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14 October 2021updated 15 Oct 2021 4:49pm

The UK’s position on the Northern Ireland protocol is absurd and reckless

The threats made by Boris Johnson’s government against the EU do the UK’s international standing nothing but harm.

By David Gauke

Here we go again. Negotiations between the EU and the UK on how Northern Ireland is treated post-Brexit are going badly. Lord David Frost is accusing the EU of overreach, and of being unconstructive and insensitive. He is demanding that the agreement that governs how Northern Ireland is treated be fundamentally rewritten and is threatening unilateral action if it is not.  

This has happened before. Boris Johnson repeatedly assured the DUP that he would never agree to a border in the Irish Sea but did precisely that in October 2019 when he agreed the Withdrawal Agreement and the Northern Ireland protocol. He fought and won a general election campaign on the basis of his “oven-ready deal”, even while denying the consequences of that deal.

Some months later, the UK sought to change the terms of the Northern Ireland protocol, even threatening to breach international law by unilaterally disapplying its terms in the Internal Market Bill. Once again, in the event, the UK government dropped its objections and signed up to a deal that kept the checks in place for goods travelling between Great Britain and Northern Ireland (while still denying their existence). 

The problem for the government was that, however much it misrepresented the terms of our departure, it had agreed to border checks. In reality, if there was going to be divergence from the EU there were always going to have to be border checks somewhere (whether between Great Britain and Northern Ireland, or Northern Ireland and the Republic of Ireland, or the Republic and the rest of the EU). Once border checks became a visible fact, the UK accused the EU of being inflexible in its approach and demanded concessions.  Some concessions have, indeed, been offered by the EU but they do not meet Frost’s conditions.

The UK’s position is absurd and reckless.

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It is absurd because of the nature of the government’s objections. Frost has objected to the limited role that the European Court of Justice (ECJ) has in the governance of the protocol even though that role was included in the governance proposals put forward by the very same David Frost in the 2019 negotiations over the protocol. And if he thought that the ongoing role of the ECJ was so oppressive and unacceptable, it is curious that he boasted in December 2020 that the UK-EU trade deal meant that “the jurisdiction of the European Court of Justice ends”.

It is hardly surprising that EU member states view attempts to reopen the role of the ECJ as both confirmation that the UK entered into both the protocol and the trade deal with no intention of honouring the terms (as Dominic Cummings has claimed), and that Frost now wants to wreck any kind of constructive renegotiation by focusing not on practical implementation but by returning to a previously settled point of principle. In a Saturday night tweet, Frost protested that “this is not a new point the issue of governance & the CJEU [European Court] is not new, we set out our concerns three months ago in our 21 July Command Paper”.  It might not be an entirely new point, but July 2021 is still subsequent to the conclusion of the negotiations. As I say, an absurd position.

Behind the demand for a new protocol is the threat to trigger Article 16 of the current protocol, which allows either the UK or the EU to take unilateral “safeguard” measures if the protocol is leading to serious problems. This threat is reckless – on legal, constitutional, parliamentary, diplomatic and economic grounds.

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It should first be noted that Article 16 is not a simple “get out of jail” card. It is designed to provide safeguards in specific circumstances (where there are “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”), and allows a response that is “strictly necessary” to address the issue. Lawyers have been quick to point out that a principled objection to ECJ jurisdiction would not work as a justification for suspending large parts of the protocol under Article 16. The government would be subject to a successful judicial review (no doubt resulting in the judiciary getting roundly abused by excitable Brexiteers, once again).

The government could avoid a humiliating judicial defeat if it passes primary legislation disapplying the protocol and amending or repealing section 7A of the Withdrawal Act, but that would, as with the early version of the Internal Market Bill, involve explicitly overriding an international treaty and breaking international law. The Commons (shamefully) might pass such legislation but the Lords (with its current composition) won’t.

Assuming that the government somehow avoids these problems (presumably by not focusing on the ECJ in triggering Article 16) but still takes unilateral action, informed observers of the EU believe that its response will be substantial. Having made, in its eyes, concessions to the UK, patience will have worn thin with a government seen as dishonest and dishonourable. The EU knows that the UK is in a weaker position to withstand a trade war and that international confidence in Britain is fragile. It also knows that the EU’s reputation for being tough negotiators means that it cannot be seen to let the UK win. Reprisals will be well-targeted and painful.

Why would the UK pursue such a strategy? Unless the desire for a hostile relationship with the EU is paramount (and it would give the government a scapegoat for the economic consequences of Brexit), it is hard to say. Let us hope that the bombastic rhetoric is a bluff and this is really all about checks on chilled meat. Even so, such nonsense does the UK’s international standing nothing but harm.

[see also: How Dominic Cummings has given the EU the perfect excuse for Brexit rage]

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