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WESTMINSTER REFLECTIONS: Sir Bernard Jenkin MP asks what is next for the Northern Ireland Protocol

The dispute between the UK and the EU about the Northern Ireland Protocol looks set to escalate in the weeks and months ahead.  Both the UK government and the EU will appeal to the rest of the international community to reinforce their respective points of view.  International opinion will have a bearing on what happens next.  So what are the facts?

First, the Protocol is not part of the Trade and Cooperation Agreement that was agreed between the UK and the EU after the UK
left the EU on 29 December 2019.  It is a part of the EU-UK Withdrawal Agreement.  This was tortuously negotiated against the background of the chaos that reigned UK politics following the 2016 referendum, up until Boris Johnson achieved his massive majority in the 2019 general election.

The EU gained the upper hand in the withdrawal negotiations from the start.  The EU exploited the invidious terms of Article 50 of the Treaty on European Union, which were designed to make leaving the EU difficult. The UK was disabled by a government that was far from wholly committed to the referendum result, until Boris Johnson became prime minister.  The House of Commons contained an overwhelming majority of Remain supporters, many of whom were determined to stop Brexit.

Even when Mr Johnson became prime minister, Parliament challenged his authority.  The resulting constitutional confrontation was the political expression of just how hard it is for any nation to implement a wholesale reversal of a defining national policy (membership of the EU).  The Northern Ireland Protocol is a hangover from that period of crisis and dysfunction.  Many of us supported its ratification under duress.  The alternative was to lose everything.

The vote to leave the EU was a decision to take back control over our own product standards and regulation, and this meant leaving the EU single market and customs union.  The Protocol was justified as a means of protecting the peace in Northern Ireland and the Good Friday Agreement, while respecting the integrity of the EU internal market without requiring new infrastructure on the border between Northern Ireland and the Republic.

Trade flows have been disrupted.   There has been rioting in Northern Ireland, and as the marching season approaches,
it will escalate. Power sharing in Stormont is on a knife edge. This is all before the expiration of grace periods, on goods such as chilled meats and pharmaceuticals. If the Protocol is not working, then we must replace it with something else.

Article 13 (8) of the Protocol contains a provision for it to be superseded in the subsequent trade talks. Paragraph 35 of the Political Declaration to the Withdrawal Agreement also envisaged superseding the Protocol. It said: “such facilitative arrangements and technologies will also be considered in alternative arrangements for ensuring the absence of a hard border on the island of Ireland.” A system of trusted traders and mutual enforcement must in the end replace the Protocol to restore the trust between the two communities. To resist this is to elevate the importance of a mere protocol over the Good Friday Agreement and peace in Northern Ireland. This solution is proposed by David Trimble, one of the two men who won the Nobel Peace Prize for negotiating the Good Friday Agreement.

If the EU refuses to compromise, there will be a collision with the UK government, as it understandably insists on asserting the integrity of the UK’s own internal market (which the EU also agreed to respect) as a matter of national sovereignty. The Commission is now suggesting ‘temporary alignment’ for the whole of the UK on SPS standards, but it must know that the UK government, with its powerful mandate and a majority of 80 in the House of Commons, could never accept the EU ‘taking back control.’ President Macron’s assertion at the G7 was that “Nothing is negotiable. Everything is applicable.” If this dogmatism reflects the EU’s position, then expect this dispute to escalate.

The EU is currently imposing more checks on products of animal origin moving across the Irish Sea than France has at all its ports. 325 documentary checks every day are being conducted, compared to Rotterdam, one of the busiest ports in the world, which has only 125. This is wholly disproportionate.  Despite the persistence of the temporary exemptions on many items (the ‘grace periods’) there is no evidence that the EU internal market has been compromised.

Under Article 46 of the Vienna Convention on the Law of Treaties, the UK could argue it is not bound by the Protocol if there is a “manifest” violation of “its internal law of fundamental importance.” The UK’s Act of Union (1800) that created the United Kingdom is of fundamental importance. This would be a messy and confrontational process. It would almost certainly destroy confidence in the Trade and Cooperation Agreement. However, if all else fails no UK government would have any other choice.


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