Stephen Booth: Why the row about the Northern Ireland Protocol suggests that the EU’s position isn’t quite as strong as it likes to think

17 Sep

Stephen Booth is Head of the Britain in the World Project at Policy Exchange.

It is often said that Brexit is low on the list of the EU’s priorities. That national capitals have not been fully engaged in a process which they have delegated to Michel Barnier and the European Commission. The introduction of the Government’s Internal Market Bill has certainly got the EU’s attention.

The events of the last two weeks have upped the ante, but the two sides continue to talk and a deal between the UK and the EU is still possible, if the political appetite is there.

As I noted in my previous column, the negotiations over a new UK-EU free trade agreement have been locked in a stalemate over fishing and state aid for weeks, and a compromise can only be unlocked by high-level political intervention.

At the same time, a parallel, and up to now seemingly boring, process has been underway to implement the Withdrawal Agreement and the Northern Ireland Protocol. It has long been clear that the UK and the EU have significant disagreements to resolve in the Joint Committee, the forum established under the Withdrawal Agreement empowered to iron out the practical details of the Protocol’s implementation.

In its May 2020 Command Paper on the subject, the UK identified its practical concerns. For example, under the Protocol, Northern Ireland is subject to the Union’s Customs Code, which requires exit summary declarations for goods leaving the area to which the rules apply.

However, the UK’s view is that export or exit summary declarations should not be required for NI to GB trade (since Article 6 of the Protocol states that nothing in the Protocol should prevent NI businesses from having “unfettered access” to the rest of the UK).

Removing this requirement should not be particularly controversial, since Northern Ireland will remain in the UK’s customs territory (as stipulated in Article 4 of the Protocol) and therefore any risk of complaints about the arrangements in terms of international obligations should rest with the UK, rather than the EU.

Another, more significant issue is the status of goods travelling from GB to NI deemed to be “at risk” of entering the EU (and therefore subject to EU tariffs). The Joint Committee is tasked with defining which goods are “at risk” and therefore broadening the scope of goods that would not be subject to tariffs. However, the default is that goods are “at risk”, unless the Joint Committee agrees otherwise.

The powers taken in the Internal Market Bill are advertised as an “insurance policy” to be used in the event of failure to address the UK’s concerns about the Protocol (which include the state aid provisions as well as exit summary declarations) via agreement within the Joint Committee and/or via a free trade agreement. There are reports that the Government plans to use the forthcoming Finance Bill to give itself similar powers with regard to tariffs.

Leaving aside the legalities and the domestic politics for a moment, why might the UK have decided to initiate a row with Brussels now and pre-empt the Joint Committee process? Of course, we cannot divine the precise motivation. Perhaps no deal is now seen as an inevitable, or at least probable, outcome by some in Government? But the logic of the negotiations offers another plausible rationale.

Implementation of the Northern Ireland Protocol and the wider free trade negotiations are theoretically on distinct tracks. While the Withdrawal Agreement committed both parties to seek to negotiate a free trade agreement in good faith, the Protocol comes into effect at the end of the transition period irrespective of any UK-EU trade agreement.

However, it is clear from the way the negotiations have been structured (at the strong insistence of Brussels) that the trade negotiation and the practical functioning of the Protocol are linked, and this gives the EU leverage over the trade negotiations. Since EU negotiators are not obliged to reach compromises in the Joint Committee on the issues causing the UK concern, they are able to hold the process up in order to apply pressure to the UK in the wider trade negotiation. Just because the EU is within its rights to do so, does not mean it should.

What the Government is doing, for better or worse, is to suggest to the EU that its leverage is not quite as strong as it would like to think. Ultimately, under the Protocol it is UK officials and agencies who will be tasked with enforcing EU rules. Realistically speaking, how plausible is it that the UK would do so zealously in a scenario where not only have the UK and the EU failed to reach a trade agreement, but the EU is also insisting on its maximalist interpretation of the Protocol?

The UK might have made this point more subtly if it had made clear that any measures it takes in the future would be strictly consistent with Article 16 of the Protocol, which allows either party to take unilaterally “appropriate safeguards” if the application of the Protocol leads to “serious economic, societal or environmental difficulties”, and its pre-existing commitments under the Good Friday Agreement.

Equally, it should also be noted that the UK is not declining to implement other important aspects of the Protocol. Indeed, as Michael Gove noted in closing Monday’s debate and Brandon Lewis repeated in committee evidence yesterday morning, the UK is erecting border-inspection posts for sanitary and phytosanitary (SPS) checks on goods entering Northern Ireland, which in an ideal world it would not have to and despite the opposition of the DUP.

Ultimately, what this row demonstrates is that a negotiated settlement on the Protocol and the wider trade issues should be preferable for both sides compared to an acrimonious breakdown in the UK-EU relationship. Indeed, the UK legislation introduced this week would be redundant if compromises can be reached.

A Protocol that is politically sustainable is in the EU’s interests. Equally, a UK-EU trade agreement would not remove all of the irritations thrown up by the Protocol but it could certainly help to smooth over some of the important issues. If there are no tariffs between the UK and the EU, there is less risk to the EU of goods entering the Single Market at a lower tariff. If the EU and UK reach agreements on SPS, like the EU has with New Zealand, then paperwork could be simplified. Equally, establishing a UK domestic subsidy regime, recognised by the EU in a free trade agreement, would help prevent the “reach back” of the state aid provisions in the Protocol that are also of concern to the UK.

Only time will tell if this episode is the beginning of the path to a deal or the point when things turned sour.

Garvan Walshe: Breaking the Withdrawal Agreement risks the No Deal Brexit this Government was elected to avoid

10 Sep

Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party.

The trouble with international agreements is that they are, well, international. By this I mean that sovereignty can’t be used as a trump card in the way that parliamentary sovereignty can in most domestic law.

This strongly suggests that the Government’s course of action in seeking, in the disarmingly frank words of Brandon Lewis, “to break international law in a specific and limited way” has not been properly thought through.

The domestic problems with this approach are well known. Any legislation to break international law will run into trouble in the Lords, which will feel entitled to block it, as it was not only absent from the election manifesto, but in fact directly contradicts its promise to implement the Brexit deal sealed in November 2019.

There is also the matter of the ministerial and civil service codes, which forbid the breaking of the law (the removal of the word “international” from the code makes no difference in practice), and are likely also forbid actions openly directed towards that aim.

It is therefore an open question of constitutional law whether legislation to this end, introduced improperly by ministers, and drafted by civil servants would be valid. It is rather clearer that ministers or officials participating in the production of such legislation risk falling within the ambit of the common law offence of misconduct in public office.

But my concern here is international. The foundation of international law has long been that states are sovereign. As well as meaning that they begin with full powers to arrange their internal affairs, it also means they have the power to make agreements with each other. An agreement means that the states accept obligations to each other, which is what makes a treaty different from a state making a unilateral declaration to itself. While a state retains the practical power to break an international agreement, it cannot change the meaning of the agreement on its own.

It is also a consequence of this sovereign power that states are able to revise treaties they make, by mutual agreement, and it is of course often the case that this revision is dictated by power politics, but even that is different from mere reneging on a treaty. Nevertheless, the power of revision is usually held collectively by the states that signed the agreement, not by individual signatories. Some treaties, like indeed the Treaty of European Union provide an exit mechanism (Article 50), but others, like the Withdrawal Agreement, do not.

The Government might have been better placed to argue that it was trying to use its residual sovereign power to seek to renegotiate the Withdrawal Agreement, which it had concluded under the duress of the two-year withdrawal period contained in Article 50.

While that would probably not have gone down well in Brussels, openly seeking to break these particular parts of the withdrawal agreement is rather more challenging, because Michel Barnier’s team built in three levels of safeguards against what it would consider to be “perfidious Albion.”

First, the relevant aspects of the Ireland/Northern Ireland protocol are governed by EU law, interpretable by British courts and, ultimately, European Court of Justice. Because of the way the UK incorporates treaties (including treaties that give effect to legal systems like the EU’s) into its domestic law, sufficiently explicit legislation could probably escape disapplication by UK courts.

But this in itself would be a direct violation of the agreement, which the European Court could be expected punish with a fine. Though the UK could refuse to pay the fine, on the grounds that it was acting according to it own law, this would just trigger the second level of dispute resolution, which is the Joint Committee established to be established under the agreement.

If the Joint Committee cannot resolve the dispute to both sides’ satisfaction, and in this case it is hard to see how it could, the case would be submitted to an arbitration panel at the Permanent Court of Arbitration. Lewis’s declaration that the UK intends to “break international law” is unlikely be helpful to the British case.

Now, the UK may as a sovereign state in practice refuse to abide by the arbitration panel, but in that case the agreement (Article 178, paragraph 1) provides for the panel to “impose a lump sum or penalty payment”.

If the UK refuses to pay that, the subsequent paragraph allows the EU to suspend either parts of the Withdrawal Agreement with the UK, or of other agreements it has. These include agreements on aviation freedoms, equivalence for financial services, “data adequacy” vital to the tech sector, and the right of truck drivers to travel to the EU. This would amount to the “no deal Brexit” that the Prime Minister’s withdrawal agreement, endorsed in the 2019 general election, was supposed to avoid.

Now that the Government does not need the votes of the DUP, it should think carefully about whether it would rather spend the rest of its term engaging in an optional legal fight with the EU, or, having got Brexit done at the end of the year, stick to running the country it was elected to govern.