The elections and the Protocol. A United Ireland is no nearer, but Northern Ireland is more unstable.

10 May

Every so often, something happens in Northern Ireland which compels mainland commentators who normally pay the Province no attention to venture a take on its politics. This is unfortunate.

Sinn Fein emerging from last week’s Stormont elections as the largest party in the Assembly is just such an occasion, and has given rise to some truly woeful contributions to the discourse. For example, here’s Piers Morgan:

The main thing this tweet tells us is that prominent amongst the people who do not “fully understand the consequences of Sinn Fein’s success” stands Morgan himself.

But his is merely a lamentably high-profile instance of a common mistake, and it’s a mistake which is not only fundamentally wrong but if anything makes the actual situation in Northern Ireland worse than it needs to be.

With Ulster looking set to remain in the headlines for some time – at least until the hot-take flying column gets bored and moves on – let’s take a look at what actually happened and what the possible implications are.

The results

There is no doubt that Sinn Fein emerging as the largest party in Stormont is a significant moment that will provide a real stress-test of the institutions which have intermittently governed (or at least, presided over) Northern Ireland for the past quarter-century.

But in terms of the actual election, the picture is not what one might expect from excitable headlines. The republicans went into the election with 27 seats and came out with… 27 seats.

Meanwhile the SDLP, the smaller party for voters who like their nationalism unconnected to terrorism, lost four seats and returned only eight MLAs.

That’s an overall loss of four for officially nationalist parties and an overall count 35 MLAs.

(People Before Profit, who designate as ‘Other’ but favour merging with the Republic, held their one.)

On the Unionist side, the Democratic Unionists lost three seats, slipping from 28 to 25. The Ulster Unionists lost one to return nine MLAs, the Traditional Unionist Voice kept their one, two Independent Unionists were returned, and one ex-DUP MLA was returned as a third Independent Unionist.

That’s an overall loss of three seats, and a caucus of 38 MLAs. Which, whilst not great, is still bigger.

So why does Sinn Fein get to nominate the First Minister?

Under the original terms of the Belfast Agreement (which is hallowed except when it’s not), they wouldn’t: that privilege went to the largest designation, Unionist or Nationalist.

However, in 2007 the DUP and Sinn Fein conspired to stitch up the Province’s electoral system, and Peter Hain, then the Northern Irish Secretary, allowed them to do it. They did this by changing the rules in the St Andrews Agreement so that the privilege fell to the largest party.

This meant that instead of voters being able to safely choose between different Unionist and Nationalist options without undermining their own team, as it were, it was suddenly imperative to pile in behind the biggest parties to keep the other lot away from the (purely symbolic) post of First Minister. The UUP and SDLP have predictably suffered since.

Will there be a new Executive?

Under the power-sharing provisions laid down in the Belfast Agreement, both sides need to agree to serve for the devolved government to function. This is why Stormont falls over so often.

At present, the DUP have indicated that they are open to nominating a Deputy (in reality, co-) First Minister… but only if the Government delivers real movement on the Protocol. Which the Government has not yet shown much sign of doing.

The Protocol strikes at the heart of the promises underpinning the Belfast Agreement because, in the eyes of most unionists (even those more inclined to ‘make it work’), it has changed Northern Ireland’s constitutional status vis-à-vis the rest of the United Kingdom, not least by overruling the Act of Union, without a referendum.

It’s proper operation would also have the effect of forcibly re-orienting the Province’s economy away from Britain towards Ireland and the European Union, a fact Michael Gove all but conceded in the Commons. It is worth remembering that the current backlash and instability would be much worse had the Government not subsequently acted to unilaterally extend ‘grace periods’ which protect east/west trade.

This has the potential to be a much more dangerous crisis for Stormont than previous ones because this time, the recalcitrants aren’t holding out for something a unwise Secretary of State looking for good photos and cheap headlines (the witless Hain, et al) can simply hand them in return for a quiet life – at least not without controversial legislation.

Without that change, either the DUP backs down or the Executive stays shut.

What happens then?

Nothing much, at first. Westminster does not take its duty to provide order and good government (as opposed to merely peace) to its citizens in Northern Ireland especially seriously, and in recent times has striven very hard to avoid having to govern the place if it can possibly help it, even if no other government is available.

Under changes negotiated during Julian Smith’s stint at the Northern Ireland Office, the previous Executive will simply stagger on for some weeks (although unless the DUP agree to go back into it, it can’t actually do all that much). When that clock eventually runs out, there will be another election.

If that doesn’t change anything, then at some point the Government will have to implement direct rule, whereby the Province is basically administered by the Secretary of State and the NIO. This would require legislation at Westminster to implement.

So does any of this mean a ‘united Ireland’ is imminent?

No.

In fact, suggesting it does both betrays a fundamental misunderstanding of the Belfast Agreement and, if amplified by foghorns as loud as Morgan, actually undermines the proper function of the devolved settlement in Ulster.

First, one of the consequences of the Agreement is that the constitutional status of Northern Ireland no longer hangs on election results. The Secretary of State will only authorise a referendum if they believe there is clear and consistent evidence the nationalists would win. (There is no such evidence as yet, not even close.)

The parties I dub ‘capital-U Unionist’ have not adapted to this reality, with the DUP in particular having lapsed into a stagnant offer aimed at mobilising their base.

Lacking a compelling alternative in the UUP, more and more broadly pro-UK voters have either stayed at home or, more recently, switched in droves to the Alliance Party, which is formally neutral on the constitution but whose electoral strength in the east of Northern Ireland betrays its liberal unionist roots.

As recently as the 2016 election, the Unionist bloc stood at 55 seats (DUP 38, UUP 16, TUV one) versus a Nationalist bloc of 40 (SF 28, SDLP 12). The makeup of the electorate hasn’t changed fundamentally since then, nor is there been a big swing towards support for ending the Union.

What has happened is that Sinn Fein have done a good job of consolidating their hold on the Nationalist vote, whilst the DUP have alienated a lot of Unionist voters. Where have they gone? In 2016 the Alliance returned eight MLAs; last week it was 17.

This is a healthy development. The keep-them-out politics fostered by St Andrews is toxic, and voters need to feel more comfortable switching parties if Northern Ireland is ever to have a better politics. Politicians on both sides also need to be able to work with the other on day-to-day governance issues without worrying that they’re somehow betraying the cause.

Which is why when clueless commentators declare that this result represents a big step towards breaking up the United Kingdom, they are not just wrong but directly abetting the most regressive elements of Northern Irish politics.

So stop it, please.

Daniel Hannan: No, the Government has not abandoned the rule of law

26 Apr

Lord Hannan of Kingsclere is a Conservative peer, writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

My friend David Gauke wrote a provocative essay for ConHome on Monday. He began with the uncontentious assertion that “the rule of law is central to what we are about as a country.”

He then went on to argue that “this Government has a problem with the rule of law,” citing three examples of its supposedly cavalier attitude: Partygate, the Northern Ireland Protocol, and the Rwanda asylum plan.

I’ll come to the three charges in a moment. But first, I hope we can all agree with the Gawkster’s opening proposition.

Central to the identity of the United Kingdom is that it is (to quote the seventeenth-century radical James Harrington) “an Empire of Laws, and not of Men”. The people in charge don’t get to make up the rules as they go along. Laws are general, equal and certain.

That principle guarantees our liberty because it ensures, as John Locke put it, that we are “not subject to the inconstant, uncertain, unknown, arbitrary will of another man.”

The rule of law is what distinguishes free societies from despotisms. It is arguably Britain’s greatest export, our chief contribution to the happiness of mankind.

For precisely that reason, almost no one admits to being against the idea. When governments bend the rules in their own favour, they naturally claim that they are acting in accordance with the letter and the spirit of the law.

Gaukie is quite right, then, to put each case under the microscope. A country needs constantly to interrogate itself, to invigilate its standards, to hold its leaders accountable.

So let’s do precisely that, starting with the Partygate affair.

We keep hearing that it is an example of “one rule for them [i.e. politicians] and one rule for everyone else”. But endlessly repeating that accusation does not make it true. There is no evidence that the Prime Minister or senior civil servants have been more leniently treated than others in their position. Quite the contrary.

How many keyworkers have been fined for having a drink in the office? How many nurses, for example, have been prosecuted for sharing pictures of themselves with cakes, or uploading TikTok routines?

To the best of my knowledge, none. And quite right, too. It would have been preposterous to charge a group of workers who were already sharing indoor space under rules designed to reduce unnecessary meetings – let alone two years after the event.

To complain about people being separated from sick or dying relatives strikes me as fundamentally dishonest. There were indeed harsh rules in place – rules which I condemned at the time, unlike many of those who now shed crocodile tears about their effect

But those rules applied as much to Boris Johnson as to the rest of us. He went unvisited when he was in hospital. He could not spend time with his mother (who died not long afterwards).

The fair comparison is with what other keyworkers did while at their offices. On that basis, if it really was “one rule for Boris”, it was in precisely the opposite way from that which his critics intend.

On the Northern Ireland Protocol, things are more complicated. The Government has an overriding duty to uphold the Belfast Agreement, which depends upon power-sharing. If the Protocol remains unmodified, that deal will collapse, because Unionists will not agree to serve in a devolved government.

The two treaties pull in opposite directions and, if the tension becomes too much, the Government will have no choice but to give priority to the Belfast Agreement, which has been the basis of peace in Northern Ireland for a generation.

Yet it is not clear that dropping parts of the Protocol would amount to abandoning the rule of law. As Peter Lilley argued not long ago on this website, the Protocol was always intended to be temporary, and contains provisions for its own replacement.

It would not be the first treaty to lapse or to be overtaken by events. Where now is the 1729 Treaty of Seville, the 1836 Anglo-Egyptian Treaty, or the 1907 Pact of Cartagena? When an accord is overtaken by events, or repudiated by one of the signatories, the rule of law does not collapse.

Ireland, for example, abandoned the 1921 Anglo-Irish Treaty in stages, cutting its residual constitutional links to the UK, declaring itself a republic and leaving the Commonwealth. Did that mean the end of the rule of law in Ireland? No. It was accepted that a treaty signed under duress had ceased to be valid.

As far as the Rwanda plan goes, we don’t yet have full details. But there is nothing wrong, in the face of it, with two countries reaching an agreement on the processing of asylum claims.

Nor is there any obvious human rights violation. Whereas an immigrant aims to get into a particular country (and I am in favour of immigration into the UK), a refugee aims to get out of a particular country.

As long as asylum-seekers do not face persecution or oppression in Rwanda – and, for all the low-level racism now being aimed at that country by Leftists, no one has shown that they would – they might as well secure sanctuary there as anywhere else.

Yes, we should not be watching carefully. It is human nature to care more about outcome than process. We need only look at the United States to see how easily a law-based republic can start to treat elections as contingent, something to be challenged automatically by the losing party.

But, precisely because we live in a world where the rule of law is fragile, where democracies decay into dictatorships, where armies cross borders in anger, we need to keep a sense of proportion.

Britain remains one of the good countries. When Ukrainians say that they want to break with their past and live in a normal country, it is our model – or something very close to it – that they have in mind. Let’s not devalue what we have.

Peter Lilley: The Protocol. Mutual enforcement of the law can ensure goods are EU/UK compliant without border checks.

12 Feb

Lord Lilley is a former Secretary of State for Trade & Industy and for Social Security.

Critics assume that there is no alternative to the Protocol which would avoid hard borders between NI and both the Republic and GB while protecting the integrity of the EU market. But there is an alternative.

Insofar as the Protocol is intended to protect the EU internal market from non-compliant goods, it is a hammer to crack a nut. It subjects all goods circulating in Northern Ireland and entering NI from GB to the entire panoply of single market laws, regulations and validations. The Protocol has 73 pages just the titles of EU laws which it wants to apply in Northern Ireland or on goods entering from GB.

Yet the EU’s only legitimate concern is with that tiny fraction of goods which are first, actually exported from NI to the Republic (these constitute just 0.2 per cent of EU trade) and second – within that tiny amount – only that tiny fraction of goods for which UK standards in future diverge from those of the EU or fall foul of EU rules of origin. Currently – when many EU rules have not yet been applied – the EU has not reported a single instance of goods crossing the border which have been a threat to their consumers or producers.

The obvious solution is to make it an offence in UK law to export goods from Northern Ireland to the Republic which do not conform to EU rules, regulations and standards.

This would not require checks at the border any more than border checks have ever been required to police the 20 per cent difference in VAT rates between zero-rated goods exported to the Republic and those sold within NI. Companies were required, even when we were still in the EU, to record all exports to the EU on the “Europe List” in their VAT returns. Those lists would themselves provide evidence of what goods are being exported. In the event of suspicions about their compliance with EU standards the goods could be checked. But such checks would be made at the company’s premises, not at the border.

The EU would not depend solely on the UK authorities enforcing the requirement that goods exported from the UK comply with EU regulations. The EU would itself be able to prosecute in the UK courts any suppliers whose goods had been identified as non-compliant by its trading standards officers, customers or competitors (who have a strong interest in reporting non-compliance).

This approach is commonly called “mutual enforcement”, since it is usually assumed that it would require reciprocity. In principle, reciprocity would be desirable. That is, the EU/Republic of Ireland should likewise make it an offense to export goods into Northern Ireland which do not comply with UK regulations and standards. But reciprocity is not essential. In the event of the UK taking action under Article 16 or resiling from the Protocol, it would be sensible, and show good will, unilaterally to make it an offense to export non-compliant goods to the Republic/EU even if the EU chose not to reciprocate. That would reduce any excuse for “rebalancing measures”.

If the EU declined to reciprocate, the UK could still protect its own market – without border controls – from any EU goods that did not meet our standards (of which there will be very few). After all, HMRC was confident that they did not need border controls “under any circumstances” – including had there been no free trade agreement, in which case differential tariffs would have applied to many products. Given the Trade and Cooperation Agreement eliminates all tariffs on goods from the EU, HMRC’s task would be far easier.

Peter Lilley: How the UK came to accept the Protocol

11 Feb

Lord Lilley is a former Secretary of State for Trade & Industy and for Social Security.

Henry Hill: Labour should rethink its lamentable attitude towards Northern Ireland

25 Nov

Louise Haigh’s comments that the Labour Party would be neutral in any future border poll on the status of Northern Ireland are not surprising. In fact, they reflect some improvement over her party’s historic position.

Prior to the negotiation of the Belfast Agreement, there was a considerable body of opinion on the Labour benches that actively supported Irish nationalism’s claim on British territory, and Harold Wilson once considered an ‘Algerian solution’ of complete, unilateral withdrawal from the Province. Its parliamentary alliance with the Social Democratic & Labour Party (SDLP), the constitutional nationalists, is an artefact of this historic stance.

However, it is the nature of progressive politics that a position that was a big step forwards a generation ago becomes backwards over time, and that is certainly true here.

Take that link with the SDLP. Labour use it to justify refusing to run candidates in Northern Ireland. This deprives voters there of the opportunity to pass judgement on one of the two parties ever likely to form a national government at Westminster, as well as depriving them of a moderate, centre-left pro-UK option at the ballot box.

In fact, for a long time Labour refused even to let residents of Ulster join as members, even as it banked the cash from the political levy paid by trades unionists there. It eventually took a defeat at court to end the ban, prior to which Labour HQ had directed would-be members, many of whom favoured Northern Ireland’s link with Great Britain, to join the separatist SDLP instead.

Even if Sir Keir Starmer refuses to do this, he should be much more careful about Haigh’s apparent attempt to conflate Labour’s political preference for neutrality with a Belfast Agreement obligation. It is no such thing.

Under the terms of that treaty, in the event of a border poll the Government is of course required to oversee the plebiscite in an impartial manner. That is not the same thing as a requirement on British political parties and activists from the mainland being banned from supporting their compatriots across the water during the campaign.

As for Sir John Major’s famous remarks about the UK having “no selfish or strategic interest” in Northern Ireland, it should go without saying that this does not preclude taking an unselfish, fraternal, and patriotic interest in Ulster’s place in the Union, which is every unionists’ duty.

Welsh Labour form alliance with Plaid Cymru

When pro-UK commentators and analysts are minded to defend Welsh Labour’s lamentable record on the national question, it is usually with the claim that Mark Drakeford is simply denying political space to Plaid Cymru.

This argument has never been especially compelling. The electoral strength of the formally separatist party is not the sole measure of the fortunes of Welsh nationalism. One must be quite credulous, or simply not paying attention, to hold Mark Drakeford up as a unionist of anything but the most mercenary sort.

But it suffered a hopefully fatal blow this week when the First Minister concluded a formal agreement to bring the Nationalists back into government in Cardiff Bay.

Although the deal stops short of being an actual coalition, more closely resembling the ‘Lib-Lab Pact’ of the late 1970s, it will see Labour and Plaid collaborating to deliver an agreed policy programme that will doubtless reflect both parties’ fixation on finding north-south ‘Welsh’ solutions rather than building links with the rest of the country.

Sturgeon insists she’s staying put

Nicola Sturgeon has attempted to close down speculation about her political future by insisting that she will see out the mandate she won at this year’s Scottish elections.

This would see the First Minister, who has been in post since 2014, remain in office until 2026.

Following the bruising experience of the Alex Salmond scandal, a failure to win an overall majority at Holyrood, flatlining support for independence, and growing fractures within the Scottish National Party, press reports have increasingly turned to the question of whether she might be looking at ‘a life after politics’.

Her retirement would certainly be a blow to the SNP. There isn’t any obvious candidate amongst the Nationalists’ junior ranks who possesses either Sturgeon’s political skill or her connection with voters, which remains a significant plank of the party’s electoral success.

David Frost: The Protocol has begun to damage the thing it was designed to protect. The EU must join us in returning to it.

1 Nov

Lord Frost is Minister of State at the Cabinet Office and former chief negotiator for Brexit.

Policy Exchange has performed a huge public service in publishing today Roderick Crawford’s meticulous analysis of the so-called “Joint Report” of December 2017.

He has written a piercing analysis which, for as long as the issues raised by the Protocol on Ireland / Northern Ireland are not yet settled, will be of more than purely historical interest.

I may differ from Roderick on a few points of detail, but not on the overall assessment: that the Joint Report, so-called because it was an agreed document between the UK and the EU, is arguably the text that has done most to shape the terms of this country’s exit from the European Union.

As Special Adviser to Boris Johnson when Foreign Secretary, I was a close observer, rather than a participant, during the period covered by this document. I nevertheless have acute memories of it. As the Report circulated within government that December, it was immediately clear to us that a crucial pass had been sold in agreeing — unless an alternative was agreed with the EU, which it clearly would not be — to “maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement” (paragraph 49 of the Joint Report).

Although efforts were made internally to persuade us that “alignment” really meant “equivalence” or “approximation”, we could see that that was not so, and that the effect of this commitment would be to keep the UK in the customs union and much of the single market and thus to destroy the prospect of a meaningful Brexit. This indeed turned out to be the outcome in the initial version of the Protocol from November 2018, via the famous “backstop”, an agreement which Parliament consistently refused to approve.

As I fielded furious calls from Brexiteers that December week, I had two thoughts in my mind. First, “if I resign over this, how will I ever explain what it is all about?” That was a valid question at that point. When all the politics were about how we got over the “sufficient progress” threshold to further talks, this point on Northern Ireland would seem to many like a technicality. By July 2018, this was no longer the case. The linkage between Ireland, the fanciful “Chequers” proposals, and the inexorable logic on which the then Government was embarked was all too clear. It has been with us ever since.

My second thought was “how did we ever come to agree to this?” We now know, from Irish and other EU sources, that the EU was asking itself the same question. Close observers could see that the North-South dimensions of the Belfast Agreement had been prioritised over its other dimensions, that the Report would not command any support from the unionist community, and that the British Government’s agreement to these provisions was wholly unexpected.

My answer is three-fold. First, we had drifted into accepting the EU’s view that the only way to ensure no “hard border, including any physical infrastructure or related checks and controls” (para 43 of the Joint Report) was for the laws on either side of the border to be identical. This ignored the fact that there already was, and is, an international border, an open one, with different currency systems, laws, taxation, and many trading rules on either side.

Second, I do not think we had made the necessary mental shift from being a member of the EU to negotiating exit from the EU. While Olly Robbins was doing his level best to negotiate exit, UK diplomats were trying to participate in EU institutions as if we were a normal member state. Our collaborative instincts from 45 years of membership meant that we were too slow to adopt a robust enough negotiating position. It is very clear that the EU did not make the same mistake, and it was explicitly to reset this psychology on our side too that we withdrew UK diplomats from most EU meetings from August 2019.

Third, it is only fair to point to the extreme weakness of the UK Government after the June 2017 election, both in Parliament and in the lack of consensus amongst its key members about how and perhaps even whether we should be exiting the EU at all. The criticisms made of the Joint Report must be tempered by the difficult circumstances in which the negotiators found themselves, compounded as they were by the EU’s desire to maximise their leverage on Northern Ireland.

When Johnson returned, as Prime Minister, in July 2019, and I returned as Chief Negotiator for Brexit, we inherited that Parliamentary weakness too. Nevertheless we were able to re-establish a clear purpose for the Government and to reset the balance on two crucial points, set out in the Prime Minister’s letter to Donald Tusk of August 19. The first was an unequivocal commitment to the Belfast Agreement and a clear statement that the backstop risked undermining the “delicate balance” between its three overlocking strands. The second was an explicit disavowal of the commitment to “alignment” in paragraph 49 of the Joint Report.

Despite this, in the short window of the next two months, we inevitably still operated within the intellectual and political framework set by the Joint Report. Our negotiating leverage had been cut away by the Benn-Burt Act, which made it impossible for us to leave the EU without a deal, and there was even an increasing worry that it might turn out to be impossible to deliver on the referendum result at all. Nevertheless we got a deal that took the whole of the UK, including Northern Ireland, out of the EU. The deal restored genuine agency to us for the future, by removing the backstop, which would have locked the whole country in the customs union and much of the single market and given the EU the key.

But we could not in the end escape the EU’s insistence on imposing its customs and goods rules in Northern Ireland. The best we could do was include mitigations and balances in the new Protocol — and, crucially, given all these uncertainties and political novelties, insert the principle that the functioning of the Protocol beyond 2024 required the explicit consent of the Northern Ireland Assembly.

We knew, as did the Irish Government, that this new Protocol would require immensely sensitive handling. We understood that the East-West dimensions of the Northern Irish economy are in any circumstances vastly more important than its “all island” dimensions — and that the former not the latter were the economic lifeblood of the province. We knew, as some in the Irish Government would privately concede, that the balance between the three strands of the Belfast (Good Friday) Agreement had been upset by the approach taken in the Joint Report; and that the risk was that the EU’s approach to the Protocol would not be consistent with the explicit commitment to protect the Agreement, in all its dimensions.

Unfortunately the operation of the Protocol has not been adapted to these underpinning realities. It has begun to damage the thing it was designed to protect — the Belfast (Good Friday) Agreement. The insistence of the EU on treating these arrangements as like any other part of its customs and single market rules, without regard to the huge political, economic, and identity sensitivities involved, has destroyed cross-community consent well before the four-year mark.

We also have the lived experience of aspects that are simply unsustainable in the long-term for any Government responsible for the lives of its citizens — like having to negotiate with a third party about the distribution of medicines within the NHS. That is why we must return to the Protocol and deliver a more robust, and more balanced, outcome than we could in 2019. I hope the EU will in the end join us in that. And in so doing we will, I hope, finally move beyond the intellectual framing that Crawford so ably describes.

Henry Hill: The SNP wrong to claim the Belfast Agreement is a template for Scotland

21 Oct

Earlier this week, the Times reported that Angus Robertson, the Scottish Government’s cabinet member for the constitution, wants to use the precedent set by the Belfast Agreement as justification for a second referendum on Scottish independence.

He argues that the Government should permit such a vote this year because it has been seven years since 2014, and that is the minimum time between border polls set out in the 1998 treaty. He further argues that the Scottish people have demonstrated what the paper terms “a clear mandate for independence” by giving such strong support to the SNP.

Suffice to say, this case is specious.

For starters, the seven-year period is the minimum allowed under the Belfast Agreement. Whilst there is an expectation amongst many nationalists that should the first ever be held, any subsequent will follow at seven-year intervals, there is no entitlement to a regular re-run of what would be an extraordinary high-stakes and divisive event.

Next, even the Agreement affords the Government huge leeway when it comes to authorising such a poll. The terms are not just that a majority of voters show support for holding a referendum, but that there is sustained support which suggests the separatists will win it. The criteria of this are not spelled out in detail, giving the Secretary of State huge discretion.

Scotland qualifies on neither count. There has been no evidence of sustained majority support for independence, nor even an imminent re-run of the vote. Efforts to dragoon the entire SNP vote behind separation fall foul of the assurances Nationalist leaders offered wavering voters ahead of the Scottish elections. Not that the terms of a flawed peace deal, negotiated with terrorists in extraordinary circumstances, apply to Scotland at all.

(As for Robertson’s comment about the United Kingdom being a “voluntary union”, in constitutional terms this simply isn’t the case. The decision to grant a referendum on leaving rests entirely with the central government.)

Last week, I wrote about now the Nationalists’ tactics and rhetoric show that they clearly feel the clock is ticking. They haven’t worked out a way to force a referendum onto a UK Government prepared to actually stand up to them, and their movement is under increasing strain on several different fault lines. Arguments such as Robertson’s, and their new tactic of hosing Scotland with pro-independence “junk mail”, seem to be more about keeping disaffected activists believing they have momentum than actually securing a vote.

For their part, the Government would be well-advised to steer clear of the whole thing and not give the argument the oxygen of publicity. Given that their intention is not to grant a referendum, there is no upside to engaging in a public debate about the mechanics of delivering one. (This is also why the Scottish Secretary should stop putting numbers on the level of support he thinks independence needs in the polls to justify another vote, it’s all downside.)

Daniel Hannan: Lord Frost’s speech yesterday exposed the staggering petulance of Britain’s Euro-zealots

13 Oct

Lord Hannan of Kingsclere is a Conservative peer, writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

“Well, you signed it!”

That, pretty much, is the entirety of the case against the Government over the Northern Ireland Protocol. Ministers and officials keep patiently proposing ways in which the EU’s stated objectives could be met without disrupting Ulster’s economy and unsettling her politics.

“Yeah, well you signed it!”

David Frost and his team point to the harms: the extra costs loaded onto businesses, the trade diversion, the scheduled banning even of medicines.

“Should’ve thought of that before!”

They explain that the application is disproportionate. That there is no way that the EU actually needs to carry out 20 per cent of its external checks on 0.5 per cent of its trade. That there is plainly more going on here than a desire to check what might enter Co Cavan. That Brussels’ insistence on rabies shots for pets was not, by any stretch of the imagination, necessary or proportionate.

“Didn’t you read it before you signed?”

They draw attention to the political implications. They recall that the peace settlement in Northern Ireland rests on two pillars: first, an understanding that nothing important will be done with the support of only one of the two communities; second, a promise that there will be no change in the constitutional status of the Province except by a vote of its own inhabitants.

Yet all three Unionist parties are campaigning against the Protocol, and the surviving author of the Belfast Agreement, David Trimble, says the Protocol breaches its terms.

“Bet they’re feeling silly about backing Brexit now, eh, Unionist numpties!”

Frost’s team asks whether the EU is acting in good faith when it is so obviously trying to make life difficult. Its aim – stated publicly and repeatedly – is to force Britain into accepting its agrifoods regulations, so that we can’t buy beef from Australia rather than France or Ireland. Is this really a reasonable position?

“Well, you signed it!”

This has been the response, not just of online #FBPE maniacs, but of Europhile columnists, Irish politicians, Labour and LibDem front-benchers and, not least, EU negotiators. The reaction to Lord Frost’s temperate well-reasoned speech in Lisbon yesterday was a case in point. Rather than disagreeing with anything he had said, his opponents fell back on their favourite yah-boo attack line.

“The same minister who, just months ago, was trumpeting the Government’s botched Brexit deal now says it’s intolerable and has to be changed,” said Alistair Carmichael for the Lib Dems.

Yup, agreed Labour’s Jenny Chapman, it was “the agreement he negotiated – and the prime minister signed – just two years ago.”

“The absolute state of David Frost trashing the deal he negotiated + hailed as a triumph,” Tweeted Gavin Barwell.

“It is a fact that Lord Frost negotiated the protocol, agreed to its terms and backed Boris Johnson’s campaign to sell it during the last general election,” said Matthew O’Toole for the SDLP, just in case we had missed the point.

OK, guys, we get it. But your argument is enormously telling in two ways.

First, it exposes a total lack of interest in addressing the problems. Even now, more than five years after the referendum, Eurocrats are chiefly interested in teaching us a lesson. They want there to be a visible price for Brexit, and if that price is an economic and political crisis in Northern Ireland, tant pis.

That much, perhaps, is not entirely surprising. There were always Euro-zealots for whom Brexit was an act of sacrilege that called for chastisement. What is surprising – or at least would have been five years ago – is that a section of the British commentariat was so unbalanced by the referendum result that it now automatically sides with the EU, however petulant, self-contradictory or unreasonable its position.

No one in Northern Ireland is pro-Protocol. My parliamentary select committee has been taking evidence for months. We have heard from Leavers and Remainers, Unionists and nationalists, Leftists and Rightists. Some oppose the Protocol on principle, some see it as the price of Brexit. But no one – no one – actively likes it.

Yet, while the British government is actively seeking to address local concerns in ways that will avoid a hard border and give the EU the guarantees it says it needs, its opponents are still playing games of the well-who’s-sorry-now kind.

That reaction is telling in another way. “You signed it” is a far weaker argument than its exponents seem to realise.

Most treaties are now defunct. Either they lapsed, or they were renounced by one party or the other, or they were overtaken by events. Where, now, is the Triple Alliance? Where is the 1914 Bryan-Chamorro Treaty, giving the United States first refusal on any canal built across Nicaragua? Where is the 1936 Anglo-Egyptian Treaty, guaranteeing a British military presence at the Suez Canal? Where is the Warsaw Pact?

Imagine a list of every international accord, going back to the Peace of Callias between the Delian League and Achaemenid Persia in the fifth century BC. How many of them are still in force? One per cent? Less?

Consider an example that seems apt given its subject matter, and given the fact of this being its centenary year. The Anglo-Irish Treaty of 1921, which recognised Irish independence, came with a number of conditions, including an oath of loyalty to the monarch, continuing British access to three ports and much else.

Once independence had been secured, successive Irish governments progressively dismantled those conditions, breaking their residual constitutional links with the UK, leaving the Commonwealth and declaring a republic.

Britain, for what it’s worth, reacted with equanimity. When the final rupture was made in 1949, George VI sent a warm message to the Irish President:

“I hold in most grateful memory the services and sacrifices of the men and women of your country who rendered gallant assistance to our cause in the recent war and who made a notable contribution to our victories. I pray that every blessing may be with you today and in the future.”

The EU is unlikely to be so affable. But the argument that Ireland used was a familiar one, namely that it had signed a treaty under duress, sought to make it work, found it intolerable, and so was abandoning it.

Obviously, Britain did not fight a war to get out of the EU. But there is no way that it would have agreed to the Northern Ireland Protocol had not a majority of MPs been working with Brussels to sabotage Brexit. The Protocol was the product of the Benn Act. Indeed, it was only after Theresa May lost the 2017 election that the EU proposed the outrageous idea that the UK should surrender jurisdiction over part of its territory.

As Frostie put it in Lisbon, it was agreed during “a moment of EU overreach when the UK’s negotiating hand was tied” – a point that no one has seriously disputed. Which makes it rather rich for those MPs who were doing the hand-tying in 2019 to complain now.

Could Britain simply annul parts of the Protocol, as Ireland did with the 1921 treaty? Yes – and it should. Triggering Article 16 is an inadequate solution, leaving many objectionable arrangements in place. It is a measure of the loopiness of Brussels negotiators and, even more, of their British cheerleaders, that making use of a treaty clause agreed to by the EU and intended for precisely such circumstances as now is howled down as a breach of faith.

If the EU is threatening retaliation over a measure foreseen in the Protocol – a measure invoked by the EU in February from no higher motive than pique at Britain’s vaccination programme – then we might as well be hanged for a sheep as for a lamb, abrogate the whole deal and replace it with something more workable.

Outright repudiation would allow us to put new arrangements in place, proving that there is no need for border infrastructure in Ireland and ensuring that future talks began from that fact. The sooner we act, the better.