Opinions & Ideas

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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.

CAREFUL THOUGHT NEEDED ON BORDER POLLS

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.

Those pressing for an early border poll on Irish unity, which would have to take place in both parts of Ireland, should reflect on this. Such a poll could repeat the error of 1920 and add to divisions, rather than diminish them.

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

 Setting target dates, without having first done all the groundwork and collected all the data, can lead to unintended consequences.

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

This is what happened with the 2016 UK Referendum on Brexit.

 Reducing a complex issue, with many nuances and gradations, to an over simplified Yes/No question is hazardous in itself.

Setting target dates for a referendum, before any details have been worked out, is even more reckless.

As  the Brexit experience in 2016 has shown, it can also lead to the oppression of minority view points, lasting division, and to unforeseen consequences. .

For these reasons, I was also surprised to see Sinn Fein spending large sums in advertisements in the US, calling for early referenda on Irish unity, without reference to the lessons we have all learned from the Brexit referendum.

A SIMPLE MAJORITY POLL MAY BE LEGAL, BUT IS IT WISE AT THIS STAGE?

The Good Friday Agreement (GFA) does indeed provide for such a poll to be called, on the basis of a political judgement by the UK government that a majority in Northern Ireland would vote for Irish unity.

 But it does not require the UK government to consult with the Irish government, even though a poll on the same subject would have to take place in Ireland too, probably on the same day, and the effects of the polls would be felt across the whole island!

 This omission suggests to me that the provisions for border polls in the GFA were not thought through by the negotiators at the time.

Even though all other legislative decisions in Northern Ireland must, under the GFA, be agreed by a procedure of parallel consent of both nationalists and unionists, this, seminal and possibly irrevocable, decision to change  sovereign status is to be taken for Northern Ireland, by a simple majority of  just one vote in a referendum. There is no room left for negotiation on that in GFA.

As Seamus Mallon recognised, this is a recipe for trouble.

 The notion of deciding to enforce Irish unity on the basis of a 51%/49% vote sits uncomfortably beside the principles in the Downing Street Declaration of 1993, agreed by Albert Reynolds and John Major.

That Declaration is the foundation on which the GFA, and the entire peace process, was built by the two governments.

The wise words of the Downing Street Declaration should influence both

  • whether , and when, a border should take place, and
  • how voters in both parts of Ireland should vote, if such a poll is eventually called.

The Downing Street Declaration says that Irish unity should be achieved

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

I do not think a poll in favour of unity, carried by a small margin, and before a majority of the unionist community have been persuaded of the merits of Irish unity, could truly be said to meet that criterion agreed between the governments.

 It might be legally valid, but not politically wise.

There is little evidence that this type of persuasion is taking place within Northern Ireland between the two communities.  In some senses they are more polarised than ever, and are talking past one another rather than with one another.

For example, the Sinn Fein advertisements advancing arguments for unity should have been in the Belfast Telegraph or the Newsletter rather than in the New York Times!

It is the unionists, not Americans, who need to be persuaded.

I do not see much evidence that those who say they want an early border poll, are putting forward concrete ideas to persuade unionists to cease to be British unionist, and instead   embrace Irish unity.

 What have nationalists said to them so far, that would show them how their British heritage and ethos would be respected in a united Ireland?

THE GOAL MUST BE STABILITY

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”.

This was a humane and realistic statement.

I do not think a poll on unity, carried by a narrow majority of say 51% to 49%, could be guaranteed to deliver a system that would not be

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

 If it were passed on that basis, there would not be much stability afterwards.

UNIONIST ASPIRATIONS WOULD STILL HAVE TO BE RESPECTED AFTER ANY POLL

It is also important to recognise that the GFA itself says that, regardless of the constitutional status of Northern Ireland, there must be

“full respect for , and just and equal treatment for, the identity, ethos, and aspirations of both communities”

Those who favour a border poll have an obligation to spell out exactly how the British identity, and monarchist ethos, of the unionist population might given the required

“equal treatment and respect”,

 across the whole island in the wake of Irish unity.

 This will not be easy. Some the changes required might go against public opinion here.

 The recent furore about commemorating the dead of the RIC, 100 years after they were killed, is a foretaste of the sort of resistance that might be encountered. Symbols can be very divisive.

There could also be implications for levels of domestic taxation here, as the UK subsidy to public services in Northern Ireland at present, comes to 20% of GDP there.

It is also important to stress that a border poll in favour of unity in both jurisdictions might not necessarily settle the constitutional issue finally, especially if the margin was narrow.

Paragraph (v) of the GFA will oblige the government of a united Ireland to continue to respect the “aspirations” of the unionist community, in what was Northern Ireland.  It is quite likely that, in certain areas, large local majorities would continue to aspire to rejoin the UK. North Armagh, East Belfast, Antrim and many other places come to mind.

 Even if such a continuing existence of such an aspiration did not pose a security risk, it is an aspiration that the authorities would, in any event, be obliged to respect under paragraph (v) Good Friday Agreement.

 On the face of it, this is not a recipe for stability.

IS THERE A BETTER WAY?

I believe the focus now should instead 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. Personally, I would like to see Irish unity, but we must first build sustained reconciliation, and shared goals, between the two communities in Northern Ireland. That is a commonsense precondition for success.

The voters of the South of Ireland, who would also have to vote in a poll on Irish unity, would need to ask themselves, before they vote, if the criteria for Irish unity, set out on their behalf by Albert Reynolds in the Downing Street Declaration of 1993, have been met, or are likely to be met as a result of the poll.

Voters ought not just ask themselves what they would LIKE to happen, but what would be LIKELY to happen, if Irish unity was carried by a narrow 51/49 vote and there was a large unhappy minority who felt they were being over ruled.

That will be a heavy responsibility.

Voters would also have to ask themselves if they are ready to take on the financial responsibilities that would flow from their decision on unity.

Dublin would have to take over the net subvention to support the Northern Ireland budget that currently is met by London. It comes to a large figure, which would be larger still, if salaries and welfare rates in Northern Ireland had to be brought up to levels south of the border.

 There are also issues of the national debt and pensions.

 The net costs, although substantial, need not be a obstacle to unity, so long as people know about them in advance, and can make an informed decision.

Let us think this thing through, and avoid precipitate commitments to dates for referendums, before every angle has been figured out.

EACCNY Pulse: Transatlantic Business Insights

Listen to this final “Brexit Musing” episode with John Bruton, the former Irish Prime Minister (Taoiseach) and former EU Ambassador to the United States who will share his wisdom on what Brexit means and his thoughts moving forward with regard to not only the UK and EU, but also the U.S.

THE TRADE AND COOPERATION AGREEMENT

UK GAINED A LITTLE EXTRA SOVEREIGNTY OF THE ISLAND OF BRITAIN, BY GIVING UP SOME UK SOVEREIGNTY IN NORTHERN IRELAND

The EU/UK trade deal maintains Ireland’s agricultural export market in Britain. A “No Deal” would have destroyed it. The imposition of tariffs would have imposed huge costs on consumers and disruption to business.

That said, the fact that the Agreement had to be rushed through at the last minute left little time for debate which side lost the least in the negotiation.  For 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”. In sum, Boris Johnson gained more UK sovereignty over the island of Britain, but did so by sacrificing a considerable measure of UK sovereignty over Northern Ireland.

Traditionally sovereignty in Britain was seen as the unfettered power of the British Parliament to legislate.  Brexiteers have interpreted it as taking back control into the hands of British Ministers, rather than into the hands of Parliament as such.

On the other hand, EU rules, in which neither the UK, nor the people of Northern Ireland, will have  a direct say, will continue to be made for, and apply in, Northern Ireland. This creates a democracy deficit, even if the subject matter will be highly technical.

After much effort and controversy, the UK has won the right to diverge from EU rules for the island of Britain. To show that the effort was worthwhile, it will be tempted to adopt different rules on trade and regulatory matters just for the sake of it.

THE MORE BRITAIN DIVERGES FROM EU, THE MORE WILL IT DIVERGE FROM NORTHERN IRELAND

But the more British rules diverge from EU rules, the more will Northern Ireland diverge from the rest of the United Kingdom.

 This creates a political mine field and a strategic dilemma.

The implications for NI unionists could be quite destabilising. A sense of losing control over their future, and of not being represented when decisions are being made, could encourage irrational politics. This will require serious reflection in Brussels, London and especially Dublin before there is any new divergence between the UK and the EU.

The Joint EU/UK Committee, already set up under the Withdrawal Agreement, will need to monitor the political and security consequences. Title X of the Agreement requires advance notice, and consultations, on any changes in regulations as between the UK and the EU. It will be important for peace and security of these islands  that these consultations include representatives of all major interests in Northern Ireland.

 THE GAINS FOR THE UK SIDE, AT A PRICE

On the other hand, the Agreement contains significant gains for the UK side from a “sovereignty” perspective, 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 and environmental standards, it will be free to set for itself the detail of those standards. These may be different from those in the EU and thus in Northern Ireland.  This right to diverge is what UK Brexiteers saw as an expression of UK’s sovereignty. There will be strong temptations to use this power if only to show that Brexit was worth the effort.

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

 It has had to accept that services exports from the UK have lost automatic access to the EU market, a large and incalculable sacrifice. It has also lost the European Arrest Warrant and access to eU data bases.

 As one advocate of Brexit, Dr Liam Fox MP, put it in Westminster last week

“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 settle what ”price” will  have to be paid for any new  divergence .

Already, the UK is contemplating allowing genetically edited crops. If these are not permitted in the EU, there could be trade frictions and competitive losses for EU farmers.

HOW WILL DISPUTES BE SETTLED?

These new mechanisms , a Partnership Council, Joint Committees, and Arbitration Tribunals, are completely untested at this stage.

A great deal will depend on how much use the UK will make of its new freedoms. The more EU and British policies diverge, the greater will be the strain on the Agreement.

 In the last 5 years of debate about Brexit, UK politicians have actually advanced very few ideas of how they might use the new freedom conferred by Brexit.

So it is impossible to assess, at this stage, whether or not they might do things that would push the EU to seek redress through the mechanisms of the Agreement, or contribute to instability in Northern Ireland.

 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. 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.

BETTER THAN NO DEAL

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

 Without it, any disputes would have had to be referred to the WTO.  The WTO system is both cumbersome and narrow. Parties can stall, adopt delaying tactics, or  ignore WTO rulings.

 Disputes in the WTO can drag on for years, as we have seen with the US/EU dispute about subsidies to Boeing and Airbus.

 That said, we will now  be replacing a single set of rules, interpreted by 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, there could be real difficulties. Some of the problems that have arisen in EU relations with Switzerland could be replicated in EU relations with the UK, but with added complications in respect of Northern Ireland.

The UK will also 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, than the UK authorities themselves might have chosen.

 It may come under pressure to allow the imports to the UK that would not meet EU standards, for example chlorinated chicken, hormone treated beef, or genetically modified food . If these products are then incorporated into exports to the EU, the EU will have to ban them.

  UK or EU policy decisions could also skew the level playing field on which EU and British producers must compete.

In Title XI of Part One, and in Part Six of the Agreement, there are provisions for resolving disputes .

 If the dispute is about unfair subsidies, firms can go directly to the courts, citing the text of Title XI.

 If the dispute is about something else, the remedy  will be under Part Six  and  will be indirect, requiring either the EU or UK side to take the matter up in one of the many Committees set up under the Agreement. There could eventually be recourse to an Arbitration Tribunal.

In global terms, the continent of Europe as a whole has been weakened by Brexit.   The day to day effect remains to be seen.

WHAT THE BREXIT TRADE DEAL MEANS

The Trade and Cooperation Agreement between the EU and the UK is an exercise in damage limitation. The UK will face numerous obstacles because of its decision to leave the EU, including leaving the Customs Union and Single Market.

 But it was in nobody’s interest to add to these obstacles. That was the spirit in which the EU approached the negotiation.

The Agreement may run to 1256 pages, but it boils down to some fairly simple and sensible ideas.

 While no longer a member of the EU, the UK still wants to do business with the EU, and the EU members want to do business with it. 

So, for the future, there needs to be a system for ensuring that there are no surprises, or unfair trading , that would disrupt mutually beneficial business. That is essentially what the Agreement is all about.

 While the UK was a member of the EU, that goal was achieved by having a common set of business rules, made democratically and together, and interpreted in a consistent way by the European Court of Justice (ECJ). These rules could be enforced in national courts. In other words the goal of predictable and fair business conditions between the UK and its fellow EU members was achieved directly by common action. 

Under the new Agreement, the same goal will be pursued, but indirectly.

 Common rules, made and interpreted in common, will be replaced, as far as trade between the EU and the UK is concerned, by understandings set out in the Agreement, which will be interpreted by arbitrators appointed under the Agreement.

 These understandings will have legal force, but will generally only be enforceable under the procedures set out in the Agreement, rather than directly in national courts.

While the EU and the UK will each be free to determine their own policies on the environment, social and working conditions, and subsidy controls, Article 9.4 of the Agreement allows for “rebalancing” measures to be taken by the other side if it feels its own businesses are being put at a disadvantage. This is supposed to restore the level in the level playing field. 

The Agreement contains principles, now to be enshrined in international law through the Agreement, that are shared by the EU and the UK. These cover environmental, social and subsidy issues. Arbitration Tribunals to be set up under the Agreement will interpret these agreed principles in specific cases. They will have a legal, but also a political, task.

Most of the text of the Agreement is taken up with procedures for resolving disputes. 

Matters, currently resolved in national courts under EU law, will have to be resolved at inter state level between the UK and the EU, rather than in the national courts. This is inherently more cumbersome.

Sometimes the issue will be settled by political agreement in one of the myriad of committees set up under the Agreement. 

ARBITRATION…. THE CORE IDEA

If the issue cannot be settled in this way, it will go the arbitration. 

So, instead of the interpretation being done by Judges of the ECJ, they will be done by an Arbitration Tribunal set up under the Agreement.

An Arbitration Tribunal will consist of three people. There will be lists of qualified arbitrators from which the three may be chosen, one by the UK and one by the EU and the Chair of the Tribunal will be someone who is not from EU or the UK. 

 I think this idea that the chair must come from outside either the EU or UK may prove difficult. It will not  always be easy  to find suitable chairs who are not either British or EU citizens, especially as the work will have to be done at short notice and under tight time limits.

To qualify for appointment, an arbitrator will have to have “demonstrated expertise in law and international trade” .  They will all have to be people “whose independence is beyond doubt”. They will serve in their individual capacities, and not take instructions from anyone. They will have to be people who would qualify to be judges in their home countries.

I suspect there will be a lot of intense haggling over the composition of particular Arbitration Tribunals.  The nationality of the arbitrators and their past records will be scrutinised by the governments most affected by the issues in dispute. 

There are detailed provisions in the Agreement to prevent stalling by either the EU, or the UK, in appointing Arbitrators. Once established, the Tribunals will have to deliver their ruling within 130 days . Within 30 days after that, the affected party will have to say how they will comply with the ruling.

This entire structure of dispute resolution will be presided over by a Partnership Council to be chaired jointly, by a UK Minister and an EU Commissioner. It will be assisted by over 20 specialised committees and a number of Working Groups, all of which are listed in Title III of the Agreement.

EVEN MORE MEETINGS THAN BEFORE!

 I expect that there will, in the future, be even more EU related meetings for UK officials than in the past.  But the dynamic will be different.

 Instead of being able to build alliances on particular topics with other EU member states, the UK will in future find itself alone in the room with the European Commission.

 The Commission side will have instructions, negotiated in advance with the 27 member states, so there will be a high degree of rigidity in the process.

As the EU member state most affected by relations between the UK and the EU, this will be a particular challenge for Ireland. Irish officials in Brussels and will have to stay on top of all that is going on in the various EU/UK committees. Cultivating an understanding with the Commission officials serving on these committees will be a priority.

No longer in the EU, the UK will, notwithstanding the provisions of the Agreement, encounter significant extra bureaucracy and uncertainty in doing business with the EU. 

PARTING COMPANY GRADUALLY

This will lead to a gradual divergence between the UK and all its European neighbours, including Ireland. That, in turn, will have cultural and political effects. 

The UK, and the EU states including Ireland will, so to speak, be mixing in different company .They will increasingly be seeing the world from diverging angles of vision. Issues that were previously depoliticised will become more political.

 Eventually, this may affect the way the UK sees its physical and military security. NATO is already under strain, and Brexit creates a new fault line within NATO.

 While Ireland is not in NATO, we live in a part of the world which has sheltered under the NATO umbrella, and we are deeply interconnected with NATO’s biggest member, the US.  

Brexit may be over and done with, but the forces which led to it…identity politics and suspicion of foreigners….have not gone away.

WE NEED A FULL STRENGTH TEAM ON THE PITCH AS BREXIT REACHES THE ENDGAME

It is increasingly likely that, unless things change, on 1 January 2021,  we will have a no deal Brexit. The only agreement between the EU and the UK would then be the already ratified Withdrawal Agreement.

 There are only 50 working days left in which to make a broader agreement. The consequences of  a failure to do so  for Ireland will be as profound, and even as  long lasting, that those of Covid 19.

A failure to reach an EU/UK Agreement would mean a deep rift between the UK and Ireland.

 It would mean heightened tensions within Northern Ireland, disruptions to century’s old business relations, and a succession of high profile and prolonged court cases between the EU and the UK dragging on for years.

 Issues, on which agreement could easily have been settled in amicable give and take negotiations, will be used as hostages or for leverage on other issues. The economic and political damage would be incalculable.

We must do everything we can to avoid this.

Changing the EU Trade Commissioner in such circumstances would be dangerous.  Trying to change horses in mid stream is always difficult. But attempting to do so at the height of a flood, in high winds, would  be even more so.

The EU would lose an exceptionally competent Trade Commissioner when he was never more needed. An Irishman would no longer hold the Trade portfolio. The independence of the European commission, a vital ingredient in the EU’s success would have been compromised…a huge loss for all smaller EU states.

According to Michel Barnier, the EU/UK talks , which ended last week, seemed at times to be going “backwards rather than forwards”.

The impasse has been reached for three reasons.

THE MEANING OF SOVEREIGNTY

Firstly, the two sides have set themselves incompatible objectives.

The EU side wants a “wide ranging economic partnership” between the UK and the EU with ”a level playing field for open and fair competition”. The UK also agreed to this objective in the joint political declaration  made with the EU at the time of the Withdrawal Agreement.

Since it agreed to this, the UK has had a General Election, and it has changed its mind. Now it is insisting, in the uncompromising words of it chief negotiator, on

 “sovereign control over our laws, our borders, and our waters”.

This formula fails to take account of the fact that any Agreement the UK might make with the EU (or with anyone else) on standards for goods, services or food stuffs necessarily involves a diminution of sovereign control.

Even being in the World Trade Organisation (WTO) involves accepting its rulings which are a diminution of “sovereign control”. This is why Donald Trump does not like the WTO and is trying to undermine it.

The Withdrawal Agreement from the EU (WA), which the UK has already ratified,  also involves a diminution of sovereign control by Westminster over the laws that will apply in Northern Ireland (NI) and thus within the UK.

 The WA obliges the UK to apply EU laws on tariffs and standards to goods entering NI from Britain, ie. going from one part of the UK to another.

This obligation is one of the reasons given by a group of UK parliamentarians, including Ian Duncan Smith, David Trimble, Bill Cash, Owen Patterson and Sammy Wilson, for wanting the UK to withdraw from the Withdrawal Agreement, even though most of them voted for it last year!

Sovereignty is a metaphysical concept, not a practical policy.

Attempting to apply it literally would make structured, and predictable, international cooperation between states impossible. That is not understood by many in the UK Conservative Party.

THE METHOD OF NEGOTIATION

The second difficulty is one of negotiating method. The legal and political timetables do not gel.

The UK wants to discuss the legal texts of a possible Free Trade Agreement first, and leave the controversial issues, like level playing field competition and fisheries, over until the endgame in October.

The EU side wants serious engagement to start on these controversial issues straight away .

Any resolution of these controversial issues will require complex legal drafting, which cannot be left to the last minute. After all, these legal texts will have to be approved by The EU and UK Parliaments before the end of this year.

There can be no ambiguities or late night sloppy drafting.

The problem is that the UK negotiator cannot yet get instructions, on the compromises he might make , from Boris Johnson. Boris Johnson is preoccupied instead with Covid 19, and with keeping the likes of Ian Duncan Smith and Co. onside.  He is a last minute type of guy. 

TRADE RELATIONS WITH OTHER BLOCS

The Third difficulty is  that of making provision for with the Trade Agreements the UK wants to make in future with other countries like the US, Japan and New Zealand. Freedom to make such deals was presented to UK voters as one of the benefits of Brexit.

The underlying problem here is that the UK government has yet to make up its mind on whether it will continue with the EU’s strict precautionary policy on food safety, or adopt the  more permissive approach favoured by the US.

Similar policy choices will have to be made by the UK on chemicals, energy efficiency displays, and geographical indicators.

The more the UK diverges from existing EU standards on these issues, the more intrusive will have to be the controls on goods coming into  Northern Ireland from Britain, and the more acute will be the distress in Unionist circles in NI.

Issues that are uncontroversial in themselves will assume vast symbolic significance, and threaten the peace of our island.

The UK is likely be forced to make side deals with the US on issues like hormone treated beef, GMOs  and chlorinated chicken. The US questions the scientific basis for the existing EU restrictions, and has won a WTO case on beef on that basis.  It would probably win on chlorinated chicken too.

 If the UK conceded to the US on hormones and chlorination, this would create control problems at the border between the UK and the EU, wherever that border is in Ireland.

Either UK officials would enforce EU rules on hormones and chlorination on entry of beef or chicken to this island, or there would be a huge international court case.

All this shows that, in the absence of some sort of Partnership Agreement between the EU and the UK, relations could spiral out of control.

Ireland , and the EU, needs its best team on the pitch to ensure that this  does not happen!

A FRAUGHT NEGOTIATION BETWEEN THE EU AND THE UK IS LOOMING

 #banksy

There are increasing grounds for concern that the UK is backing away from the legal and political commitments it made last October in its Withdrawal Agreement with the EU. The Withdrawal Agreement was made before the UK General Election, when Boris Johnson led a minority government. Now he has an overall majority, and the prospect of four more years in office. He has more weight to throw around, at least in the short term. Some of the governments on the EU side are not in such a strong position.

 There is a suspicion that he may now be backing away from legally and politically binding commitments he gave to the EU last October in order to appear to “get Brexit done” before his General Election.

For example, the newly appointed Northern Ireland Secretary has stated that there “will be no border down the Irish Sea”.  Boris Johnson has made similar comments.

 

This could be interpreted as meaning that the UK was acting in bad faith when it agreed last October to the Withdrawal Agreement and to its legally binding protocol on Ireland.

In the Protocol, the UK committed itself to what amount to border controls between Britain and Northern Ireland.

While the word “border” is not used in the Protocol, the UK accepted in Article 5, that  EU customs duties would be collected on goods coming into Northern Ireland from Britain which if those goods were “at risk of subsequently being moved” to the rest of Ireland and thus into the EU.

It was also envisaged that goods would also have to check for the purposes of collecting the appropriate amount of VAT, and to verifying their origin. EU officials were to have a right to be present when this checking was being done, so as to assure themselves that the UK officials were correctly interpreting the EU laws that would apply in Northern Ireland.

The protocol contains detailed provisions for determining how UK goods, that were at risk of entering the EU through Ireland, might be identified and controlled, and how the customs duties on them might be collected. This was not to be done at the land border in Ireland, so it had to be done before the goods entered Northern Ireland, effectively on either side of the Irish Sea.

It is difficult to see how the new Northern Secretary’s comment the there would be no border in the Irish Sea can be compatible with the legally binding protocol agreed to by the UK, unless one interprets that the word “border”  as only applying to a border on land.

The UK Government also seems to backing away from the commitments, on ensuring fair competition, it made in the Political Declaration which it agreed with the EU as the framework for the Withdrawal Agreement.

This Political Declaration, while not legally binding in the same way as the Withdrawal Treaty itself, is part of the Withdrawal process under Article 50 of the EU Treaties, and it is referred to in the Withdrawal Treaty.

For either the EU or the UK to back away from what they had agreed in the Political Declaration would amount to bad faith, and could poison future relations.

One can accept that, once the UK leaves the EU, the EU should accept the autonomy of the UK’s decision making processes, and vice versa.

 It a legal sense, there should be a relationship of equals between the EU and the UK.

But if there is to be trade between the EU and UK, it is only common sense that there  be  basic compatibility of standards. Indeed most modern trade agreements are more about standards than they are about mere tariffs and quotas.

The Political Declaration, agreed by the UK last October, makes repeated references to the need for  provisions for a level playing field and fair competition in any future agreement between the UK and the EU.

 Article 17 says the Partnership between the UK and the EU should ensure

a level playing field for open and fair competition

 between UK and EU firms.

 Article 77 commits the UK and the EU to

uphold the common high standards applicable to the EU and the UK at the end of the transition period in areas of state aid, competition, social and employment standards, environment, climate change and relevant tax matters.

The common standards applying at the end of the transition period at the end of this year are the existing EU standards. The UK agreed there would be no rolling back of these  EU standards.

 But Boris Johnson said, in a speech in Greenwich earlier this month, that

There is no need for a free trade agreement to involve accepting EU rules on competition policy, subsidies, social protection, the environment or anything else anymore than the EU is obliged to accept UK rules.

Prime Minister Johnson’s EU negotiator, David Frost went further this week when he said

to think that we might accept EU supervise of so called level playing field issues simply fails to understand the point of what we are doing

adding that the UK must be free to “set laws that suit us” and that

 this is the  point of the whole project.

On the face of it, these statements appear to be a flat contradiction of what Mr. Johnson and his government agreed to last October in the Political Declaration.

The level playing field provisions in the Political Declaration clearly envisage mutual supervision of the EU by the UK, and vice versa, to ensure that neither side does anything that interferes with open and fair competition or rolls back standards.

There may be some room for benign interpretation.

Prime Minister Johnson could say he is referring to rules to be made in future by either the EU or the UK, and not to the rules in force now.

 But the Political Declaration is only says that the “common high standards “, in force at the end of the transition period, should not be reduced. It does not prevent new rules being made by either side, so long as they do not reduce these standards. So it is difficult to know what Mr. Johnson and Mr. Frost are talking about.

 The agreed Declaration does not require the UK or the EU to use exactly the same words to maintain those standards, just that standards should not be reduced.

The statement by David Frost, rejecting any EU supervision of what the UK does, could undermine the Political Declaration in a fundamental way.

The UK, if it wants good relations with all its immediate neighbours, should dial back the rhetoric. Trust needs to be rebuilt.

The EU should also be careful not to over estimate its own negotiating leverage, and not to look for certainty on everything.

CAN BREXIT TAKE PLACE WITHOUT EITHER MAJOR TRADE DISRUPTION, OR SERIOUS DILUTION OF THE EU LEGAL ORDER?

Brexit is a British decision.

It means that Britain is seeking to withdraw from a contract it made with the other EU members, on the basis of which those countries opened their markets to British business, in a way it was not opened to other countries. That was the deal.

In business, if one unilaterally withdraws from a contract, one does not normally expect to continue to enjoy all the benefits of the contract, afterwards.  One expects to have to make good some of the losses incurred by the other party.

But that is not how British public opinion sees Brexit. It IS how it is seen by the 27 partners of the UK in the EU.

This difference in perspective is at the root of the difficulties in the present negotiation.

The EU has developed, and maintained, an integrated Single Market for business because it has a single unified system for making, interpreting and enforcing a single set of rules.

The Single Market is deepening all the time and new fields of business are being made the subject of common rules, thereby opening new markets. This will not stop when the UK leaves.

Common rules are what keeps the EU together.

They derive from the EU Treaties, which is like a written constitution. It is difficult to amend. The UK, in contrast, has no written constitution, and there is no similar constraint on the UK Parliament.

So UK often looks at problems purely politically, while the EU has first to look at them legally. This causes misunderstandings. UK Ministers sometimes think that a political understanding with France and Germany will be enough to overcome its problems with the Commission, but that is not the way the EU works. France and Germany, and the Commission, are all subject to a common set of rules. This rule based system protects smaller countries and has been the secret of the EU’s success.

The recent Chequers decision by the UK Cabinet says the UK will keep to the  common EU rules for goods, but goes on to say that the

“UK Parliament would still have a lock on incorporating these rules in the UK legal order by not passing the relevant legislation”.

This is giving with one hand, and taking away with the other.

So, even if the UK and EU standards were the same at the outset, they could diverge substantially, depending on the vagaries of British politics. Ultimately the UK Parliament can do what it likes.

The UK will not be part of the EU legal order. This builds uncertainty into the proposed arrangement, and is bad for business.

This let out clause means that border controls might not be there at the outset, but might have to be reintroduced.

This is a critical issue for Ireland, where the reintroduction of border controls on the 300 mile boundary would be both provocative and impractical.

That is why the EU wants the Northern Ireland issue agreed before the UK leaves the EU.

The UK wants to take back control, but EU needs to have control too.  This point is not always understood in London.

The EU is 27 countries, and all their Parliaments will have accepted any eventual trade deal with the UK. This makes the sort of” flexibility”, the UK says it would like, difficult to obtain. Getting unanimous agreement of all EU Parliaments to a future EU trade deal with the UK will not be easy.

That was illustrated by the difficulties in ratifying recent Agreements with Ukraine and Canada, when extraneous domestic issues were used in Belgium and the Netherlands to delay ratification.

If the Commission wants a deal with the UK that will pass in all 27 Parliaments, it will have to exercise great care.

Patience will be required. Sound bites will not always be a help.

But before we even get down to detail on trade, there will have to be a Withdrawal Agreement.

80% of the text of the Withdrawal Agreement is already agreed, but 20% remains to be settled. Among the issues that are not settled is the

“backstop” to prevent a hard border in Ireland.

Here the EU has put forward the proposal that

“Northern Ireland remains in a common regulatory area for goods and customs with the rest of the EU”.

It has said it is ready to improve the text of this proposal, if the UK has suggestions to make. But such suggestions need to be within the parameters of what the EU has proposed.

This is difficult for the UK for various technical and political reasons, not least because England and Wales, but not Northern Ireland, voted in the Referendum to leave the EU’s common regulatory area.

Opinion on this in the UK is changing, but only very slowly.

The implications of a hard Brexit are only now being contemplated by most of the people who voted Leave in 2016.

In 2016, these people saw Brexit as an emotional assertion of national identity, rather than as a concrete proposal that would change their lives and livelihoods irrevocably.

I believe UK public opinion needs more time to consider if Brexit is really the best way to express their national identity, and more time to fix some of the inequities in British society that prompted people to vote Leave in 2016.

That why I have argued, in an earlier column in this paper, that the period of negotiation under Article 50 should be extended.

This could happen if the UK asked for it, but asking for it would require both immense courage on the part of the UK government, and a constructive response from the UK opposition.

It is hard to see evidence of either yet, but they could emerge if there is a crisis.

 

 

 

THE DAWNING REALITY OF BREXIT

At a conference last week, I heard Owen Patterson, Conservative MP and former Secretary of State for Northern Ireland, say that the UK should renege on the “backstop” agreement on the Irish border, given by Teresa May to EU negotiators.

He admitted that Irish public opinion ”hates Brexit”, yet seemed to expect the Irish government to make Brexit easy for the UK! That is naive.

At the same event, Lord Alderdice, former Leader of the Alliance Party of Northern Ireland, said the Good Friday Agreement came about because the protagonists put the emphasis on developing new relationships between the communities in Northern Ireland, rather than on detailed rules and economic questions.

It seems to me that the absence of this sort of broad thinking, in the UK about the EU,  led to Brexit. UK public opinion saw joining the EU as a business transaction, rather than as a long term relationship building exercise.

When David Cameron decided to have a referendum on leaving the EU, it did not occur to him to call a meeting of the British / Irish Intergovernmental Conference, set up under the Good Friday agreement, to explore how this might affect relations between the UK and Ireland, between North and South and, consequently, within Northern Ireland.

This was myopic. It demonstrated a lack of seriousness, which persists.

 A similar myopia affected the UK relationship with the EU as a whole. UK decision makers saw the EU in purely functional terms, rather than as a means of developing new relationships.

The UK still hopes to negotiate access for itself to the UK Customs Union and Single Market, without joining either of them, and without allowing the freedom of movement of people that all EU members grant to each other, or accepting that the rules will be interpreted by the European Court of Justice(ECJ).

This is unrealistic. Any dilution of freedom of movement would require an amendment of the EU Treaties which would require the unanimous agreement of all 27 EU states. This will not be forthcoming. The ECJ is essential to ensure uniform interpretation of market rules, especially in services.

UK politicians and opinion formers forget that the EU is a rules based organisation, with a common system for making, interpreting and enforcing the agreed rules. In this, the EU is different from other international organisations.

The Treaties founding the EU are the equivalent of a written constitution, which is hard to amend. As the UK has no written constitution of its own, it finds this difficult to accept. These differences in perspective between the EU and UK will continue to cause trouble, unless UK politicians educate their electorate about the nature of the EU.

At this stage in the negotiations, the UK is seeking to interpret Article 49 of the Joint Report, the so called “backstop”, to cover the whole UK, and not just Ireland.

The wording of the Article is as follows;

  1. The United Kingdom remains committed “to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

Reading the paragraph as a whole, it is clear that it is about Ireland, not about the two islands.

In any event, there is no possibility of the other EU countries allowing the whole UK to enjoy the benefits of full access to EU markets simply by aligning its rules, but without allowing free movement of people and accepting the jurisdiction of the European Court.

The UK government is committed to having a frictionless border in Ireland and is considering two possible customs arrangements with the EU to achieve this.

One is called a “Customs Partnership”, which would see the UK collecting the EU tariffs on goods entering the UK, but destined for the EU, and then passing the money on to Brussels. It is hard to see the EU sub contracting its revenue collection to an external power over which it had no control. The Palestinian experience of subcontracting its revenue collection to Israel has not been a happy one.

The other customs option, called “Maximum Facilitation”, entails doing the customs controls, currently done at the border, remotely using technology. This technology is untried and there would be data protection and privacy concerns. It would still entail the preparation of customs declarations for all consignments of goods. This bureaucracy will add between £17 billion and £ 20 billion the business costs, or £32 per declaration, according to the UK Revenue authorities. This will make trade unprofitable in many cases.

The fact that, even at this stage, the UK has not made up its mind between these options, and has not yet made a detailed proposal is disquieting.

The EU will not be bounced into agreeing a half baked proposal, presented just before the Summit,  which attempts to evade the consequences of the UK’s own decision to quit the Single Market and Customs Union.

Those decisions were taken by the Prime Minister, not by Parliament, and should be reversed.

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