On Thursday 23rd June 2016, the people of the UK were asked a question:
Should the United Kingdom remain a member of the European Union or leave the European Union?
The democratic mandate was for the United Kingdom to leave – not just Great Britain. Thus, a UK Brexit not a GB Brexit must be the fundamental aim of David Frost and the UK negotiators. In order to achieve this, the issues facing Northern Ireland must be centre stage in the next round of negotiations.
Mr Barnier needs to understand that sovereignty has always been at the absolute heart of Brexit and therefore the EU stance on fisheries, level playing fields, their insistence on a role for the ECJ and the issue of Northern Ireland are all barriers to arriving at a mutually beneficial free trade agreement.
It is of great regret that certain problematic areas of the Withdrawal Agreement were permitted to survive Boris’s renegotiations when the ‘non reopenable’ Agreement was reopened last autumn, and it is vital that these are on the table when we enter the next and final set of talks in June.
The most crucial of these areas is the section that puts Northern Ireland under EU rules and regulations for trade in all goods, should there be no replacement deal by the December 2020 deadline. The clause that allows this section to be superseded or replaced must be fulfilled.
Despite talk of ‘best endeavours’ and ambition, it seems highly likely current EU intransigence will prevail and the UK will be leaving on WTO terms at the end of the year, at which point, unless replaced, the Northern Ireland Protocol will kick in, leaving Northern Ireland and indeed the UK rather less than sovereign.
The Protocol’s aim seems benign enough at first glance – a way to protect the EU’s Single Market, and avoid a hard land border between Northern Ireland and the Republic. With the island of Ireland already treated as a single entity for the purpose of phytosanitary protocols with limited facilities already in place at ports for the inspection of livestock and small numbers of goods – is it really such a major problem to extend these facilities to become de-facto customs posts for the EU?
Well, yes, when it becomes clear that the EU intend such inspections to go well beyond the current systems for checking cattle for infectious diseases and become a full-blown customs border for all goods.
Something as simple as an Amazon order or an M&S lasagne moving from Great Britain to Northern Ireland can be made subject to EU customs declarations. At least 70% of what is on the shop shelves in Northern Ireland travels across the few dozen miles of sea between us. The small businesses in Northern Ireland that are so vital to its prosperity will have extra costs and delays heaped upon them at the EU’s demand. A British registered fishing boat catching British quota and returning to its home port In Northern Ireland will have its catch treated as an import.
The potential exemptions promised by the Joint Committee under the Protocol are being ignored, with the EU making it clear that they will not be forthcoming. Barnier’s words of ‘de-dramatisation’ have disappeared with anything that crosses the sea to be defined as a ‘risk’ and in need of EU checks.
The reality would be a fundamental degradation of both the principle and practice of a UK single market, in order to protect that of the EU, and a selling out of the people of Northern Ireland and their democratically expressed will to be a part of the United Kingdom.
As DUP Leader, Arlene Foster said last Sunday “We always said that the nature of the protocol meant that there’d be checks. That’s why we voted against it in Westminster; that’s why we weren’t in favour of it because we want to make sure that the businesses and the people of NI don’t suffer.“
The devil is in the complex legal detail and the Protocol effectively creates a new border in the Irish Sea – a red line for Unionists of Ulster – and also hands the European Commission a hefty tool by which they can apply EU State Aid rules to the whole of the UK, and wield authority over UK tax and business incentivising policies should the ECJ judge that these ‘might’ distort cross-border trade on the island of Ireland.
The Protocol doesn’t just stop at customs but could levy tariffs on goods inside the United Kingdom, after we were supposed to leave. It also makes no provision for dealing with trade in services between NI and the EU.
It is inconceivable that the United Kingdom could begin 2021 already hamstrung by the very EU laws and regulations that we will have spent nearly 5 years fighting to unshackle ourselves from. At which point, can we really claim to be an independent, sovereign nation or have we actually accepted BRINO by the backdoor? Furthermore, with a constituent but devolved part of the UK being treated in a unique way to the rest, it opens the door for potential Scottish Nationalist demands and future damage to the concept of Union.
Article 184 of the Withdrawal Agreement states that the EU and the UK “shall use their best endeavours, in good faith and in full respect of their respective legal orders” to negotiate their future relationship referred to in the Political Declaration of 17 October 2019.
Given recent rhetoric and intransigence from Brussels, who are seeking to include measures that form no part of any other free trade agreement between independent sovereign nations, and that go well beyond what is required by the EU of other countries, it seems fairly obvious that the EU interpretation of “best endeavours, in good faith” is pretty ropey and leaves a significant shortfall in meeting what are after all obligations rather than just pretty words.
The UK government needs to make it a priority to replace the Northern Ireland Protocol contained within the Withdrawal Agreement, whether or not we ultimately reach a UK-EU Free Trade Agreement in coming months. Given that it is already accepted by the EU that the Protocol is only a temporary measure – although even in the event of a no deal, it will remain in force for at least four years and any changes are subject to a voting mechanism that breaches all past peace agreements – it would seem a strange hill for them to die on.
One of the most convincing of the potential alternatives, and there are several potentially viable options, would be a system of mutual enforcement, whereby an invisible border exists between Northern Ireland and the Republic, the EU and UK maintain their own customs and regulatory regimes while using their own laws to protect each other’s Single Markets and ensure standards are maintained for goods. Tariffs and verifications can be kept to a minimum and be collected by each side for the other, negating the need for border posts. Disputes and breaches could be managed through an independent tribunal system.
Former EU Commission official, Sir Jonathan Faull proposed a system along these lines last year, stating “Under this proposal it will be a violation of UK law backed up by severe penalties knowingly to export, through the frontier between the North and the Republic, goods which do not comply with the regulatory standards of the EU.”
Ultimately there will need to be a degree of trust – the EU’s reluctance to trust the UK to oversee fair play is hard to square with their promise of ‘best endeavours and good faith’, especially considering that the vast majority of UK – Republic of Ireland goods traffic is either routine daily shipments of things like milk between producers and manufacturers on either side of the NI/ROI border, or goods from the EU destined for the Republic utilising the convenient land-bridge of the UK mainland and vice-versa. Comments by senior EU officials to Dominic Raab last year that ‘Northern Ireland is the price the UK will pay for Brexit’ would suggest that there is rather more political posturing than logic in the EU position.
The current UK government is not the weak creature that the EU had grown used to manipulating. An 80 seat majority and Leave supporting politicians in key positions means that Barnier would do well not to underestimate the possibility of finding himself on the backfoot, with the clock ticking down and Boris making it clear that there will be no extension request. Next week’s negotiations will certainly be high stakes.
Given that the UK government have had no qualms in making it very clear that they will not accept a continuation of the current Common Fisheries Policy, or level playing field demands, or a role for the ECJ, it must be the case that they take the opportunity to ensure that – deal or no deal – the EU is not left holding us hostage via the Northern Ireland Protocol, and that the whole of the United Kingdom is truly sovereign and independent on the 1st January 2021.
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