John Bruton

Opinions & Ideas

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

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

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

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

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

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

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

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

 This is not unreasonable in itself.

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

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

SHOULD ARTICLE 16 HAVE BEEN USED?

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

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

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

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

Arguably neither condition was met in this case.

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

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

DID THE COMMMISSION MAKE ITS DECISIONS IN THE BEST WAY?

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

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

The Commission was coming under pressure.

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

She decided on the speedy introduction of selective export restrictions.

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

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

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

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

THE NORTHERN IRELAND PROTOCOL IS A FRAGILE COMPROMISE

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

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

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

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

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

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

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

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

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

THE EU AND THE NEW BIDEN ADMINISTRATION

The newly sworn-in US President Joe Biden has pledged to and I quote repair our alliances and engage with the world once again, so what will EU-US relations look like under a Biden presidency. The EU will certainly be looking to nurture its friendship with their Washington Post Brexit, closer to home, diplomatic relations have been somewhat strained over recent hours after an indication from the UK, although perhaps we’re hearing that that’s been reversed now to deny the EU Ambassador in London full diplomatic status of that. I think Boris Johnson is set just in the last few minutes that that will not be the case that there will be full diplomatic status given to the EU ambassador to the United Kingdom. For more on all this. Let’s talk to former Taoiseach  and EU ambassador to the United States John Bruton a very good afternoon to John  Bruton. Thanks for taking our call that news just coming to hand from my I think Boris Johnson in the last few minutes in relation to the question of the status of the the UK the EU Ambassador and UK. I thought it’s important that …

Radio1

AN ULSTER LOYALIST TELLS HIS STORY

Billy Hutchinson is the leader of the small Progressive Unionist Party (PUP) and represents it on Belfast City Council. He was, for a time, a member of the Northern Ireland Assembly.  He has recently written an autobiography entitled “My Life in Loyalism”, published by Merrion Press.

Billy Hutchinson  played an important part, while in prison in the 1980’s and later on, in encouraging the Loyalist paramilitaries towards political accommodation, instead of violence. 

 Brexit creates a new, and potentially difficult, relationship between  Ulster Loyalism and the rest of Ireland.  So understanding Loyalism is more important than ever. This book is timely.

 Hutchinson contributed to the peace process.  As the leader of the UVF prisoners in Long Kesh, through   his contacts with Pat Thompson, his IRA counterpart,   he helped get  Catholic and Protestant clergy involved in exploring political ways forward.

 The UVF had been founded in 1965, and was a violent response to the  IRA threat in the late 1960’s. It  was one of a proliferation of Loyalist paramilitary groups. It was a rival of the Ulster Defence Association (UDA). The UVF was the more disciplined than the UDA and operated through a cell structure, whereas the UDA tended to hold  public parades, and provide an umbrella under which several  Loyalist groups could shelter.

 The PUP, formed in 1975, became the vehicle the UVF used to move into politics and away from violence .

Billy Hutchinson had been born in 1955. He was a native of the Shankill Road and intensely proud of his locality. His father was a NI Labour supporter, with numerous Catholic friends, but his mother was a more traditional unionist.

 Billy was first drawn onto political activity through soccer.

 He was a supporter of Linfield FC. To get to Linfield’s ground at Windsor Park, Shankill supporters of  the club   had to cross the Falls Road  and walk past the nationalist Unity Flats. This fortnightly procession of Linfield supporters, before and after home games, became an occasion for mutual provocations between the two communities. 

This became especially acute when the sectarian temperature rose in the late 1960’s.

Hutchinson, then a tall teenager, older looking than his years, took a leading role in managing these confrontations.  He saw himself as defending his locality. He also saw the Civil Rights movement as a front for the IRA, and the IRA as attempting to force unionists into a united Ireland.

As he admits, the crude view of the UVF was that, if they killed enough Catholics, the Catholic community would pressurize the IRA to stop. 

This sort of thinking also had echoes in more “respectable “  unionism. Former Home Affairs Minister, Bill Craig, told a Vanguard rally in 1972, to 

“build up the dossiers on the men and women who are a menace to this country, because if the politicians fail, it may be our job to liquidate the enemy”. 

Of course, the IRA was equally brutal and indiscriminate. For example, Protestant families were being forced to abandon their homes in the New Barnsley estate when Catholics were forced out in other parts of the city.

Hutchinson and his friends felt that the RUC and the British Army were not protecting the Loyalist community from IRA intimidation. 

 Still a teenager, he  became an armed bodyguard for the UVF leader Gusty Spence. He also undertook offensive operations, and gave weapons training, while also holding down a day job.

 This book gives an insight into the life, and the infighting, within Loyalist paramilitarism.

 Many people were shot on the basis of suspicions, often unfounded.

 Hutchinson is a teetotaller, but much of the social life of Loyalism took place in pubs and clubhouses. 

The reader is introduced to many unusual characters. One was a Catholic, Jimmy McKenna, whose brother Arthur had been killed by the IRA. Jimmy was determined to get revenge. So he offered his services to the UVF. After some hesitation they accepted him.  He proved very useful because of his knowledge of republican areas. McKenna was eventually found to be working for the security forces.

 Although there was much indiscriminate violence, there was also some political thinking taking place among Loyalists as early as the 1970’s.

 For example, in January 1974, the UVF gave cautious support of a proposal by Desmond Boal, a former Unionist and DUP MP, for a federal Ireland , with autonomy for Northern Ireland . Boal had worked on the idea with Sean McBride, a former Irish Minister for External Affairs.

  At the time, Hutchinson did not dismiss it, but asked a reasonable question. How could concessions to republicans be considered, while the IRA was still in existence, and people were being killed?

THE AMORALITY OF ARMED STRUGGLE

 Then, at only 19 years of age, in late 1974, the law caught up with Billy Hutchinson. He was convicted of the murder of two Catholics, Michael Loughran and Edward Morgan. 

As he puts it;

“ Even though the evidence was pointing toward my involvement in the shooting, I tried to maintain an air of defiance,”

and  disingenuously added 

 “Loughran and Morgan had been identified as active republicans. How accurate the information was, I don’t know”. 

This amoral detachment about the ending of two young lives is chilling. 

 But this sort of amorality is intrinsic to all “armed struggle”. 

 If one does not want that form of psychological and moral deformation to occur, one should not start armed struggles at all, especially if other potential remedies had  not been exhausted.  One should never retrospectively justify or glorify such killings.  That applies equally to the events of 1916, 1919, and 1970. It applies as much to Kilmichael , as it does  to Greysteel  or  Narrow Water .

Billy Hutchinson spent a long period in jail in Long Kesh for his crime, from 1975 until 1990. 

PRISON LIFE

He gives an interesting account of prison life. 

Gusty Spence was the commander of the UVF prisoners and military discipline was maintained among them. A similar regime applied among the IRA prisoners. 

Hutchinson maintained a high level of fitness while in gaol, running 15 miles a day inside the perimeter of his compound.

 He had left school at 14 years of age but, while in prison , he passed his O levels and A levels, and got a degree in town planning,  a useful qualification for someone who is now a member of Belfast City Council!

After his release in 1990, he was involved with Gusty Spence and others, in the peace process which  led to the announcement, in October 1994,  by the Combined Loyalist Military Command (CLMC) , of a ceasefire. This acknowledged the hurt suffered by victims  of Loyalist violence, something the IRA has yet  to do fully. 

THE DEMOCRATIC ROOTS OF LOYALISM

One of the principles set out by the CLMC in this announcement was that 

  “there must be no dilution of the democratic procedure through which the rights of self determination of the people of Northern Ireland are guaranteed”.

 This vital issue of democratic procedure will take on a new relevance after Brexit. 

 Under the  Ireland Protocol of the Withdrawal Treaty, many  of the laws to be applied  the Northern Ireland will emanate from the EU, but without  a democratic procedure involving  elected representatives  of  the people of Northern Ireland . That will call out for a remedy.

In his treatment of the peace process, Billy Hutchinson gives much praise to the late  Irish American businessman, Bill Flynn, for his support for Loyalists on their journey. 

On the other hand, he is dismissive of Ian Paisley, quoting his late father as saying that Paisley “would fight to the last drop of everyone else’s blood”. 

Billy is self consciously a socialist in his political opinions, although this seems to signify as much a badge of identity as it does a precise political programme. 

He may not have won a large number of votes in recent elections, but Hutchinson represents a strand of Unionism that is open to change. 

The aftermath of Brexit will increase the importance of  understanding  the thinking of  people like him.  

While he acknowledges the help of Dr Mulvenna in preparing this autobiography, the text is very much his own, and will be of interest to future historians. So it is unfortunate that the book contains no index.

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.

THE POWERFUL AND THE DAMNED

Over Christmas , I read the book with the above arresting title. It is by Lionel Barber, editor of the Financial Times for the past 15 years, who has just retired.

 It is a gallop through the last decade and a half  of economic and political history in the form of a diary.

Barber did actually not keep a  daily diary but  he did make notes on important events and meetings at the time  and  these  provide the  content  of the books.  Where his opinion has changed since, he includes a note in a different script, beside the original.

 The book is published by Penguin.

He gets to the heart of the economic crisis of 2008 quite early in the book.

He blames it on competition between banks, who used new and obscure forms of credit to increase their  revenues unsustainably, because if they failed to do so, the private equity firms, who wanted revenue growth for their clients, would desert them.

I am unsure that this structural problem in capitalism has since been solved, and we are now living through another rapid expansion of credit on artificially favourable terms. Let’s see what happens…..

As editor, Lionel Barber inherited a Blairite newspaper.

 The FT had backed Labour in the 1997,2001 and 2005 General Elections. He switched to support the Tories in the   2010 General election.

Under Lionel Barber, The FT even supported David Cameron in the fateful General Election of 2015 .

As Barber put it at the time;

“We are holding our noses over Cameron’s Europe policy and his planned referendum (on Brexit). On balance , the case for continuity  rests on the economic record of the coalition government”.

Given the FT’s strong support for EU membership, the FT got that call spectacularly wrong in supporting David Cameron in 2015.

 Ed Miliband, as the alternative Prime Minister, would not have led the UK to exit from the EU. Jeremy Corbyn would never have led the Labour Party.

Barber is right when he says that no British government had ever made a serious political argument for EU membership, but if you vote for politicians, like Cameron, who have a superficial understanding of the EU,  that should not be a surprise.

Under Lionel Barber’s editorship, the FT enjoyed commercial success, and adapted well to the digital media world.

 It hosted some spectacularly good columnists. Martin Wolf and Philip Stephens spring to mind but there are many others.

Looking forward, Lionel Barber sees unregulated competition between the US and China as the number one threat to the world.  I agree. The risk of military conflict between them remains real.

 He also sees risks to democratic representative governance, if democratic states are perceived to fail in managing problems like Covid.

There are lots of anecdotes, and indiscreet word pictures of global figures in this book. But the author remains the star in his own show!

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.

Latest development in Brexit Talks

VALERY GISCARD D’ESTAING

Valery Giscard D’Estaing, who died last Wednesday, can truly be said to be the architect of the constitutional arrangements under which the EU works to this day.

He was President of the Convention of the Future of Europe, a very large and diverse body, which produced a draft EU Constitution of immense detail . 95% of the content of the present  EU Treaties are drawn from this draft Constitution.

 It was thanks  to his personal leadership and natural authority that consensus, on inherently contentious matters, was achieved.

 I observed his  political skills at work , as one of the nine member Praesidium of the Convention which agreed the drafts he presented.

SAVING THE STATE….A HISTORY OF FINE GAEL

“Saving the State, Fine Gael from Collins to Varadkar”, by Stephen Collins and Ciara Meehan,  is a good example of a fruitful cooperation between a distinguished academic historian, and an insightful political journalist. 

Ciara Meehan is a reader in history in the University of Hertfordshire. 

 Stephen Collins is a long time political columnist in the “Irish Times”.

 Both have written numerous books separately, but their combined work on this occasion combines readability and rigorous judgement.  It deserves a wide readership.

Although I have spent my lifetime intimately involved with the ups and down of Fine Gael, I learned much that was new to me in this book.

 I had not known, for example, that in forming his government in 1973, Liam Cosgrave offered the Ministry of Finance to Brendan Corish, the Labour Leader, if Brendan Corish would agree to take it himself.

 Corish declined and opted instead for Health and Social Welfare, so Richie Ryan of Fine Gael got the unenviable job of navigating the oil crisis and implementing some very unpopular capital taxes. 

Fine Gael was formed as a political party in 1933.

It was of a merger of the old Cumann  na nGaedhael led by WT Cosgrave, The Centre Party led by Frank McDermott and James Dillon,  and the Blueshirts led by Eoin O Duffy. 

It was agreed between the three merging groups that O Duffy, although not a TD, would be the overall leader. This proved to be a mistake and it is a mystery to me that it was not foreseen at the time.

In making this choice, the new party displayed a lack of confidence in itself and what it had achieved and a desire to associate itself with ephemeral  contemporary political fashions, as  represented by O Duffy. 

In his favour, O Duffy had been prominent in the War of Independence and in the formation of the Garda Siochana. He had had executive responsibility. He had set up a movement and  had shown he could organize political rallies.

 He was seen, according to the authors    

” as a Michael Collins type, someone who could excite the party in the way that Cosgrave could not”. 

 If that was the reason, it was an odd decision, for a party which was, and is, deeply constitutionalist in its convictions and support base.  WT Cosgrave, the state builder, ought to be the iconic figure for Fine Gael, and ought to be its model in choosing a leader, then , now, or in the future. 

The title of this book, “Saving the State” summarizes very well for me  the core value that underlies Fine Gael. 

It is that value that has led it to enter government with its traditional rival, Fianna Fail, a decision that reflects credit on both parties.

The book is full of interesting detail, and brings us right up to the formation of the present government.

It is an insightful and readable account……well worth buying for Christmas, if you like modern Irish history.

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