UK critics of the Protocol, including unionists, fail to explore why the Protocol must contain provisions that EU rules on goods must apply to NI, and be interpreted there in the same way as in the 27 EU states.
It has been this unwillingness to try to understand the EU reasoning that has made the negotiation so difficult. The first principle of a good negotiation to understand your interlocutors genuine needs. I do not feel the Protocol critics are doing this sufficiently.
This unwillingness to try to understand the reasoning behind the Protocol testifies to the deep lack of seriousness at the top of British politics.
Expertise is disdained. Verbal dexterity and witty put downs are preferred to truth telling and serious analysis. The former are the skills that win votes in student debates in Oxford University, but they are useless when it comes to the hard slog of governing a country and negotiating with other countries
This lack of seriousness explains why Boris Johnson agreed to the Protocol, won an election on the basis that it was “getting Brexit done, and now wants to pull out of it.
There is also a complete mismatch between the negotiating styles of the UK government and of the European Commission.
The UK approach is one that emphasises drama, and performance for an external audience. The Commission’s approach is low key and legalistic and is rooted in the texts of EU treaties and laws, documents which the UK political negotiators hardly take the trouble to read (as we have seen with the Protocol)
The essence of the Single Market is that it sets up a single set of standards for goods and foods, standards which are uniformly applied and interpreted consistently across the EU. That makes trade simpler and protects consumers equally, where ever the make their purchases in the EU
NI is important, but so too are the 27 EU states and their Treaty commitments to one another.
For example, a UK proposal that exempted NI from any of the EU rules, listed in the Protocol ,would create doubt as to the wisdom of investing in an EU oriented business in NI. NI sourced goods could then no longer be relied upon as fully meeting EU standards . That would dilute the unity of the Single Market. The Commission is not going to allow this to happen.
When a Competence review, to see if the balance of responsibilities between the UK and the EU was right, was undertaken by the UK Coalition from 2012 to 2014 before the 2016 Referendum, the then NI Executive said access to the Single Market was “vital” to NI.
The UK took part in the drafting of all the EU rules listed in the Protocol which will apply in NI under it, and understood at the time that they were necessary to protect the integrity of the Single Market. Chapter 3 of the UK’s own Competence Review explained why this was needed. Why does the UK not understand in 2022 what it understood in 2012?
The answer is that the present UK government thinks the 2016 Referendum result changes everything.
That may be so for the UK, but it changes nothing or the EU and its 27 members states. The requirements for maintaining the Single Market among the 27 EU members have not changed. These rules are there to protect the EU Single Market and they will not be changed Boris Johnson or for Jeffrey Donaldson, who freely chose to leave the EU.
The suggestion, by the UK, that ECJ jurisdiction would not apply to interpreting the EU rules as applied in NI is dangerous. It could be seen as subversive of the entire Single Market. It would institutionalise double standards inside the EU Single Market, and potentially reverse 50 years of European integration.
ECJ judgements created the Single market, almost as much as did EU Treaties and legislation.
The idea that there might be two versions of EU law, a version applied in the EU on the basis of ECJ jurisprudence, and another NI version, based on UK Court interpretations, could not endure.
It would be a formula for perpetual and wasteful conflict.
The same consideration applies to the idea that EU state aid rules would not apply in NI while NI was supposed to have unfettered access for goods to the Single Market. It would create a platform for unfair competition which is the antithesis of the EU Single Market.
We should remember also that proposing changes to the Customs Code of the EU is an exclusive Commission competence, rather than one for the Member states. If it has been otherwise, there would never have been a Single Market. The UK proposals on flexibility directly attack on this exclusive competence of the Commission. I worked in the Commission for five years and I know the Commission will not give this up to some joint EU/UK Committee..
Because the EU is a voluntary Union of 27 states, it is an inherently fragile construction, bound together by rules that are freely accepted by 27 very different countries.
The big weakness of the European Commission in the present impasse is that it is not good at explaining why its rules are as they are. The Commission is good at details, but not good at communicating basic concepts and the logic of the EU position in plain language.
It is allowing the UK to make all the running publicity wise. It is time to change this.