The Irish border problems came up again yesterday and I confess it's becoming fascinating to see how the government is going to get itself out of the mess it has created. At PMQs the former chair of the ERG, Steve Baker asked Johnson a question about the UK - the whole of the uk (repeated) - charging its own tariffs from the start of 2021. Baker then seemed to be taken aback that Johnson appeared to answer a different question - although he must have seen him do this regularly.
Johnson told him the NI protocol wouldn't affect the unfettered trade between all parts of the UK. There then followed throughout the afternoon a series of tweets beginning with this one from Baker himself:
It's a pity that wasn't what I asked @BorisJohnson https://t.co/NWbu1x4Vzu— Steve Baker MP (@SteveBakerHW) July 8, 2020
But the answer the PM gave was picked up by another Brexiteer, the Tory MP Marcus Fysh, who himself then retweeted Bakers tweet with a comment of his own:
Nothing in the NI protocol or related to its implementation prevents the UK having full control of its tariff schedule for the whole UK and making deals for the whole UK to reduce those tariffs for trading partners. https://t.co/fKC0nzNXk6— Marcus Fysh (@MarcusFysh) July 8, 2020
This prompted Shanker 'snakeoil' Singham to retweet Fysh's tweet with a comment of his own to the effect that the NI protocol only applies the Union Customs Code (UCC) insofar as it affects or implicates EU trade:
That’s right. The NIP applies the UCC to NI only insofar as GB to NI movements implicate EU trade. We can and should build a system to accommodate this. https://t.co/ITdkzJ0R4i— Shanker Singham (@ShankerASingham) July 8, 2020
Remember these four men; Johnson, Baker, Fysh and Singham have been at the heart of Brexit from the very outset, urging it on regardless of the costs or consequences. But after being steeped in the details for four years with every facility at their fingertips, researchers, advisers and reports by the score they appear not to understand what they or the government they support and advise have signed up to,
It took a final tweet from George Peretz QC to point out they were wrong:
That’s not right: in fact both @MarcusFysh and @ShankerASingham are importantly wrong. Under the Protocol the Union Customs Code applies to GB to NI trade as the default. https://t.co/Heqd4YrZAG— George Peretz QC (@GeorgePeretzQC) July 8, 2020
Peretz points Singham to an explanatory blog post from Professor Stephen Weatherill of Somerville College and Law Faculty, Oxford University, dating back to March this year where he explains the reality of the protocol. It's quite a long piece but well worth reading. In it, the professor says:
"The Protocol is not an easy read. The Protocol is not intended to be an easy read. It is an exercise in studied deception. But the key to understanding it is not to look at what it says, but instead to look at what it does."
I think there has been deception in drafting up the protocol, but one wonders why and on whose behalf. I think both sides were guilty of it because they wanted to get a deal sorted and out of the way. We have made matters worse by keeping up the pretence that no border checks would be required - Johnson has given these sorts of assurances umpteen times to all sorts of groups. Yesterdays PMQs was no different,
As professor Weatherill points out, "Unfettered” is not a legal term of art but it is a stretch to describe trade which involves such administrative encumbrances as “unfettered”.
He explains:
"The Protocol says that it is dedicated to the protection of the UK internal market (Article 6) and that nothing shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market (Article 6(1)).
"But that is not what it does. The UK’s existing internal market is not protected, because what the Protocol does is to require that new barriers be introduced to regulate trade between GB and NI (in both directions, but especially east to west). Some will be required to implement the new customs regime, mentioned above, but others, likely far more significant, will be required to address the point that after the expiry of the transitional period (probably at the end of 2020, pace coronavirus) the GB part of the UK is no longer locked into the “ecosystem” of binding rules and institutional and constitutional disciplines which make up the EU internal market for goods."
Worse as far as the Brexiteers are concerned, the protocol also allows the ECJ a major role in deciding whether or not the UK government has met its obligations under the protocol which states, "The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States”, which has already been imported into UK law under the Withdrawal Agreement Act 2020.
There are a lot of surprises coming up for a lot of people in the next six months but the first may be coming for the people of Northern Ireland.
