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Category: BREXIT

THE UK’s ATTEMPT TO BACK OUT OF THE PROTOCOL IT AGREED

uk flag on creased paper

The UK government is unilaterally signalling its intent to ditch  the provisions of the Northern Ireland Protocol that are designed to protect the integrity of the EU Single Market. The integrity of the Single Market rests on their being a single set of rules, uniformly enforced and consistently applied, across the 27 EU States.  

Under the Protocol, goods produced in NI would enjoy full access to the Single Market without any checks at the EU border in Ireland or anywhere else. The Protocol also affirms that NI retains full access to the UK market. This is a win/win situation for .NI business.

The new UK legislation announced this week would instead create a control free zone in Ireland, which would radically weaken Irelands   position as a member of the EU. By doing away with the controls at the ports in NI , envisaged in in the Protocol , it would create a situation whereby good and foods, not meeting EU standards , could be brought into the EU market via Ireland.

We should not forget that the Withdrawal Agreement, of which the Protocol was a central part, was a key element in the winning Conservative Party General Election Manifesto of 2019.

Now the joint author of the Protocol, Boris Johnson , wants eviscerate it by means of unilateral UK legislation.

A unilateral breach of a Treaty by domestic legislation  on an internationally sensitive matter Is clearly a breach of international law.  

International commerce, in which the UK was once a major champion, rests on scrupulous respect for treaties and contracts.

“My word  is my bond” was once a watchword in British international dealings. No more, it seems.

The UK are now  claiming that an international Treaty can be breached on the basis of


“ necessity”.

This is a hard claim to justify in this case . 52 of the 90 members of Northern Ireland Assembly have indicated support for the Protocol, so there is no democratic “necessity“ to scrap the Protocol.

It is true that the DUP has said it will not sit in the NI Executive unless it’s seven demands for changes are met. These demands are vaguely phrased and symbolic  and do not provide a solid basis for legal resolution. It is not clear when or if the DUP would take up their seats in the NI Executive. So one  minority political party , in  small part of the UK , cannot be allowed to determine what is a “necessity” for a large and diverse state like the UK .

The fact that the UK government, Parliament, and electorate , all endorsed the Protocol as recently as 2019, with their eyes wide open, makes it very hard to plead “necessity” as a ground for undoing their own work.

An objective court would decide that they could and should have anticipated what would happen in their own jurisdiction.

The situation we are in today is a sign that debate within the ruling Tory party is taking place within a bubble , within which the needs of others outside the bubble are not heard.

Following the debate on the Protocol in Tory supporting press in Britain is like watching the reaction of the Republican base to the hearings about the invasion of the Capitol.  They hear what they want to hear , and nothing else.

One Brexiteer recently described the NI Protocol as “ a punishment the EU inflicted on the UK for Brexit”. This is despite the fact that in 2019, Boris Johnson, who negotiated the Protocol himself, claimed that ,in the Protocol , he had swiftly negotiated  what he called a “great new deal”!

He, unlike his predecessor, had got Brexit done, he boasted.

The  same Brexiteer writer said the Protocol was “an attempted power grab “ by the EU over the NI economy “on behalf of its allies in Dublin”.  The writer ignores the fact , under rules written while the UK was still an EU member, the Single Market of the EU has to have border controls, and these controls have to be more or less the same at all EU Borders.

Any precedent the EU might cede to the UK will be demanded by other non EU states with land borders with the EU.

The UK demands to be trusted when they say that nothing that fails to meet EU standards will cross the border into the EU .

They seem to have forgotten the long tradition of smuggling on and around the NI border , some of which which helped finance paramilitary activity in the past,  activity which costs thousand of IRish (and British) lives , and  could do so again.

Trust has to be earned, it cannot be commanded. If the EU cannot trust the UK government to keep its word, it will be even harder for it trust the private sector    “trusted traders” , the same government appoints to protect the EU from the smuggling of sub standard goods and foods across the border into the Republic.

What will happen now?

The EU has made clear the terms of the Agreed Protocol will not be changed. It has also made clear that without the Protocol there could have been no Withdrawal Agreement, and without that ,  there could have been no Trade and Cooperation Agreement(TCA)

Without the TCA, the Common External Tariff of the EU would have to be applied to British goods coming into Ireland and every other EU state. This would be deeply destructive , but it is the logical outcome , when one tries to unravel complex inter related  international agreements unilaterally. The whole thing comes apart.

As an EU member, Ireland would then have to apply the Common External Tariff on its own land and sea borders, a task of daunting proportions politically and practically. The effect on stability in NI  , and the sense of isolation of Northern nationalists , would be intense. The disruption of the food industry in The whole of Ireland would be disastrous.

One hopes that it will not come to that. But pretending that this could never happen is not wise.

The best approach for the EU will be to gradually turn up the heat on the UK so as to give them time to learn that actions have consequences , and the price could be very high. The European Commission has much experience in trade disputes and know how and where to target it’s actions. Meanwhile the political climate in the UK could change. The UK opposition parties need to assert themselves for the sake of the reputation of their country.

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.

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