Saturday 15 February 2020

The NI protocol: can the British government be trusted?

All the airy-fairy claims attributed to Brexit are just starting to collide with the iceberg of granular detail. The first point of hard contact looks like the NI protocol, the meaning of which is coming under scrutiny. Brexit Johnson has said repeatedly the UK will not be applying checks to goods moving in either direction across the Irish sea, which seems totally at odds with what was agreed. The Commission are moving to raise the matter in the trade talks, prompted perhaps by the EP resolution this week calling on Britain to 'immediately clarify' the position.

On his first day in office, Brandon Lewis, the new NI Secretary of State, stepped right into the row by taking Johnson's line that the UK government will not be introducing checks on GB-NI trade. George Peretz QC on Twitter advised him to heed Denis Healey's first law of holes, while others expressed amazement that a cabinet minister didn't understand what his government had agreed to or what he himself had voted for. I think he probably does know but chooses to parrot the Cummings/Johnson line for career reasons.

It looks increasingly like we are trying to wriggle out of commitments we have undertaken in the agreement Johnson put his name to. Unless this is cleared up quickly, it's not hard to see the talks breaking down while the ECJ settles the matter.

Goodness knows what damage this is doing to our already battered reputation. It looks like we have a government who simply cannot be trusted to abide by its own international agreements.

Lewis and Johnson need to be careful, NI businesses are already pleading with them to 'mitigate' the checks and this is precisely what the EU fear will happen, that checks will be 'mitigated' away to such an extent that nobody can see them.

So this tweet from Tony Connelly at the Irish broadcaster RTE, shows how the EU intend to confront it:
In a working paper circulated among member states, the Commission envisages the creation of 'IT systems and data bases' which keep track of goods moving to Northern Ireland from Great Britain. It signals the EU will take a firm approach to the implementation of the Protocol on Ireland/Northern Ireland which foresees tariffs and regulatory controls on GB-NI goods crossing the Irish Sea.

Connelly says the EU paper sees a two track approach. The first one is to 'properly implement' the Protocol, through ongoing 'monitoring'” to ensure EU law is being applied in NI, and through the creation of these 'IT systems and databases' to govern the movements of goods back and forth across the Irish Sea.

The second track is the working out of what exemptions and facilitations will apply when it comes to tariffs. The Joint Committee will have to work out which goods or categories of goods moving GB-NI are not at risk of crossing the land border into the single market

The key message, according to Connelly, is that these two tracks are quite distinct and separate. In other words, the UK Border Force and HMRC will be expected to prepare for all checks and formalities.  The British can't simply wait to see how the FTA negotiations are going, the EU expect us to 'get it done' regardless of progress in the talks.

If we fail to reach an agreement on trade by the end of the year, then the full range of EU tariffs will apply. The same if the Joint Committee fails to agree a schedule of goods which have tariff exemptions. Alternatively, if we do reach an agreement there won't be tariffs but the need for customs formalities, rules of origin and other regulatory checks will remain forever.

Connelly says: "There is apparently, growing unease among the Commission and member states that the UK will want to renegotiate the provisions of the Protocol through the Joint Committee. One EU diplomat pointed out that the EU can only go on the short paper from the UK government published last week. However, there have been plenty of reports and commentary around Boris Johnson's repeated claims there would be no checks and controls, the diplomat said."

It remains to be seen how the EU deal with it. Connelly has claimed that this might be taken to the ECJ which would certainly cause a huge diplomatic row.  I note Dr North disputes this but George Peretz QC appears to think the ECJ could rule on it, but who knows?  I don't expect it to get that far.

The EU will I am sure link the future talks with a clear warning that a free trade deal, or indeed any deal, is predicated on the UK implementing the NI protocol - in full. Why would you sign another deal with a party you don't trust and who is already reneging on the first deal?

Incidentally, the short paper referred to above sets out the UK government's preferred ideas for the FTA, albeit in nothing like as much detail as the EU Commission's draft mandate:

This [statement] points to a suite of agreements of which the main elements would be a comprehensive free trade agreement covering substantially all trade, an agreement on fisheries, and an agreement to cooperate in the area of internal security, together with a number of more technical agreements covering areas such as aviation or civil nuclear cooperation. These should all have governance and dispute settlement arrangements appropriate to a relationship of sovereign equals.

It's clear we want a raft of separate agreements like Switzerland.  I know the Commssion is absolutely opposed to this, but note also the European Parliament's resolution passed 534 - 29 last week. This clearly states:

Paragraph 3 Reiterates that the Agreement should provide an appropriate framework for the future relationship being based on three main pillars: economic partnership, foreign affairs partnership, specific sectoral issues and thematic cooperation; stresses that the Agreement should also secure a consistent governance framework, which should include a robust dispute resolution mechanism, thus avoiding a proliferation of bilateral agreements and the shortcomings which characterise the EU’s relationship with Switzerland; recalls that the Agreement must conform to Article 3(5) TEU;

Looks like another clash is coming up.

Paragraph 13 is the one on LPF matters and says clearly:

"Stresses that an FTA should aim to allow market access and trade facilitation as close as possible to what existed prior to the UK’s withdrawal from the EU, while it must also continue creating decent jobs and boosting the EU’s export opportunities, encouraging sustainable development, upholding the EU’s standards, and respecting democratic procedures; underlines that a level playing field should be ensured and EU standards safeguarded in order to avoid a ‘race to the bottom’, with a view to dynamic alignment, and the need to ensure that the UK does not gain unfair competitive advantage through the undercutting of levels of protection and to prevent regulatory arbitrage by market operators;"

This provoked a right rant by Rupert Lowe, a former Brexit Party MEP, in the pages of The Daily Express, which he then tweeted about:
This is an insight into the workings of his mind. To get the bad end of a trade deal you have to be conquered by your opponent in war who then force terms on you in a surrender document. This is not how international trade works. He is harking back to how Lord Palmerston might have done things in the 19th century.

No, trade deals are not wars, but like wars, the stronger side usually gets the better of the deal as we are about to discover. There may be some advantages that Britain will get out of the talks with the EU, the USA, China or India, but Mr Lowe shouldn't run away with the idea that they are not going to come at anything less than a very high price indeed.

Finally, Mike Galsworthy has put this clip of our new AG Suella Braverman on Twitter. She claimed that suggestions we would have to pay a bill to leave the EU was just 'not true' - it was 'scaremongering' and that we would in fact get a 'windfall' back from our share of the European Investment Bank.
God help us all. She is in cabinet.
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