, rather than fixating on territorial sovereignty through a border poll. 

We must first build sustained reconciliation, and shared goals, between the two communities in Northern Ireland. 

That is a commonsense precondition for success of any of the many constitutional options that might be considered at some stage in the future.

UNDER WHAT RULES DOES THE UK UNION WORK?

IS DEVOLUTION BEING UNDERMINED?

“Can the British State handle the challenges of devolution?” is the question asked by Michael Kenny, Philip Rycroft and Jack Sheldon in a recent paper published by the Bennett  Institute of Public Policy in Cambridge University.(see below)

Gordon Brown, former Prime Minister, asked a similar question, in a Guardian article last year, claiming that it will soon be

” impossible to hold together a UK of nations and regions in the straitjacket of a centralised state.”

His main criticism is that the UK government takes decisions, like setting the terms for Brexit, without ,properly and formally, taking into account the views of the devolved parliaments in Edinburgh, Cardiff and Belfast.

All three of these clearly stated that they wanted to stay in the EU Single Market, but the Westminster government ignored them. It was guided instead by the opinion of English MPs.

 The contradictions are profound. It was in a speech in which she spoke of the 

“precious union” 

of the four nations, that the then PM, Theresa May, also announced that the UK would leave both Customs Union and Single Market( something to which 3 of the 4 nations were opposed).

 Later she went outside the  long settled  Barnett formula for dividing up finance between  the devolved administrations, so she could give an extra £1 billion to Northern Ireland, in return for the support of the DUP for her minority government. 

She only showed the devolved administrations the text of her Article 50 letter, initiating UK withdrawal from the EU, on the day she sent the letter to Brussels.

When Boris Johnson replaced Theresa May, he weakened the consultative structures she had used to avoid conflicts with the devolved governments.  He left it to Michael Gove to consult them and stayed away personally from the issue.

 Subsequently, in its (UK) Internal Market Bill, designed to replace the EU Internal market,  the Johnson government took back powers to London from the devolved administrations in areas of transport and education.

 It is believed Boris Johnson said privately that devolution has proved to be a “disaster”, which is hardly reassuring for those who want to preserve and strengthen devolution, to prevent a complete break up of the Union.

The underlying problem with the UK Union is that it is not underpinned by any written constitution or rule book, with which civil servants and Ministers in London could familiarize themselves.

 Every problem is tackled on an ad hoc basis by bilateral bargaining. This is in contrast with the EU, which has a very detailed set of rules, most recently updated in the Lisbon Treaty.

Just as most English MPs never understood the multi level system of government through which the EU worked when they were in the EU, they have not yet come to understand the multi level and variable system, under which the UK Union itself is supposed to operate. They still think of the UK as a centralised unitary state.

 For them, the unlimited “sovereignty of parliament“  over rules everything else.

 Devolved powers can simply be taken back at the will of the Westminster parliament (often after minimal debate there).

 This might work if everybody trusted everybody else. But that is no longer so. Now that power is held by different and often antagonistic parties in London, Edinburgh, Cardiff and Belfast, the casual “make it up as you go along” model of governance of the UK has run out of road.

The London civil service is not designed to cope with a union of four nations (of radically unequal size) .

Legally speaking, the problems of the UK Union are not the business of other countries, like Ireland. 

But we have problems, with which we need the active cooperation, and intellectual engagement, of the UK government, notably but not solely to do with Northern Ireland.  So we have an interest in ensuring that the internal governance of our neighbouring island is settled and stable.

A NO DEAL BREXIT ON 1 MAY?

©AP Images/European Union-EP 

The risk that we will wake up on 1 May, to find we have a “No Deal “Brexit after all, has not disappeared.

The deadline for ratification by the European Parliament of the Trade and Cooperation Agreement (TCA) with the UK was to be 28 February 2021.But the European Parliament postponed the deadline to 30 April. It did this because it felt it could not trust the UK to implement the TCA properly and as agreed and ratified. 

This distrust arose because the implementation of the Ireland Protocol of the Withdrawal Agreement had been unilaterally changed by the UK.

If any party to an international agreement takes it upon itself unilaterally to alter the agreement, the whole basis of international agreements with that party disappears.

The matters in dispute between the UK and the EU( the Protocol and vaccines) remain unresolved.

The EU is taking the UK to court about the Protocol , but the court is not likely to decide anything before the new deadline of 30 April.

In the normal course of events, the Trade and Cooperation Agreement between the UK and the EU would be discussed in the relevant Committee of the European Parliament, before coming to the Plenary session of the Parliament for ratification.

The next meeting of the Parliament’s Committee on International Trade is due to take place on 14th and 15th April, and the agenda for the meeting has been published.

It includes a discussion on the enforcement of trade agreements, the General System of Preferences, and (significantly) trade related aspects of Covid 19.

It makes no mention at all  of the TCA with the UK!  

Trade related aspects of Covid 19 will inevitably include a discussion on vaccine protectionism, a highly contentious issue between the EU and the UK that has poisoned relations and led to bitter commentary in the media.

The fact that the Committee has not even included a discussion of  the TCA with the UK, on its agenda for what may well be the only meeting it will have before the 30  April deadline is potentially very significant.

The TCA runs to 2000 pages , and its contents, if ratified,  will take precedence over EU law.

To ratify such an agreement, without proper scrutiny in the relevant committees of Parliament, could be seen as a dereliction of Parliament’s responsibility of scrutiny. We should not forget the scrutiny that was applied to the much more modest EU Trade and Cooperation Agreement with Canada. The same goes for the deal with Mecosur.

Furthermore, the TCA would, if ratified, set up a network of committees to oversee its implementation. These will meet in private and their work will diminish the ongoing oversight by the European Parliament  of a host of issues affecting all 27 EU member states.

The TCA also contains a system of disputes resolution mechanisms that will quickly be overwhelmed by work.  The TCA has  many items of unfinished business, on which the European Parliament will want to express a view. It is hard to see how any of this can be done before 30 April!

The UK government of Boris Johnson has adopted a deliberately confrontational style in its negotiations with the EU.  The more rows there are, the happier is the support base which Boris Johnson is seeking to rally to his Conservative Party. Johnson’s European strategy has always been about electoral politics, not economic performance. This has led to almost complete mutual incomprehension between the UK government and EU.

If the European Parliament ratifies the TCA, without their  first having been seen to be a satisfactory outcome to the  EU/UK negotiations about the Ireland Protocol and about the exportation of vaccines, it will be a political setback for the Parliament and a source of  immense satisfaction for Boris Johnson.

One should never underestimate the role emotion can play in politics. The entire Brexit saga is a story of repeated triumphs of emotion over reason. And the European Parliament is not immune to this ailment.

Boris Johnson could be pushing his luck a bit far this time.

THE ARTICLE 16 ROW IS LIABLE TO HAPPEN AGAIN UNLESS LESSONS ARE LEARNED

What lessons are to be learned from the unfortunate controversy around the European Commission’s brief consideration of using Article 16 of the Northern Ireland Protocol to stop exports from the EU of some Covid 19 vaccines to Britain, via Northern Ireland?

The UK Minister, Michael Gove said “it was a moment when trust was eroded and damage done” and the chairman of the  UK’s House of Commons EU committee described it as a “vindictive act”.

On the other hand, the EU has a sovereign right to impose export restrictions, and also to protect its market from imports of goods that do not comply with EU standards (whether these come into Ireland or to any other part of the EU)

Lessons must be learned, because this sort of Article 16 problem could recur over and over again for years to come, as the UK diverges more and more from the EU.

The first thing to say is that the proposed EU restrictions on exports of certain vaccines are still going ahead.

All that has changed is that Article 16 of the Protocol is not now being used to enforce these restrictions. The restrictions will presumably be enforced in, and by, the pharmaceutical manufacturing plants themselves, inside the EU rather than on the border.

Secondly, the restrictions only apply to vaccines that were subject to an Advanced Purchase Agreement with the European Commission, where the European taxpayer had put up money to help the pharmaceutical manufacturers to develop and test the vaccines. This was agreed on the basis that the EU would then get supplies of the vaccines under an agreed schedule from the manufacturer.

 This is not unreasonable in itself.

 It is open to question whether the present elaborate process of export restriction and authorisation was really necessary to ensure the EU got the supplies. A threat of civil legal action for breach of contract would seem to be a more targeted approach, than the highly bureaucratic export ban we now have.

Of course, it is theoretically possible that Northern Ireland could have been used as a backdoor to circumvent the EU restriction of exports to the rest of the UK. To avoid this, the regulation, now in force, still requires information to be provided on vaccines going to Northern Ireland.

SHOULD ARTICLE 16 HAVE BEEN USED?

 But it is quite clear that Article 16 was not the right tool to use to achieve the goal the Commission had set for itself.

 We should look at what Article 16 of the Protocol allows.

It provides for unilateral safeguard measures to be adopted by either the EU or the UK, where there are difficulties that “are liable to persist”.

Under Article 16 the safeguard measures should only be ones that are “strictly necessary to remedy the situation”.

Arguably neither condition was met in this case.

 The vaccine supply difficulties are inherently temporary.  They are not likely to persist.

Other measures could have been or be adopted, within the EU itself, to require the vaccine manufacturers to meet their obligations, without using Article 16 of the Protocol. So the use of Article 16 was not “strictly necessary.” It should be a last resort, not a first resort.

DID THE COMMMISSION MAKE ITS DECISIONS IN THE BEST WAY?

So why did then use of Article 16 come to be considered by the Commission at all?

There was a degree on panic in many countries, notably Germany and France, about the pace of supply of vaccines.

The Commission was coming under pressure.

 Even though it was the manufacturers that were failing to fulfil their contracts, it was the Commission that had negotiated those contracts. The fact that negotiating this sort of contract was something new for the Commission was not an acceptable excuse, nor was it enough to say that the delays might have been much greater, and the price to the taxpayer much higher, if each the 27 EU countries had been left to negotiate their own contracts, and outbid one another. But the Commission President Ursula Von der Leyen felt she had to show she was “doing something”.

She decided on the speedy introduction of selective export restrictions.

 In the interests of speed, she adopted a decision making procedure, that maximised the possibility of mistakes. Rather than call a meeting of the full Commission, which could have been done by secure video, she decided to push the ban through using a written procedure, leaving minimal time for scrutiny.

Adopting such a radical measure, like an export restriction by this short cut written procedure was inherently problematic.  While the EU has a sovereign right to restrict exports outside its borders, it is an inherently serious step, and should never again be attempted in this way.

Article 17 (8) of the Treaty makes clear that the Commission, as a body, is responsible for its acts, and the Commission’s own rules of Procedure state clearly that “ the Commission shall act collectively”.

 The last minute use of the written procedure to make an important international decision minimised the possibility of genuinely collective decision making by Commissioners. That is why it should not happen again. It weakens the authority of Commission, and thus of the EU as a whole.

THE NORTHERN IRELAND PROTOCOL IS A FRAGILE COMPROMISE

 The other lesson to take from what happened is that it exposed the inherently fragile nature of compromise that is the Northern Ireland Protocol.

 The Protocol requires the UK to implement and enforce EU law in respect of goods standards within part of the UK, and to prevent goods entering that part of the UK, if they do not comply with these standards. That is no small thing on principle.

 It may not be so difficult to implement it now, when the UK has only just left the EU, and UK and EU goods standards are almost identical. But, gradually, as the UK begins to adopt different standards for goods to those applicable in the EU, the risks of future controversies will increase.

Every time either the UK or the EU adopts a standard for goods that is different from the one the other is applying, there will be an additional barrier or restriction between Britain and Northern Ireland. Because the issues are highly technical, the flare up could be sudden and unexpected, with the risk of wholly unintended consequences, as the latest controversy shows.

One should add that there is also the possibility of disputes on the interpretation of the Trade and Cooperation Agreement (TCA) between the UK and the EU.

Under Article 9.4 of the TCA, either side may adopt “rebalancing measures”, where there is a significant divergence from the Level Playing Field provisions of the TCA, if they feel they have been put at a disadvantage by the divergence.

To the extent, if any, that these “rebalancing  measures” affect Northern Ireland, there will be an additional issue to be solved.

So one must hope that it never comes to this, and that the UK and the EU work in harmony in future, because the more disharmony there is, the greater will be the political problems for both parts of Ireland.

This will require a lot of tedious work by diplomats and officials in Brussels, London, Dublin and Belfast to operate an early warning system to avoid conflicts like the recent one. This is a permanent, but inevitable, extra burden of Brexit.

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