Monday 7 June 2021

Crunch time on the NI protocol

Lord Frost has set the scene for a confrontation this week when he has a meeting with EU Vice President Maros Sefcovic. He has penned an explosive article in the FT (No £) telling the EU it "needs a new playbook for dealing with neighbours, one that involves pragmatic solutions between friends, not the imposition of one side’s rules on the other and legal purism."  By legal purism I assume he is upset that the EU expect the UK to meet the obligations in Northern Ireland that he agreed to back in 2019. His piece is not calculated to smooth any ruffled feathers in Brussels.

There is already huge frustration on the EU side at his abrasive tactics and unhelpful comments to the press and this last intervention before the meeting this week is bound to harden attitudes. Frost talks of the imposition of one side's rules - but this was an agreement reached between the UK and the EU, there has been no "imposition." He did admit:

"We underestimated the effect of the protocol on goods movements to Northern Ireland, with some suppliers in Great Britain simply not sending their products because of the time-consuming paperwork required."

This is some admission. Shane Brennan of the Cold Chain Federation tweeted:

Brennan was one of the people pointing out the problems of preparing for the NI border all through last year and probably feels intense frustration that those at the top ignored all the warnings. Frost is simply making himself look like an idiot.

Plenty of responses on Twitter, with several people pointing to Frost's comments last year when he said of the trade negotiations:

"A lot of what we are trying to do this year is to get them to realise that we mean what we say and they should take our position seriously."

We are now spending this year trying to convince the EU we didn't mean what we said in 2019. How can anyone take us seriously?

Frost also wrote in his FT piece that the UK is going to "take no lectures on whether we are implementing the protocol — we are."  In April it was reported that a Stormont committee had been told the timescale for permanent facilities to be built and begin operating at the Irish Sea border had slipped by two years, and were not expected to be built before 2023.

So, I think perhaps we do need lectures.

Next, when the new WA was settled by Lord Frost, he tweeted congratulations to his "brilliant" team:

Soon after an explainer was published by his team which says this:

"Any processes normally required on goods entering the EU will be implemented at the Northern Ireland/Rest of World border or on trade moving East-West between Great Britain and Northern Ireland. For as long as Northern Ireland participates in the customs arrangements and regulatory zone, there will therefore be processes to ensure that goods entering Northern Ireland destined for the EU pay the right duty and that all goods comply with the appropriate rules. These processes will be largely electronic in nature and any checks on goods will principally relate to regulatory alignment rather than customs compliance (noting, for example, that the UK currently checks only 4% of movements notified through customs declarations, with under 1% involving physical checks of the consignment)"

All they had to do was look at the trade GB-NI and it would have been clear what was going to happen, but instead of facing up to it, they ignored all the warnings and even denied there would be any checks at all.

Let us also not overlook the fact that on the strength of the new WA, Johnson went to the country and declared in an "oven-ready" deal, which the voters endorsed and which the House of Commons passed with four hours of debate. IDS even suggesting they had already talked about it enough.

Johnson opened the debate with the claim that pressing ahead with Brexit would:

“allow the warmth and natural affection that we all share with our European neighbours to find renewed expression in one great new national project of building a deep, special and democratically accountable partnership with those nations we are proud to call our closest friends”.

It does not look like that now.  And remember it was Johnson who appointed the abrasive Frost who seems determined to trash any warmth and affection that EU states might have felt for the UK.

What was going on inside government last year?  We know from UKICE and a conversation they had earlier this year with Jonathan Jones, the former head of the Government Legal Service, that the government did not like what they had agreed to in the NIP:

UKICE: The deal breaker for you, clearly, was the Government’s confirmation that the Internal Market Bill would break international law in ‘limited and specific ways’. I just wondered if you could talk us through what led you to the conclusion that that was something you couldn’t accept, and what you thought that meant for the lawyers left in government. What did you think of the Cabinet Secretary trying to give them some comfort on the basis of assurances from the Attorney General?

JJ: Well, this is a painful bit of history. It didn’t come out of nowhere. It had been apparent for some time that, having signed up to this deal, there were aspects of it the Government didn’t really like, and was going to try to find ways around. Lots of work was being done to see if there were clever arguments or other ways of ameliorating the unwelcome aspects of the agreement, especially the Northern Ireland Protocol. Lawyers were involved in supporting that work, and advising David Frost and others on it.

I think the government of journalists and Vote Leave personnel honestly believed international treaties could be easily changed or even ignored with impunity and David Allen Green in his Law and Policy blog writes that the prime minister himself shows "contempt" for any rule-based regimes – showing that for Boris Johnson rules appear to be for little people.

Green mentions a longer article on IfG by Hannah White a few days ago where she expands on this idea that Johnson has made a habit of bending rules and ignoring advice and I think this is central to the problem. In Downing Street, if the person at the top has no integrity or standards or even a belief system it was always likely to be thus.  As with the cut in the overseas aid budget, it is as if manifesto commitments, the law or international treaties are worth nothing.

But now we are approaching the end of that road in Northern Ireland.

The EU has run out of patience and as the Irish EU commissioner Mairead McGuinness says, the UK was “playing a very dangerous game” by inflaming tensions in the North and she pointed the finger at Lord Frost, who she said was trying to “wash his hands of” and “shred” a deal he helped to negotiate.

What we are living through is Frost and Johnson trying to solve the Irish Trilemma. You have three options, one of which is always mutually exclusive to the other two:

1. Brexit (at the least the maximum version of it chosen by Johnson)

2. A land border across the island of Ireland

3. A sea border as prescribed by the NIP

There is no solution, which is why we will continue to argue until there is no Brexit.

I think we are on a collision course and Frost has stepped on the accelerator. Brace yourselves.

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