Henry Hill: Unionists’ court defeat shows scale of the challenge Johnson faces as ‘Minister for the Union’

1 Jul

Last week, I looked at press reports that David Frost had secured what I called a “stay of execution” for east-west supply chains between Great Britain and Northern Ireland.

And indeed, this morning’s papers report that the UK and the EU have agreed a three-month extension to the ‘grace periods’ on foodstuffs being shipped from the mainland to the Province, as well as generally improved relations between the two sides in the negotiations.

So far, so good. However, a three-month extension is not a lasting solution, and there are still plenty of signs that the two sides are a long way from finding one.

EU sources, for example, have been briefing that London has accepted that this latest extension is indeed to allow Northern Irish businesses to establish new, south-facing supply chains, which if true would make the entire standoff pointless. Meanwhile the FT reports that the Prime Minister insists that it is for Brussels to move:

“Johnson said the EU needed to address its interpretation of the protocol and how it related to “the ban on chilled meats, the restriction on the circulation of cancer drugs, and the fact that 20 per cent of all the customs checks carried out in the whole of the EU are carried out in Northern Ireland”.”

Stephen Booth has outlined on this site today how the UK intends to push for a bespoke arrangement, just as several other countries have done.

Meanwhile Unionists will take even less comfort from Boris Johnson’s stern tone than even they might previously after yesterday’s defeat in a Belfast court of the legal challenge to the Protocol. Government lawyers successfully argued that the Withdrawal Act had impliedly repealed Article Six of the Act of Union, which provides for unhindered free trade within the United Kingdom, despite the Prime Minister insisting in the House of Commons that no such thing had taken place.

The result sheds a cold light on skewed legal playing field faced by those trying to defend Northern Ireland’s position in the Union. The judge conceded that the Act of Union is a ‘constitutional statute’, but denied it the immunity from implied repeal that is basically what defines a ‘constitutional statute’. He acknowledged that trade between the two parts of the country was on an unequal footing, but denied that Northern Ireland’s ‘constitutional status’ had changed in any manner relevant to the Belfast Agreement.

I have written before about the dangers of applying the Agreement in a one-sided fashion, and this is another example. Over the past few years, the narrow range of north-south issues protected under the Annex to Strand Two have somehow metastasized into an entitlement to an invisible economic and social border with the Republic of Ireland that is nowhere in the text of the treaty.

Meanwhile the courts are increasingly holding to the Irish nationalists’ line that Ulster’s connections to Great Britain have no such protection, and the Belfast Agreement’s protections for the Province’s status apply only to top-level British sovereignty.

This is not what unionists thought they were signing up to. We know because David Trimble is telling us, although it is no longer fashionable to pay much regard to the Nobel Prize-winning co-architect of the treaty everyone professes to be so concerned about. Given that the Belfast Agreement and the settlement that rests on it only works if it commands the respect of both communities, you’d think it was obvious that weaponising it against one of them is extremely short-sighted.

Instead we have Simon Hoare accusing unionists of trying to ‘shred’ the Agreement… by trying to assert the protections they thought they enjoyed under it.

This strikes a similar tone to that adopted by anonymous EU sources in the Irish press during the negotiations, when they said that Theresa May should “say to the DUP, listen you guys you’ve got nowhere else to go anyway, so this is what’s going to happen”. Basically, Northern Irish unionists should stop making things awkward for Brussels as it tackles the deadly peril to the Single Market posed by illegal British sausages.

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.

Northern Ireland’s place in the UK must be affirmed by deed, as well as by word

2 Jun

Over the past few years, one of the biggest complaints that Northern Irish unionists have had about the British Government is the sense that the Northern Ireland Office is not on their side. They contrast the NIO’s painstaking neutralism with Dublin’s energetic championing if the nationalist interest in the Province.

This has become an especially sore point in the aftermath of the EU referendum, as London ended up getting comprehensively outmanoeuvred over Ulster. Theresa May ended up accepting the need for a ‘backstop’ or Protocol after basically getting memed into an absurdly maximalist interpretation of “our obligations under the Good Friday Agreement”.

It ought to have been the NIO’s responsibility to have the UK Government’s own understanding of its commitments properly articulated and ready to go. They did not, and the result was an abject episode of British diplomacy, the dire consequences of which Lord Frost has been tasked with unpicking.

Fortunately, the Government seems to have realised that the problems created by the Protocol are not simply a matter for its trade negotiators. A border in the Irish Sea strikes directly at Northern Ireland’s position as an equal part of the United Kingdom. Reassurance needs to be offered on multiple fronts.

It is therefore very welcome that Brandon Lewis, the Secretary of State, announced yesterday that the town of Hillsborough is going to become the first in the Province to be awarded ‘Royal status’, in light of its “close ties to the Royal Family”.

Obviously this is only a small thing in itself. But the fine details of life – see also inviting Rangers and Celtic to join the Premier League, or running Great British Railways in national livery – add up. If the Belfast Agreement is to endure as a settlement that respects (and is thus respected by) both communities – and that isn’t certain – the Government must be unafraid to reinforce Northern Ireland’s British status in deed, as well as in word.

There will be those who splutter about “more flags”, just as they did when ministers announced an expanded footprint for UK Government departments or Lewis confirmed they would fly the Union Jack. This is the same sort of thinking that saw litigants try to take Theresa May’s ministry to court over its confidence and supply arrangement with the Democratic Unionist Party, as if the very participation of Northern Irish MPs in a British Government breached an Agreement that explicitly affirms their Britishness.

For too long, the institutional attitude of the NIO seemed to reflect the mindset that has afflicted London’s approach to Ulster since the foundation of Stormont: that it is to be quietly sidelined from the UK’s national life until it inevitably joins the Republic. There has apparently been a belated but determined effort to shift this since the election, with one official allegedly complaining that the Department is now ‘too right-wing and too unionist’ – which is only fitting for a right-wing, unionist Government.

The question is whether this can be sustained. Changing deep-seated attitudes takes a long time, and mainland politicians thrust into Northern Irish posts seem especially prone to capture by groupthink. Even today, when food supplies to the Province have only been maintained by unilateral British action, Simon Hoare – the Chair of the Northern Ireland Select Committee – claims businesses in North Dorset would “bite your hand off” for Ulster’s semi-detached commercial status. It would be a crying shame if all this good would were squandered by a careless reshuffle.

Henry Hill: If Johnson wants to save the Belfast Agreement, he must act to restore unionist confidence in it

8 Apr

Last month, I wrote about what the appointment of Lord Frost signalled with regards to the Government’s intentions over the Northern Ireland Protocol. This week’s loyalist violence shows the importance of Boris Johnson getting this policy right.

The division inside the Government is not between people who like or dislike the Protocol. Nobody likes it.

Rather the divide is between those such as Michael Gove, who believe that the Protocol can be made to work (and has striven to sand off its roughest edges), and the likes of Frost, who don’t. The latter camp maintain that because the Protocol is a ‘living document’ rooted in EU law, it is almost certainly going to metastasise rather than stabilise, and lay a heavier and heavier burden on Ulster’s connections with the mainland.

Of course there is no avoiding the fact that the Prime Minister signed up to it, but the defence offered for that is that after the passage of the Benn Act the Government didn’t have the leverage to get rid of it before leaving the EU. Nor was the mistake his alone.

For all that some commentators like to talk up Theresa May’s alternative approach, in truth the critical mistakes on Northern Ireland – especially allowing Britain’s rhetoric about no return to “the borders of the past” to mutate into a commitment to an invisible Irish border which is not in the Belfast Agreement – were made when she was in office. Ireland and the EU deliberately pushed a maximalist line on Ulster and credulous British ministers swallowed it whole.

The Protocol isn’t the only factor contributing to the violence. The visible refusal of the PSNI to act on blatant lawbreaking by senior Sinn Fein politicians is another. But they are part and parcel of the same trend of unionists and loyalists feeling that the structures and processes of the post-1998 settlement are being stacked against them.

There is no plausible reading of the Belfast Agreement that could offer the nationalist community a right to an invisible border with a neighbouring state but not protect unionists from a visible border inside their country. Yet that is how it has been defined, if not in court then by the political debate around the Protocol. The Agreement is supposed to guarantee Northern Ireland’s British status, yet the Government will not fly the flag there. Some people even thought the Democratic Unionists propping up the May Government – i.e. participating in their national government – a breach of the deal.

As a result, the loyalist paramilitary groups have already withdrawn their support for the deal and there is an increasingly real prospect of political unionism following suit. If the major parties get spooked into collapsing Stormont, it may not come back.

This is a test for both sides. The EU has been keen to talk up the importance of the ‘Good Friday’ Agreement and ‘the peace’ when doing so meant maximally enforcing the EU’s interests. Will it continue to prioritise them if it means going against its perceived interests? It would be a surprise.

But it is even more a test for the Government, because Northern Ireland is British and thus ultimately our responsibility. That means that yes, Johnson needs to back Frost to the hilt if he has a long-term strategy for delivering fundamental changes to the Protocol. But he should not stop there.

As I wrote in the News Letter last week, he should overturn the decision to exclude the Province from the new policy of putting the Union Flag on UK Government buildings and authorise Brandon Lewis to undertake root-and-branch reform at the NIO to get rid of the entrenched neutralist attitudes that rule there. He should also task whoever is in charge of formulating constitutional policy to sit down and develop a proper British vision of the Belfast Agreement and its obligations, to help prevent future generations of lazy and/or uninterested ministers getting memed into terrible decisions by those selling the myths that seem to comprise the ‘Good Friday Agreement’.

For too long, the Government has relied on the old trick of staging interminable rounds of talks and then basically bribing the local parties back into Stormont for a bit. If the Prime Minister wants to save the Belfast Agreement, he must demonstrate to unionists that its guarantees of their British status – including the ability to participate fully in British political and economic life – are real.

Henry Hill: It is past time the Government worked out a British interpretation of the Belfast Agreement

17 Sep

Joe Biden’s latest intervention in the battle over the Government’s controversial Internal Market Bill is a useful reminder of a couple of truths which the Right in this country are prone to forgetting.

The first is that the ‘Special Relationship’, upon which the entire Atlanticist world-view rests, is a fiction. The US does have a unique bond with an island nation off the coast of Europe – but it isn’t this one.

Second, this crisis highlights once again how utterly woeful unionists on both sides of the water have been in developing a proper theory of the Belfast Agreement and selling it to journalists and policymakers either at home or overseas.

What does a ‘theory of the Belfast Agreement’ mean? It means an expansive understanding of what its provisions entail, and even more importantly, what they don’t entail, plus a narrative in which these interpretations make sense.

Over the past four years, both an uninterested UK Government and its unionist allies have been utterly routed when it comes to shaping popular understanding of the ‘Good Friday Agreement’. As a result, even as sincere a unionist as Theresa May ended up accepting that Britain was under a treaty obligation to ensure that absolutely no border infrastructure was necessary between Northern Ireland and the Republic.

This understandably outraged those who recognised how extraordinarily it would be to have an external party impose an internal tariff border on a sovereign nation, and proved the undoing of May’s deal. Boris Johnson then won the leadership with a vow that he would never accept such a thing. But he was no better equipped to challenge the line being peddled by Dublin and Brussels than his predecessor, so he folded. Now his belated efforts to (possibly) un-fold are causing the Government serious difficulty.

At every turn, the weight provided to the Agreement’s offers to each side are completely different. Quite limited references to cross-border cooperation are spun out into vast entitlements, whilst Unionists are fobbed off with the suggestion that having a broad swath of economic policy set from Dublin doesn’t technically change Ulster’s constitutional status. To imagine the Irish nationalist reaction to the same proposal in reverse – Irish policy set by London – is to see what a nonsense that defence is.

It’s not as if a unionist interpretation of the Agreement doesn’t exist – Lee Reynolds, the Director of Policy for the Democratic Unionists, set one out on this site in 2018. But there has been no concerted effort to sell it. The Government has a potential ally in David Trimble, who actually negotiated it, but has failed to give him any prominent role.

Would such a campaign have been a magic bullet? Of course not. The European Union would still have had every incentive to weaponise Northern Irish issues, and the sort of US politician who goes to bat for the IRA doesn’t really care one way or the other what the Agreement does or doesn’t say. But as with the Prime Minister’s attempt to refuse the Scottish Nationalists a second referendum, having a clear and defensible justification for what you’re doing can be the difference between being perceived as an honourable opponent or an untrustworthy chancer.

If the Government really wants to get ahead of the problem with regards to Northern Ireland, it should finally sit down and work out what the British interpretation of the Belfast Agreement is. Better decades late than never.

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.