UK’s approach to solving the protocol problems is illegal
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It’s hard to keep up with Boris Johnson’s government for a few days. No sooner has one noise died down than another crowds out the space for a rational discussion about what just happened.
on Monday this week, Johnson first tabled legislation on the Northern Ireland protocol, which has been declared illegal both in Brussels and by a clear balance of the UK’s most prominent legal minds. The dust had barely settled when Johnson questioned the UK’s membership of the European Convention on Human Rights after a Strasbourg court intervened. Tuesday to delay the deportation of migrants to Rwanda. And then further Wednesday night that Lord Geidt stepped down as an ethics adviser to Johnson after being placed in a “detestable” position over a decision to continue steel tariffs.
From Brussels, there is a dizzying political decline in London as Johnson struggles to control a government that now appears to be in an almost perpetual downward spiral. This week, the European Commission debated and responded to the UK’s threat to unilaterally tear up the protocol regulating post-Brexit trade in Northern Ireland. Given the one-sided nature of UK legislation, Brussels is increasingly recognizing that, as one senior EU diplomat put it, “the UK is not looking for a negotiated compromise”.
As a result, the Northern Ireland protocol process has come to a standstill on all fronts: London, Brussels and Belfast.
On the EU side, the European Commission – as predicted in previous editions – has taken what Mujtaba Rahman at the Eurasia Group neatly describes as the “determined but serene” approach. It has restarted the legal process it shut down last year to create room for negotiation. Now that the UK is eschewing those negotiations by proposing a one-sided approach, this is a logical response. Furthermore, the EU has not overreacted.
At the same time, at the meeting of EU ambassadors this week in Brussels, it became clear that patience is running out. Major EU countries, including Germany, have asked the Commission to prepare to use “all available tools” under the trade cooperation agreement to retaliate should the UK transpose the Protocol Act into law. But we know this is a long way off.
On the UK side it is still not clear how and when that will happen. The DUP remains to refuse introduce power-sharing until the bill becomes law. This is a problem for the government, as legislation is primarily justified as a plan to “save” the Good Friday Agreement by restoring executive power.
Whitehall insiders tell me that Liz Truss has agreed that the bill won’t get a second reading until the DUP moves, so without a new cabinet decision, the two sides are now locked in a game of chicken. How long the patience of the right side of the Tory party will keep this up remains to be seen. And even if this hurdle is overcome and the bill passes the House of Commons, it seems certain that the Lords will ensure that the bill takes 18 months or more to make it into the law code.
It is currently far from certain what will break the deadlock. But since 24 hours in politics is now a long time, you understand why the European Commission’s approach is essentially wait and see.
Concerning the account itself, it is — to quote Jonathan Jones QC – an “extraordinary” piece of legislation. It automatically “turns off” the parts of the protocol related to trade, state aid and the ECJ (see clauses 12, 13, 14) and then, as I reported Monday in advance, in clauses 15 and 18 grant whatever you want powers’ to British ministers to ‘fix’ other elements of the deal. Only three articles of the protocol are explicitly protected.
While, as Jones says, this is far more far-reaching and blatant than the 2020 Internal Market Act (which prompted Jones’ resignation), the government has avoided Brandon Lewis admitting in 2020 that this is a violation of international law.
It has done this by getting some legal top dressing who argues that the “doctrine of necessity” provides a “clear basis” for unilateral action, in this case to protect the Good Friday Agreement.
But the truth is that it is very difficult to find a serious lawyer not employed by the UK government who would agree with this view, because (as the government’s original but rejected advice pointed out) the protocol has a safeguard mechanism (Article 16) that they haven’t even tried.
As Lord David Pannick QC et al noticed in a letter to the Times this week, the doctrine of necessity requires “serious and imminent danger” to which the state in question has not contributed. In these circumstances, “It’s impossible to understand how those criteria can be met.”
And all legal red tape aside, it’s hard to see how the government can claim that it is trying to rebalance the Good Friday Agreement by completely favoring one side (the DUP) over the other, while a majority of the members of the Northern Ireland Assembly continuing the protocol. Jonathan Powell, who was present at the inception of the 1998 agreement, outlines the reality with great clarity here†
All this leads to a pretty incoherent state of affairs. In the narrow melting pot of Westminster, where a prime minister fights for his political life, some of the above may make narrow political sense.
But in the rest of the world – as Michael Gove has rightly warned during recent cabinet talks – this clearly illegal approach to solving the problems posed by the protocol poses significant international reputational risk to the UK.
What do you think of the Johnson administration’s latest move? Email your thoughts to email@example.com†
Brexit in numbers
This week’s chart is from a new study by Professor Jun Du and research colleague Oleksandr Shepotylo at Aston University on the effects of trade frictions on UK exports to the EU.
Their modeling isolates the costs caused by both phytosanitary (SPS) requirements and other technical barriers to trade and finds that the EU-UK trade and cooperation agreement “had a strong, negative and significant impact on the UK’s bilateral trade with the EU”.
As my colleague Nick Peterson reports, the result was that UK exports to the EU fell by 15.6 per cent or £12.4 billion in the first six months of last year as a result of those trade frictions.
It may be worth recalling Lord David Frost’s speech in Brussels in February 2020, ahead of the TCA negotiations, where he lightly dismissed studies on the effects of trade barriers as exaggerated.
He said: “But, in short, all these studies exaggerate – in my opinion – the impact of non-tariff barriers, they exaggerate customs costs, in some cases by an order of magnitude.”
Well, as William Bain, head of trade policy at the UK Chambers of Commerce, points out, these findings are clearly in line with evidence piling up from companies that SPS requirements “have had a very negative impact on UK exports.” to the EU”.
And these effects are not going away, according to Du and Shepotylo, who say the negative effects are “spread across a range of industrial sectors and in all EU countries/export destinations” and “do not appear to be teething problems”.
The negative effects of the low-ambition deal Frost negotiated have been obscured by both Covid-19 and the government’s continued push to return trade to normal. So while this research may indicate, or rather prove, the obvious, it clearly has yet to be stated.
And finally, three not-to-be-missed Brexit stories
My colleague Martin Sandbu also analyzes the Johnson administration’s legislation in its Free Lunch newsletter this week and isn’t impressed either. “It’s unfair, hypocritical and — depending on what you think it’s supposed to accomplish — ineffective at best.”
We wrote about the dispute between the UK and the EU over the Horizon Europe flagship scientific research program a few weeks ago. Anjana Ahuja, a science commentator, addresses the topic in her most recent FT column, concluding that the UK’s withdrawal from the program “would be a mockery of the government’s self-proclaimed ambition to make the UK a global science superpower” .
Agriculture is the largest integrated industry on the island of Ireland. But the UK government’s crackdown on the protocol is proving to be a nightmare for Northern Ireland’s dairy farmers, as my colleague Jude Webber discovered on a recent trip to Craigavon in County Armagh.