UK’s approach to solving the protocol problems is illegal

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It is hard to keep up some days with Boris Johnson’s government. Barely has one hullabaloo died away before another one crowds out the space for rational discussion about what has 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 most prominent legal minds in the UK. The dust had barely settled on this before Johnson was questioning the UK’s membership of the European Convention on Human Rights after a court in Strasbourg intervened on Tuesday to stay the deportation of migrants to Rwanda. And then on Wednesday night Lord Geidt quit as Johnson’s ethics adviser after being put in an “odious” position over a decision to continue steel tariffs.

Viewed from Brussels there is a sense of dizzying political decay in London as Johnson wrestles with the controls of a government that now appears to be in a near-perpetual tailspin. This week the European Commission debated and then responded to the UK’s threat to unilaterally rip up the protocol, which governs post-Brexit trade in Northern Ireland. Given the one-sided nature of the UK legislation, Brussels is increasingly coming to view that, as one senior EU diplomat put it to me, “the UK is not looking for a negotiated compromise”.

Which leaves the Northern Ireland protocol process stuck 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 “firm but serene” approach. It has restarted the legal proceedings that it halted last year in order to create space for negotiation. Now the UK is eschewing that negotiation by tabling a unilateral approach, this is a logical response. Beyond that, the EU has not overreacted.

At the same time, it was clear at the meeting of EU ambassadors in Brussels this week that patience is wearing thin. Major EU countries, including Germany, have asked the Commission to prepare to be able to use “all available instruments” under the Trade Cooperation Agreement to retaliate should the UK put the protocol bill into law. But we know this is some way off.

On the UK side, it is still not obvious how or when that happens. The DUP continues to refuse to enter power sharing until the bill becomes law. This is a problem for the government since legislation has been justified primarily as a plan to “rescue” the Good Friday Agreement by restoring the executive.

Whitehall insiders tell me that Liz Truss has agreed the bill will not get a second reading until the DUP moves, so without a fresh cabinet decision, the two sides are now locked in a game of chicken. How long the patience of the rightwing of the Tory party will put up with this remains to be seen. And even if this hurdle is overcome and the bill clears the Commons, it seems certain the Lords will ensure that the bill takes 18 months or more to get on to the statute book.

It is far from certain, at this point, what breaks the impasse. But given that 24 hours is now a long time in politics, you can see why the European Commission’s approach is essentially ‘wait and see’.

As for the bill itself, it is — to quote Jonathan Jones QC — an “extraordinary” piece of legislation. It automatically “switches off” the parts of the protocol that cover the trade, state aid and the ECJ (see clauses 12, 13, 14) and then, as I reported ahead of time on Monday, in clauses 15 and 18 confers “do whatever you like powers” on UK ministers to ‘fix’ any other elements of the deal. Only three articles of the protocol are explicitly protected.

Even though, as Jones says, this is far more wide-reaching and egregious than the Internal Market Bill 2020 (which triggered Jones’s resignation) the government has avoided the admission made by Brandon Lewis back in 2020 that this is a breach of international law.

It has done this by obtaining some legal top-dressing that 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 that isn’t in the pay of the British government that agrees with this view, because (as the government’s original, but rejected advice observed) the protocol has a safeguard mechanism (Article 16) which they haven’t even tried.

As Lord David Pannick QC et al observed in a letter to the Times this week the doctrine of necessity requires “grave and imminent peril” to which the state in question has not contributed. In these circumstances, “It is impossible to understand how those criteria could be satisfied.”

And all legal flummery aside, it’s hard to see how the government can argue it is trying to rebalance the Good Friday Agreement by entirely taking one side (the DUP) over the other, when a majority of Northern Ireland Assembly members support the continuation of the protocol. Jonathan Powell, who was around at the inception of the 1998 agreement, sets out the reality with great clarity here.

This all adds up to a pretty desultory state of affairs. Inside the narrow crucible of Westminster, where a prime minister is fighting for his political life, perhaps some of the above makes narrow political sense.

But in the wider world — as Michael Gove has rightly warned during recent Cabinet discussions — this obviously illegal approach to resolving the difficulties posed by the protocol contains significant international reputational risk for the UK.

What do you think of the Johnson government’s latest gambit? Email your thoughts to [email protected].

Brexit in numbers

This week’s chart comes courtesy of a new study by Professor Jun Du and research fellow Oleksandr Shepotylo at Aston University on the effects of trade frictions on the UK’s exports to the EU.

Their modelling 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 (TCA) had “a strong, negative, and significant impact on UK bilateral trade with the EU”.

As my colleague Nick Peterson reports, the consequence was that UK exports to the EU fell by 15.6 per cent, or £12.4bn, in the first six months of last year because of those trade frictions.

It is perhaps worth recalling Lord David Frost’s speech in Brussels in February 2020 ahead of the TCA negotiations where he breezily dismissed studies on the effects of trade barriers as exaggerated.

He said: “But, in brief, all these studies exaggerate — in my view — the impact of non-tariff barriers, they exaggerate customs costs, in some cases by orders of magnitude.” 

Well, as William Bain, head of trade policy at the British Chambers of Commerce, points out these findings obviously accord with evidence that has been piling up from companies that SPS requirements “have had a deeply negative effect on UK exports to the EU”.

And these impacts are not going away, according to Du and Shepotylo who find 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 impacts of the low-ambition deal Frost negotiated have been obscured both by Covid-19 and continued government insistence trade is back to normal. So while this research might be stating, or rather proving, the obvious, clearly it does need stating still.

And, finally, three unmissable Brexit stories

My colleague Martin Sandbu also parses the Johnson government’s legislation in his Free Lunch newsletter this week and he is not impressed either. “It is dishonest, hypocritical, and — depending on what you think it is meant to achieve — likely to be ineffective at best.”

We wrote about the UK-EU dispute over the Horizon Europe flagship scientific research programme a few weeks ago. Anjana Ahuja, a science commentator, addresses the topic in her most recent FT column and concludes that the UK’s withdrawal from the programme would make “a mockery of the government’s self-proclaimed ambition to turn the UK into a global science superpower”.

Agriculture is the largest integrated industry across the island of Ireland. But the UK government’s hardline approach to the protocol is proving a nightmare for Northern Ireland’s dairy farmers, as my colleague Jude Webber discovered on a recent trip to Craigavon in County Armagh.

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