Roderick Crawford: The Northern Ireland Protocol. The EC’s latest proposal is a trap – designed to tie the UK into its regulatory orbit.

16 Jun

Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.

Though the UK agreed the Northern Ireland Protocol it did not design it. As the party responsible for its implementation — as well as the good governance of Northern Ireland — it has every right and obligation to use safeguards to make sure that the protocol achieves its stated aims, as set out in Article 1 and the extensive preamble of the protocol and to argue for the changes that will make it work.

The Government has been accused of breaking international law by not implementing the protocol in full whereas in fact it is implementing the protocol in line with the stated aims of the protocol and its own wider obligations, it is just that this requires — indeed triggers — the use of safeguards.

The EU, on the other hand, wants the protocol fully implemented first and then it will discuss any changes that are needed. However, full implementation would cause considerable disruption to the everyday lives of the people of Northern Ireland, and cause further social and political disruption that no responsible government can be expected to allow.

The UK has always been clear that it would prioritise the upholding of the Belfast Agreement above the protocol — an objective the protocol arguably supports. It does so at considerable cost diplomatically but with no selfish gain in mind. It is admirable and right to do so.

The EU — Commission and member states — see things differently. There may be a large element of the dialogue of the deaf about this, but there is more to it than that. Take the Commission’s proposal that the UK enter into a temporary Swiss-style SPS agreement with the EU, promoted by Maros Sefcovic. He argues this would deal with 80 per cent of the problems being faced on GB-NI trade and that this agreement could be suspended if the UK needed to do so in order, for instance, to conclude trade deals with others.

However, if such an SPS agreement made the protocol work effectively, how could we remove it? There could be no US-UK trade agreement built on this formula. It does not take much thought to realise that this approach would achieve EU aims of tying the UK to the EU’s regulatory orbit and hamper the future of an independent UK trade policy and thus much of the rationale for the type of Brexit that has been achieved. It is not a solution to the better working of the Northern Ireland protocol: it is a trap, and a rather obvious one at that.

Rather than look outside of the protocol we should look within it to see if we can re-engineer the text to better accomplish its aims. There is an article in the protocol that could provide a considerable contribution to a solution. It would contribute not only to an easing of the trading difficulties but also of the social and political ones. It could reset the mood in Northern Ireland. And because it is in the protocol, the re-engineering can be argued to be a technical fix, not a renegotiation.

The 900 words of Article 5 of the protocol makes up a considerable amount of the articles 5-10 that deal with trade related issues. This article provides for special treatment for goods not at risk of entering the single market; specifically, it states that customs duties will only apply if goods are deemed at risk of entering the single market.

Because the Trade and Co-operation Agreement has created customs free trade in goods between the UK and EU the easements that this article would have provided are redundant. The 35 words of Clause 4 of this article apply the regulations of the single market (as set out in annex 2) to all goods, regardless of whether those goods are at risk of entering the single market or not. Article 5 therefore plays no part in making the protocol work effectively and acceptably.

Given that the Commission accepts that there are goods not at risk of entering the single market — goods that the Joint Committee were obliged to identify by the end of December 2019 — why should such goods have to comply with EU regulations at all?

If clause 4 of article 5 was amended so that EU regulations were not applied for goods not at risk of entering the single market (or in the case of processing of goods, not applied at the discretion of the Joint Committee) then the protocol would have much of the flexibility it needs to work to the satisfaction of all parties — bar those elements playing silly games. This would, for instance, allow the retail sector to work without hindrance from the protocol — and after all, unlike manufacturing, the protocol offers it no upside).

We don’t need a new protocol — though we might want one; we need it re-engineered. The problem with describing the protocol as “international law” is that you are either obeying the law or breaking it. In reality the protocol is as much policy as law. It attempts to address a unique situation; it has never been done before; it was not road tested and those for whom it was applied were only partly and imperfectly consulted.

The UK wanted to await the results of the EU-UK future relationship before finalising the framework for Northern Ireland; had we waited it is hard to see how Article 5 would have been worded as it is in the current protocol. The idea that the protocol would or could work without re-engineering along the way was unrealistic in the extreme and surely arrogant too. We are living with the consequences.

The Commission has claimed that there is no alternative to the protocol, that it cannot be amended and that any failure to implement in full is a breach of the UK’s international obligations. None of this is the case. If we cannot sort out the design faults in the protocol then the UK will have to use Article 16 safeguards to ensure that Northern Ireland is protected from the serious economic and political consequences of the protocol’s failings; that is what they are there for.

This would not be ideal, but the UK government has to have the power as well as the responsibility to govern properly in Northern Ireland. The publication in this last week of Northern Ireland Life and Times annual survey, the most reliable survey of public opinion there, shows only 26 per cent supporting a united Ireland: 55 per cent supporting the continuance of the Union. This reaffirms the necessity of ensuring the long-term stability of a workable protocol and the moral and legal authority the UK brings to the table as it works with the EU to achieve this.

Roderick Crawford: Northern Ireland. The Belfast Agreement gave it a stability which this Brexit protocol threatens to undermine.

25 Feb

Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.

This year marks the centenary of the foundation of Northern Ireland. Its genesis arose out of the Irish problem and its solution; controversial then and now. For its first 50 years, it was the UK’s first devolved parliament; whilst discriminating against Catholics, it had higher living standards than the Republic, helped by the UK’s welfare state.

Civil rights protests, the Troubles and the failure of the Sunningdale power sharing talks in 1972-73 brought over a quarter of a century of Direct Rule; This, by fits and starts, de-sectarianised the Northern Irish state; this process was completed by the reforms of the 1998 Belfast Agreement, which ended the Troubles and has sustained social stability ever since.

The constitutional foundation of this settlement is the continued place of Northern Ireland in the Union of Great Britain and Northern Ireland, based on the consent of the people of Northern Ireland. The United Kingdom (the Union) provides a wide tent for ethnic, religious, political, cultural, legal, and constitutional norms; for financial redistribution and economic support. Whilst not a perfect fit for Northern Ireland, the Union is the best fit there is for now and the near future, beyond which we cannot look. The majority of recent polls show a good majority for remaining in the Union; more detailed face-to-face polling shows still higher majorities.

Changes to the demographic balance between communities don’t translate proportionally in to changes in support for remaining in the Union or for unification with the Republic. The Union — or simply ‘Northern Ireland’ — offers the least threat to any community in Northern Ireland and by far the most stable framework for all. London has no selfish interest in Northern Ireland – only its obligations to ensure peace, good governance, and access to justice. The role of the Union in Northern Ireland is one of fulfilling its duties rather than exercising its rights; this is key to maintaining the support of the majority of the people of Northern Ireland, and the acquiescence of the rest for Northern Ireland’s continued place in the Union.

As in Scotland, there is a difference between where the aspirations of identity and where those of self-interest lead. Northern Ireland still provides its people with a better standard of living than the Republic does — including higher quality public services, more generous welfare provision and higher levels of public sector employment; this appeals to both communities. Unification would reduce these benefits and living standards would fall. The value of the Union has been highlighted again by the furlough schemes and the better vaccine roll out compared to the Republic.

The Belfast Agreement has been in place for almost a quarter of a century — it will likely be in place for another quarter of a century yet. Whilst it has proved controversial for many in the Unionist community, it is now accepted even by the DUP who campaigned against it in 1998. It has bedded down, and is accepted, gladly or grudgingly, as framing the way things are.

It is hoped by many that the same will be said of the Northern Ireland Protocol, once it has bedded down. However, there are key differences. The Belfast Agreement was designed around the specific circumstances of the people of Northern Ireland — largely by local political negotiators — and aimed to serve their interests above those of any external party. It has been amended as needs have arisen and the application of parts of it have been suspended as circumstances have required.

It was originally hoped that the application of EU regulations under the Protocol would not be prioritised over the commitment to protect the Belfast Agreement in all its parts. Further, the inclusion of the consent clause that Boris Johnson negotiated into the amended Protocol of October 2019 was meant to subject the Protocol to democratic accountability, and thus to give the EU real incentives to make the Protocol work in the interests of all the people of Northern Ireland. Early signs are that this is not working out — though this may not be a lost cause.

The problem with the working of the Protocol is that it discriminates against the East-West dimension to a degree that fundamentally conflicts with the balance of the Belfast Agreement, with its emphasis on maintaining Northern Ireland’s place in the Union, as well as Strand Three of the Agreement ,concerned with the totality of relationships on these islands.

Significant barriers and costs on goods trade from Great Britain to Northern Ireland, restricting access to goods and raising costs, makes this problem only too real to the man and woman in the street, unsettling significant elements of the Unionist community; this may well cause serious political and social destabilisation in the immediate future. Whilst much can be done to calm the atmosphere, ignoring the imbalance in the Protocol is not one of them: this must be addressed properly.

In 2017, the UK and EU mapped the regulatory framework required to support North-South co-operation post-Brexit; this resulted in the continued application of a wide number of EU regulations in Northern Ireland. No equivalent exercise was conducted for East-West co-operation. Such an exercise should now be conducted to inform UK proposals for changes to the operation of the Protocol and to give those proposals credibility with the EU and in Northern Ireland. A parallel real-time measure of trade and economic impacts of the Protocol would help create an atmosphere where facts not fear inform conversations about the Protocol in Northern Ireland and give the UK timely information to share with the EU.

Key problems in the current operation of the Protocol are found in Articles 5 and 6. Article 5 deals with exemptions for duties on goods ‘not at risk’ of entering the European Union but does not authorise wider exemptions to non-tariff barriers. Article 6 seeks to protect Northern Ireland’s position in the UK internal market but fails to address East-West trade, focusing on West-East (NI-GB). Of Northern Ireland’s external goods sales (to GB and the world), just over twice as much goes to the UK as to the Republic (though for services it is four times as much); for imports into Northern Ireland, four times as many goods come from Great Britain compared to the Republic. East-West trade also impacts Northern Irish society more than West-East and is therefore far more politically sensitive.

The UK has a commitment to fight Northern Ireland’s corner. This is recognised in the Protocol which reprints paragraph 48 of the 2017 Joint Report. This states that the UK remains ‘committed to protecting and supporting continued North-South and East-West co-operation across the full range of political, economic, security, societal and agricultural contexts and frameworks for co-operation, including the North-South implementation bodies’.

Fulfilling this commitment requires the UK to negotiate concessions that will make the Protocol work better for Northern Ireland. The case for formal amendment is strong but politically difficult for the EU — though it may yet come to that; it is far easier to allow permanent exemptions to the strict rules governing the operation of the Protocol and to run it on a light touch basis. At the end of the day, if negotiations fail despite the evidence of serious economic and societal difficulties and trade divergence resulting from the operation of the Protocol, then it is the UK’s responsibility to act unilaterally to support Northern Ireland. This would be a correct use by the UK of Article 16 and would be a fulfilment of its obligations under the Belfast Agreement.

Roderick Crawford: Brexit and trade. What we are and aren’t committed to in order to help bring about a level playing field

17 Dec

Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.

According to Ursula von der Leyen, addressing MEPs this week, the two key issues remaining are the level playing field and fisheries. Though progress has been made in agreeing a robust mechanism for non-regression on common standards for a level playing field, she said that ‘difficulties still remain on how to really future-proof fair competition’.

This is the issue that has been described as bringing back ‘dynamic alignment’ of the level playing field through the back door, and was one of the main causes of the reversal of progress that occurred in the first week of December, with UK claims that the EU had brought new issues to the table at the eleventh hour – a claim denied by the European Commission.

In October last year, the UK and EU agreed a Political Declaration on the future relationship. As the UK understands it, this declaration set out the parameters for the negotiations for a future relationship; as the EU understands it, the declaration is a legal text that needs to be developed into the final agreement.

Whilst a lot of water has gone under the bridge since the declaration was agreed, it is still a key reference document for both sides, despite differences in their view of its standing and interpretation.

Section XIV of the declaration says that ‘the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change and relevant tax matters.’ The envisaged level playing field is one based on non-regression of existing standards in specified fields; it provides no basis for any form of ‘dynamic alignment’.

However, the European Council mandate to the Commission that sets out their negotiating guidelines does hint at ‘future-proofing’ the level playing field. After re-stating the Political Declaration’s language on maintaining current high standards, it adds a call for continued improvement of levels of protection and ensuring high levels of protection over time. This is likely to be the source for authorising the Commission to put dynamic alignment back on the table.

There have been inconsistencies between the declaration and the European Council’s mandate before; the paragraph that immediately follows the aforementioned goes on to say that the UK-EU partnership should apply EU state aid rules in and to the UK. The attempts to have EU state aid rules and a role for the European Court of Justice were withdrawn in the early summer, not least because they were clearly contradicted by the text of the Political Declaration itself, as well as implicitly by previous Council mandates.

Dynamic alignment is ruled out explicitly, unless both parties want it by going further in their ambitions for an even closer relationship than the declaration itself envisages; but that is not the course that the negotiations have taken. What is clear is that the UK has signed-up for non-regression in key areas, but there is no requirement for any form of dynamic alignment. That makes it hard for the Commission, and Michel Barnier in particular, to press this issue.

After all, if it was not required in October 2019, when we agreed the Withdrawal Agreement, why is it needed now? And what is the source of the authority to argue for it?

That a deal on the future relationship will require level playing field commitments is clear, as I have pointed out in articles on this site previously. However, the nature of them is ‘commensurate with the scope and depth of the future relationship’; the deal that is being negotiated is not as ambitious as that envisaged by the political declaration: far from it. Part of the reason that the UK has chosen a thin deal is to ensure that level playing field guarantees are limited and UK sovereignty is maximised.

There is little point in paying the same price for a thin trade deal as for a deep one, not least when that deal is protecting the EU’s substantial surplus in trade in goods without commensurate protection for the UK’s more modest but significant trade surplus in services. The Commission consistently focuses on the size of the Single Market to which we are negotiating conditions of access rather than the profitability to the EU of access to the UK’s market.

The proposals for lightning unilateral tariffs, that appear to have been dropped by Brussels this week, were also outside the Political Declaration’s parameters for dispute resolution. The declaration states that ‘The Parties should first make every attempt to resolve any matter concerning the operation of the future relationship through discussion and consultation, including through the Joint Committee’ which may refer matter of dispute to an independent arbitration committee.

They were set out in the European Council mandate, however, which proposed ‘autonomous measures to react quickly to disruptions in equal conditions of competition in relevant areas, with Union standards as a reference point’. There is no mention in the political declaration of ‘autonomous measures’ being used in this way. Nor of Union standards as the reference point; rather it is the ‘common standards’ drawn from union and international standards, and then only as agreed, with the principle of these should be commensurate with the depth of the agreement.

Dynamic alignment, far from promoting a solution, is putting a settlement further from our reach by making level playing field guarantees unpredictable and represents a far greater threat to UK sovereignty than non-regression guarantees. There was no trade off to remove the demand for EU state-aid rules to be applied nor for a role for the court of justice, after all. The UK and EU excluded dynamic alignment from the level playing field negotiations before the Withdrawal Agreement was signed. There was good reason for that. The EU cannot be allowed to go back on the political declaration it committed to as a basis for negotiations over the future relationship. After all, the Commission set the rules for the negotiation.

Roderick Crawford: The EU has an obligation to improve the flawed Northern Ireland Protocol. And isn’t meeting it.

10 Sep

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

The Northern Ireland Protocol is back in the news again. This time, attempts to address problems with the Protocol are further haemorrhaging confidence in the Government at home and abroad. The proposal to provide powers to ministers that, if used, would, it is claimed, breach its obligations under an international treaty, has caused uproar.

There are a number of problems with the Protocol that have received widespread coverage since its publication in its original form in 2018; despite the important changes to the Protocol that were negotiated by the Prime Minister, the amended Protocol remains unsatisfactory.

The Protocol’s preamble declares in Article 1, that it is

‘without prejudice to the provisions of the 1998 Agreement regarding the constitutional standing of Northern Ireland…’; it ‘respects the essential state functions and territorial integrity of the United Kingdom’; it ‘sets out arrangements necessary to address the unique circumstances on the island of Ireland, maintain the conditions necessary for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions’.

The problem is that the Protocol does not achieve these aims. The constitutional position of Northern Ireland is changed by the Protocol; the essential state functions of the United Kingdom are not respected, and the Belfast Agreement is not protected: in David Trimble’s words, the Protocol drives a coach and horses through the Agreement.

It was always going to be hard to make the Protocol achieve all these aims, but in truth it was designed to do only two things: secure the EU internal market whilst avoiding a hard border on the island of Ireland. The text that was agreed was a case of might creating right – hardly for the first time, and an example of what the UK itself has done in the past.

However, as we have discovered across the centuries, such rights rarely last. It is a well-established rule that agreements reached when one party is compelled to sign up under intense pressure are unstable, and are at high risk of breaking down. The EU held the whip hand in 2018 and got an agreement on its terms, but it always looked unsustainable – and so it still looks today. It remains an example of poor statesmanship.

The UK is committed to the Protocol, despite this. However, in practice, a workable protocol requires arrangements that its wider aims – respect for the UK state’s functions and for the territorial integrity of the United Kingdom as well as the protection of the Belfast Agreement in all its parts.

In 2019, Theresa May’s government published ‘UK Government’s commitments to Northern Ireland and its integral place in the United Kingdom’. This set out unilateral commitments to build on commitments already made in paragraph 50 of the December 2017 Joint report ‘to protect Northern Ireland’s place in, and maintain access for Northern Ireland businesses to, the UK internal market. It is worth recalling the relevant sections of the Government’s 2019 commitment (paragraphs 35-37):

‘At the heart of preserving the economic and constitutional integrity of the United Kingdom is the maintenance of the UK’s internal market as we leave the European Union. This was reflected in the December 2017 Joint Report between the UK and EU. At paragraph 50 it set out that, in all circumstances, the UK will ensure the same unfettered access for all Northern Ireland businesses to the whole UK internal market.”

This commitment provided the platform for maintaining the integrity of the UK internal market, and ensuring that sales by Northern Ireland businesses to Great Britain, which are so critical for business and the economy, are protected.

‘The Protocol protects Northern Ireland’s position in the UK internal market through a series of safeguards and provisions within the legal text. For goods that are moving from Northern Ireland to Great Britain, the Government has committed to ensuring that Northern Ireland businesses will continue to enjoy the same unfettered access to the whole of the UK’s internal market.’

‘The Protocol expressly confirms that nothing provided within it will prevent the UK from ensuring this unfettered access. It is also clear that there will be no tariffs, quotas, or checks on rules of origin between Great Britain and Northern Ireland.’

‘At the same time, we recognise the imperative to underscore that protection domestically as well. And that protection must be robust and lasting. That requires strong protections in law that guarantee unfettered access for Northern Ireland businesses when placing goods on the rest of the UK market. This of course must recognise the devolved competences of the Scottish and Welsh governments, and recognise that we need to preserve a level playing field for businesses throughout the UK. But it is critical that the law is unequivocal in setting out that businesses in Northern Ireland would retain full access to the whole UK internal market, even in a backstop scenario. We will enshrine this protection in primary legislation.’

It was hoped that the consent clause that the Prime Minister negotiated last autumn would provide an added incentive for European Commission co-operation to make the Protocol workable. But rather than work with the UK to address the operational challenges and address the stark contradictions in the protocol, the Commission has treated the Protocol as a test that the UK must pass to be rewarded with a free trade agreement.

This has not helped. There are real, practical problems to implementation that require EU engagement and flexibility – we have seen very little of that so far. The Commission is happy to dictate the rules, but not prepared to lift a finger to help achieve our shared objectives.

Because the vast majority of Northern Ireland trade is with the rest of the United Kingdom, it is vital to ensure that this trade is fully protected and also, in line with the Protocol’s aims, the UK’s internal market is respected too. The original intention for the protocol was that it would be minimalist – it would require the minimum necessary alignment with EU law in order to avoid a hard border.

The Protocol allows for different treatment for goods deemed ‘not at risk of entering the Single Market’. Goods for sale in retail outlets have been proposed as falling within this status, thereby avoiding a rise in household shopping costs, but not even retail goods have thus far been designated ‘not at risk’ by the Joint Committee.

In failing to designate goods as ‘not at risk’ is the Commission not guilty of breaching, by omission, its international obligations under the Protocol. The difference between the UK and the EU is that the UK government is highly accountable: the Commission is not – not by the European Council, the Parliament nor by the Press.

In 2019, the Government set out in a unilateral declaration its understanding that if an agreement to supersede the Protocol cannot be concluded, in whole or in part due to a breach of good faith, then it would not be prevented from instigating measures that could lead to the disapplication of obligations under the protocol – but with the proviso that it would uphold its obligations under the Belfast Agreement and in all circumstances avoid a hard border.

We are not exactly in new territory. The powers proposed for ministers would allow them to fulfil the aims of the protocol in the event of bad faith by other parties and fulfil their responsibilities under the Belfast Agreement. Let us hope that this is just a storm in a tea cup.

Roderick Crawford: Brexit is the beginning of a journey to transform Britain

20 Jul

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

Brexit means Brexit, said Theresa May.    She was right – but only in part. Under Boris Johnson, Brexit means much more than ‘getting it done’; it offers the opportunity as well as the necessity for the economic and social transformation of the UK itself, and thus of government too.

So much of what makes the UK tick was caught up in and by the EU – whether that was booming, coasting along or withering on the vine – that to simply ‘do Brexit’ is not enough. To make a success of Brexit requires the transformation of the UK: there can be no more business as normal: that was the case even before Covid-19 came along.   For that, success is needed right across economic and social policy, not just trade policy.

Post-Brexit, the UK needs to address the problem in the housing market, because it’s a key contributor to economic prosperity, social stability and individual and family wellbeing.  The house-building industry and the housing market need radical reshaping; the industry needs new entrants, new building opportunities, innovative building that delivers significant productivity gains – and all on a scale not seen for generations.

For that, we need a government that will change the current closed market into an open one – and make land available to new entrants and for new projects.  It needs to create new incentives for landlords to move from short-term tenancy agreements to three or five year leases for existing and future tenants thus changing insecure accommodation into secure homes at the stroke of a pen.

It has been suggested that York should become the seat of the Lords or Parliament while the Palace of Westminster is refurbished and long term a government hub.  For this, York needs tens of thousands of new houses and flats, along with offices and conference centres, improved infrastructure, including its own airport and better regional road and train links.

York as a permanent government hub in the North makes good sense, but it could also pull financiers and more creative and service businesses north to add value to the regional economy – including manufacturing.  That would be a serious boost to the North – and a defining moment in the remaking of the UK, not just England.

New technologies, new processes, new designs, new businesses, partnerships – and new regulatory frameworks – are key to economic transformation.  This formed the basis of the UK’s first industrial revolution and the subsequent industry-sector revolutions since then.  Whatever keeps new entrants and innovations out of business sectors ought in principle to be removed, subject to legal and moral considerations.

Government tends to consult with the same old bodies about changes to market regulation, but most of those it consults are beneficiaries of the system as it exists or are so immersed in it that they can only see the possibility of reform of the present system, they cannot see a totally new one.

Where you need new entrants, consult with those outside the sector wanting to get in or expand, not those established firms trying to keep competition out and act accordingly.  Tinkering with the regulatory frameworks isn’t enough anymore –  extensive deregulation and re-regulation are both required, and in heavy doses for some sectors.  That was a key element of Franklin D.Roosevelt’s New Deal.

The United Kingdom needs a foreign policy that both supports UK interests and which the public supports – one that brings the UK together; the current review needs to put these aims to the fore.  We should seek to play a leading global leadership role, but with limited resources that means – at the least — focus, innovation and partnership.

As a general set of principles for the UK global aims, post-Brexit, we would do well to turn for inspiration and leadership to the Atlantic Charter, drawn up in August 1941 between Roosevelt and Winston Churchill on the warships Augusta and Prince of Wales, off Argentia, Newfoundland.  Its sets out eight common principles on which they sought to base their hopes for the post-war world; it remains highly relevant today, not least because due to wartime events, the war aims of the Soviet Union and the Cold War, its full hopes were not realised.

In summary, the two nations:

  • Seek no aggrandisement, territorial or other;
  • Have no desire to see territorial changes not in accord with the freely expressed will of the peoples concerned;
  • Respect the right of all peoples to choose the form of government under which they live and to see sovereign rights and self-government restored to those forcibly deprived of them;
  • Endeavour to further the enjoyment of all states, great or small, of access, on equal terms, to the trade and the raw materials of the world which are needed for their economic prosperity;
  • To bring about the fullest co-operation between all nations in the economic field with the object of securing, for all, improved labour standards, economic advancement and social security;
  • They hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all may live out their lives in freedom from fear and want;
  • Such a peace should enable all men and women to traverse the high seas and oceans without hindrance;
  • They believe that all the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force.

Today we would want to add in a few more key principles — addressing climate change would of course be amongst them.

These principles could serve the UK well as a foundation for what it hopes for the world and its role in it; it could form the basis for future partnerships across the globe and guide its work through international bodies like the WTO or as it seeks to bring stability to the global order in a time marked by great change and challenges.

As we enter the next rounds of negotiations with the EU, it is as well to remember that any agreement we reach should support and not restrain the broader aims of national and state renewal for the UK and its freedom of action in foreign policy.  An equitable agreement at this stage would make a positive contribution to realising UK ambitions

Roderick Crawford: Almost halfway through July, there is still no sign that a trade deal with the EU is possible – never mind probable.

13 Jul

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

We are approaching the moment of truth in the negotiations on the future relationship. In February, in the command paper on its approach to these negotiations, the Government set out the high-level meeting in June as the point when it hoped the broad outlines of a deal would be clear.

Covid-19 intervened. But at that meeting last month, the Prime Minister said he saw no reason why ‘a deal’ could not be done in July, giving businesses certainty about the post-transition regime. Accelerated talks were begun to break the deadlock.

Almost halfway through July, there is still no sign that a deal is possible – never mind probable. At the end of the restricted talks earlier this month, and again after the London discussions ended last Thursday, Michel Barnier reported that ‘serious divergences remain’.

David Frost’s assessment at the end of the third round of talks in mid-May was that ‘we made very little progress towards agreement on the most significant outstanding issues between us’; at the close of the fourth round in early June he reported that ‘progress remained limited’; in July, hhe stated that the talks ‘underlined the significant differences that still remain between us on a number of important issues’ — he made no statement at all at the end of last week’s discussions.

To see how great these differences are you only need to look at the draft agreements published in March by both parties. These set out very different visions of the future relationship; the EU set out a draft for a New Partnership with the United Kingdom; the UK set out a draft text for a Comprehensive Free Trade Agreement with supplementary agreements on other matters — justice, fishing, etc, but strictly no institutional framework for foreign policy and defence.

The partnership as set out by the EU is not one between equals: its conditional values, its governance structure, the role for EU rules and the Court of Justice, as well as the assumptions and tone it takes across the draft document represents an attempt to hold the UK within an institutional framework set by Brussels, for Brussels. The EU is, perhaps, blind to some of this.

The UK just will not accept such a partnership – one that it does not want cannot be forced on the UK. Yet this remains a point of significant difference between the parties. The EU has scope in the Political Declaration to opt for alternative institutional arrangements along lines the UK could accept at little cost to itself.

So on to the comprehensive free trade agreement that is the core of the future relationship. The two parties are at odds on the level playing field, and their red lines clash head on. The EU insists there can be no agreement on a free trade agreement without robust guarantees on a level playing field – the language of the political declaration; it has been clear about this since the European Council guidelines on these current negotiations were set out in March 2018.

The UK insists that the UK must have control over its own laws – that was the point of Brexit – and that it cannot be required to remain aligned with EU law; such a requirement, after all, is not usual in free trade agreements.

The question is: can these apparently irreconcilable positions be reconciled? They might be. Could limited but core ‘common high standards’ – the wording in the political declaration – be agreed, that provide sufficient robustness to the level playing field for the EU but which do not significantly restrict the UK’s freedom to diverge from standards originally set out in EU regulations?

These core ‘common standards’ could be extracted from and entirely de-coupled from EU law – and thus ensure there is no role for the Court of Justice – and be included in an annex of the FTA; they should only include standards that significantly affect competition, a small subset of the regulations applying in any area of the level playing field.

Robust guarantees do not need to be comprehensive. They can provide the pillars of the level playing field structure with the rest filled in by commitments along other lines. These could be similar to those suggested by the UK, including on taxation as it relates to competition, or by other arrangements like equivalence or mutual recognition. This would be a mixed economy, bridging the gap between UK and EU positions with both parties making compromises.

As to enforcement, an agreed set of core standards could be backed up with a dispute mechanism operating within the agreement – again, no role for the Court of Justice; this could be complemented by unilateral rights to action to guard against substantial undermining of standards by one party.

If the next round of negotiations included a focus on identifying such a set of core standards, to provide sufficient robustness for the EU while not limiting UK political freedom in any meaningful way, a satisfactory solution might present itself to both parties.

A fishing agreement would still need to be put in place. Perhaps flexibility over annual quotas would help – do we really want to negotiate annually? We are not Norway – fish is not that important to us economically nor does it affect anywhere near so many of our communities. A better deal for UK fishermen, a better deal for the marine environment and an improved basis for the policy there should be, but regard for neighbouring fishing communities too.

We are clearly a long way from bridging the differences between the two parties at present; without concessions from both sides, there won’t be an agreement. For many, WTO terms are good enough for trade and the compromises required for a deal are politically unacceptable.

However, the Government has said we can get a deal. If we can agree the mutual compromises on the level playing field to secure a workable comprehensive free trade agreement, re-set the spirit of the agreement as one between sovereign equals (which is what is required for it to work), and agree an architecture for the FTA and supplementary agreements along lines preferred by the UK, then we would have a deal truly worth making. Time is, however, running out.

Roderick Crawford: We have interests in the rest of Europe, but must be free to run our own foreign policy

6 Jul

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

One could be forgiven a sense of déjà vu as we enter the second round of accelerated talks, this time in London. The high hopes of breakthrough at the start of last week’s talks were dashed as they broke up on Thursday last. The same sticking points remain: the legal structure of the agreement, level playing field commitments, including state aid, and of course fisheries. Specific details have not been released, so it is hard to comment on why the progress on getting agreement on underlying principles has failed to materialise.

Though working through the underlying principles of the agreement should help identify where the barriers to agreement lie, a look at the overarching principles of the negotiating positions of the two parties may throw better light on the lack of progress.

Last month, Der Spiegel ran an interview with the Anglophile former German Ambassador in London, Peter Wittig; he provided a revealing glimpse into the EU’s perspective on the negotiations. Asked whether, in effect, the EU should accept a hard Brexit and let the UK go, he says, no:

‘We should continue to endeavour to tie Britain as closely as possible to the European Union. Europe can only survive in the competition between the USA and China if it is strong and united. I always thought it was good that the Federal Government was the voice of pragmatic reason in all these difficult negotiation phases. I advise everyone not to think about the short-term effect, but to keep a strategic eye on where Europe should be in five, ten or 15 years.’

The quote is interesting because it is part of an intra-German conversation from a friend of the UK expressing pragmatic views on the big picture in which Brexit sits. While the UK has been caught up in its own arguments and political storms – and of course running ourselves down – we have lost sight of the impact of Brexit on the EU: it has been considerable.

The EU has lost its only global city, its only global finance centre, its most dynamic services economy, 12 per cent of its consumers – more when weighted for income – and its only universities ranked in the world’s top ten. It has lost a major pillar of good governance (the UK was a consistent upholder of the EU’s rules-based system) and a source of sound counsel.

As the EU looks to develop its common foreign policy and defence co-operation, it does so now from a far weaker base. The UK was one of two EU permanent members of the UN Security Council, one of two nuclear powers.

It had the only blue-water navy capable of working with the US; China has just achieved a two aircraft carrier capability – the UK will soon be there, too. It has a battle-tested professional army and air force. The UK alone had the capability of power projection across the world – albeit with limitations – and the will to do so. The Foreign Office, despite its shortcomings, is still world class and the UK’s influence is, arguably, stronger across the world than any single EU member state.

The EU is diminished, while the fault lines on which it sits become more unstable. To its east, Russia is reviving in confidence as its actions in Ukraine, Syria, and its challenges to the West demonstrate. Turkey has become a regional player, outside of the NATO fold, and looks to a future untied to the EU. The Middle East and North Africa are unstable, and a source of potential and probable mass migration to the EU driven by demographics, economic and political failures and climate change.

The UK looks out across the North Sea to Norway, Denmark and the Netherlands, and across the Channel to Belgium and France; to our west lie the USA and Canada. It is an envious position to be in, though not one deserving of complacency: we still want a secure and stable EU. We are committed to the peace and security of Europe through NATO; in these respects, our interests and obligation in NATO, we are tied in.

One of the problems in the current negotiations is that the EU has re-written history to build up its own role in keeping the peace of the last half century. One of its foundational myths is that it has been the EU that has kept the peace in Europe. It even claims responsibility for the Belfast Agreement.

But its claims to success are absent of evidence. It is the transatlantic partnership that has kept the peace in Europe; it was the Northern Irish, London and Dublin – with US support – who brought about the Belfast Agreement. The EU forgets its role in the break up of Yugoslavia, and the subsequent wars and civil wars ended only with US engagement. Its diplomatic bungle over Kosovo, when it resurrected the July 1914 ultimatum to Serbia, ended likewise – and at great cost in civilian lives. The EU has not kept the peace in Europe.

The EU’s ambitious partnership proposal is overly ambitious, based as it is on inflated ideas of its own story and present capability; the ideas of uniquely shared values and interests ignore that they are shared with the English-speaking world and beyond. When the myth is removed, and the reality of the EU’s position is seen — its risk levels, its lack of investment in NATO and its own level of defence preparedness, and its poor relations with its neighbours — it is hardly an attractive partner; more of a liability.

The EU, quite understandably, wants the UK as closely tied in as possible to its defence and foreign policy (and economy). The UK, quite understandably, does not. Present commitments through NATO provide sufficient security to the EU’s members and help balance much, though not all, of their security concerns. The UK will do more, through co-operation bilaterally with members and freely alongside the EU too.

The EU and UK can co-operate to secure shared interests, but ultimately, though the UK wants a stable and secure EU and stability and security for its member states, there are differences in interests. The UK must be free to run its own foreign policy, champion alliances that may take precedence over that with the EU and policies that the EU will oppose — even the freedom to support member state interests against those of the EU institutions. It cannot be tied-in to a punitive governance structure to prevent it exercising such choices.

The overarching principles of the EU and the UK as regards governance of the future relationship are in conflict — we can’t be tied-in and free simultaneously; papering over the differences would breed confusion and likely lead to fresh upsets in the future. The UK cannot afford to accept a single overarching governance structure or claims upon it in the field of the EU’s common foreign policy and defence.

Roderick Crawford: The EU must drop its maximalist approach to the Northern Ireland Protocol

29 Jun

Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

Any final agreement on the future relationship is dependent on the successful implementation of the Withdrawal Agreement; not surprisingly, it is the implementation of the Northern Ireland Protocol where British and EU positions are furthest apart.

The UK and EU have always viewed the protocol through different lenses. In part this difference is because the EU doesn’t fully understand the Belfast Agreement and was incredibly slow to recognise that it undermined rather than supported many of its positions.

Having framed the protocol as a defender of the Belfast Agreement, the EU struggled to accept that the agreement upheld east-west relations as well as north-south ones in ways the protocol undermined. In the context of the political constraints and crisis of last autumn, the concession on consent did bring the protocol sufficiently in line with the Belfast Agreement for the UK to accept it, however unsatisfactory the protocol remained constitutionally, politically and as practical policy.

Now at the implementation stage, both parties are again looking at the protocol through their different lenses. Last month the Government published its approach to implementation; the Commission’s response showed no sign of welcoming a light-touch regime favoured by the UK, stating: “the UK will have to meet all the requirements of the Protocol, rigorously and effectively. That includes putting in place all the necessary checks and controls for goods entering Northern Ireland from Great Britain. That includes applying EU rules on customs and sanitary and phytosanitary protection”.

The strict requirements of the protocol secure the EU’s primary interests, but not those of the UK, so the EU has little incentive to problem solve with the UK to try and realise aims it signed up to but does not really share, or to agree trade offs between these other aims and its core interests. However, there is one factor that alters these dynamics – potentially significantly.

Before the end of 2024 the UK government will provide the opportunity for consent to the continued application of the main economic aspects of the protocol (articles 5-10). Consent will require a simple majority of votes in the assembly. It is assumed that a vote on the continuation of the relevant articles of the protocol will be for no change; this is based on expected party representation after the next assembly election, though this expectation may overstate likely future decline in unionist seats.

The assumption that there will be no vote to change the working of the protocol assumes the question is seen in largely or wholly political and communal terms: a vote against the protocol on principle. However, removing consent to a system because it is damaging economically would not be a matter of political principle and communal allegiance but of mutual and thus cross-communal interest.

A rejection of the relevant economic articles of the protocol would result in an improvement to the working of the protocol, one that would likely command a majority in the assembly; it would not threaten north-south co-operation (excluded from the issues that would be voted on) and could not require a hard border, for which there would be no majority anyway. Addressing the faults of a cumbersome and expensive protocol would benefit Northern Ireland: it would, however, be a loss for the Commission.

The point of the consent principle in the protocol is not only that one day the voice of the people of Northern Ireland will be heard; it is that because this is the case, their voice and interests will be taken into account from the very beginning – from the design stage itself: i.e. now. In the light of this, the EU’s incentive to make a deal that works for everyone and balances the full aims of the protocol is far greater. The EU is no longer the final judge on the acceptability of the protocol.

The question that faces the Commission therefore, is how it can ensure that the operation of the protocol is not overly detrimental to the economic interests of the people of Northern Ireland, thus risking its rejection by democratic vote in just over four years. That is likely to be the cost of a heavy-handed approach to implementing the protocol.

The EU needs to change its thinking from a maximalist approach focused on its limited interests to a more balanced approach that allows trade offs between rigorous application of the Union Customs Code and the economic interests of Northern Ireland. A maximalist approach is not needed to secure core EU interests and a more flexible and innovative approach is needed to manage the trade offs – and these do need managing.

There is plenty of scope to apply exemptions to the strict application of checks and customs duties. For instance, Article 5 of the protocol, on movement of goods, provides that goods that are not at risk of entering the single market will not pay customs duties; there are no practical grounds for strict application of the Union Customs Code to apply to such goods.

Retail shipments bound for the high streets and shopping centres of Northern Ireland would fall within this “not at risk” category, thus preventing hikes in the cost of weekly shopping that would affect people across Northern Ireland. A decision on this is required before the end of the transition period, December 31: it should be made now.

Goods subject to commercial processing cannot be designated “not at risk” of single market entry. Getting the necessary checks and controls undertaken as lightly and swiftly as possible for these goods is a problem that still needs to be solved and agreed but the incentive to do so has not really been there for the EU. Long-established supply chains could have special status and arrangements based on such trusted trading could allow the minimal paperwork.

Consent was not a sop to allow the UK to swallow the protocol whole: it introduced democracy into the working of the protocol and so made it accountable to the people, not just the EU. This change should affect the approach the Commission takes to getting the protocol implemented; like the UK, it now needs a protocol that works with the least hindrance to east-west trade. Failure to get this right risks rejection of the protocol in four years and its replacement with a lighter-touch regime. The EU should work to achieve that regime now.

One of the conditions the EU has set for an agreement on a UK-EU future relationship is respect for democracy. We will see how serious the Commission is about that in the weeks ahead. Michel Barnier warned that there were costs to Brexit for Northern Ireland; there are also costs of democracy for the Commission.