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.

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.

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.

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.

Henry Hill: Shetland Islands open door to breakaway future as constitutional battle lines are drawn

10 Sep

Shetland explores secession from Scotland…

The phoney war is well and truly over, as this week saw the temperature of the constitutional debate turned up to boiling point on several fronts.

Perhaps most eye-catchingly, the Shetland News reports that the islands’ council has voted to explore ways of gaining self-determination within – or indeed, from – Scotland, in response to more than a decade of ruthless centralisation by the Nationalist administration in Edinburgh.

The Northern Isles have always been devosceptic, wary of getting dominated by an over-mighty Scottish legislature versus a more distant Westminster. This week’s vote was decisive, with councillors splitting in favour of exploring the options by a majority of 18 to 2. Even the SNP’s sole representative supported the motion, although he is wary of it becoming a vehicle for the islands seeking “a relationship with what’s left of the UK after the Scottish independence referendum”.

It should be just that, of course, although the question remains what form that should take. Iain Martin writes at Reaction that crown dependency status would be one of the options explored, but this would leave the Shetland Islands formally outside the UK and without representation at Westminster. The Government should actively engage in finding a better, more integrated alternative.

…as constitutional battle heats up

Beyond that, this week also saw the publication of the Government’s UK Internal Market Bill, and with it the start of a long-overdue pushback against the May Government’s disastrous capitulation on the question of (badly-mislabelled) ‘post-Brexit devolved powers’.

For its part, the Government claims that it felt moved to ‘clarify’ the Withdrawal Agreement after what it took to be veiled threats by the European Union to ban British food exports to Northern Ireland.

Such an outcome is of course entirely unacceptable to a sovereign state which places any value on its territorial integrity – although given that the entire point of an Irish Sea border is that it makes such things possible, ministers do need to explain why this didn’t occur to them previously. For their part, the DUP have offered ‘cautious support’.

This led has led David Melding, the arch-devolutionary member of the Welsh Parliament, to resign from the Tory front bench. In the same week Daran Hill, a high profile ‘Yes’ campaigner in both of the modern Welsh devolution referendums, has joined the Party – a move devosceptics believe is aimed at shoring up official Conservative support for Cardiff Bay in the face of mounting grassroots disaffection.

Whilst it was always very likely that a proper unionist constitutional fightback would alienate devocrats, the Government should be sure to invest time and energy in building the full case that justifies the new strategy if they want to have any hope of winning public support.

This comes as Mark Drakeford, the nationalist (Labour) First Minister of Wales, launched a fierce attack on the proposals and stated that his Party should not stand in the way of a second independence referendum. The Welsh Labour leader was voicing the anger of devocrats that spending and regulatory powers previously vested in Brussels are now, perfectly sensibly, being vested in London. The SNP have also hit out at proposals which will see Westminster directly funding roads, cultural events, and other schemes “for the first time in decades”.

Salmond inquiry puts Sturgeon’s husband in the spotlight

There has been a new twist in the ongoing saga of the Holyrood inquiry into the Scottish Government’s mishandling of complaints against Alex Salmond – one which really puts a spotlight on just how tight-knit the top of the Scottish National Party really is.

Centre stage this week is Peter Murrell, Nicola Sturgeon’s husband, who also holds the role of Chief Executive of the SNP, who this week claimed not to have been told about what several meetings between the First Minister and her predecessor (held at the couple’s own home) were about – despite her having claimed the meetings were in her capacity as SNP leader.

Murrell has reportedly angered MSPs conducting the investigation through ‘disrespectful’ conduct, according to the Times, whilst the Daily Telegraph reports that he denies knowledge of Nationalist ministers using party email addresses instead of official accounts, despite Sturgeon apparently doing so “for years”.

Beyond Murrell, Salmond himself has threatened to take the Scottish Government to court (again) in order to force it to release documents relating to its botched inquiry into allegations against him. Meanwhile Leslie Evans, the embattled Permanent Secretary who is Scotland’s most senior civil servant, has been fending off claims that she is or was ‘at war’ with the former First Minister.

McDonnell defends Leonard as Scottish Labour battle intensifies

Last week, we covered the apparently abortive effort by senior figures in the Scottish Labour MSP group to force out Richard Leonard, their ineffectual and increasingly isolated leader, who is still refusing to step down.

At the time it appeared that the move had failed, but this week the Daily Record reports that Leonard’s opponents believe they have the numbers for a formal leadership challenge. However, allies of the leadership claim that there is in fact no mechanism by which the MSP group can oust their leader, and both sides are now embroiled in a very Labour-ish dispute over the technicalities.

Whilst not of the hard left himself, Leonard is widely viewed as having been close to the national leadership under Jeremy Corbyn, and John McDonnell will have done nothing to challenge this perception when he came to the former’s defence this week. On the other side Rachel Reeves, a member of the current Shadow Cabinet, urged him to consider his position.

The Scottish Labour leader also received some unexpected support from both Tories and Nationalists are Dehenna Davison, the MP for Bishop Auckland, appeared to blame his failings on his English accent.

Op-eds:

  • The fightback to save the Union starts with the Internal Market Bill – Alun Cairns MP, Daily Telegraph
  • The rules of Britain’s internal market should be set by Westminster – Matt Kilcoyne, CapX
  • Dividing the UK – Owen Polley, The Article
  • We’re not nostalgic flag wavers but Tories who see the UK as force for good – Robin Millar MP, Daily Express
  • Unionists must do much more than just deny the SNP their referendum – Henry Hill, CapX

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.

Henry Hill: If Gove and Johnson want to save Britain, they’re going to have to use the word ‘Britain’

30 Jul

Gove digs out Better Together’s greatest hits as Davidson heads to the Lords

Michael Gove has been in Scotland this week, fronting a new push by the Cabinet to raise the Government’s profile north of the border ahead of next year’s Holyrood vote – with a particular focus on the under-35s.

Following polls which suggest that independence is not a priority for the Scottish electorate, the Chancellor of the Duchy of Lancaster has said that he will not be ‘distracted’ by those showing majority support for breaking up Britain.

He has also adopted an identifiable style – perhaps informed by Downing Street polling – which appears to be setting the tone for the pro-UK effort. It includes repeatedly stressing that devolution is not only ‘working’ but, in a phrase dredged up from 2014, offers “the best of both worlds”.

As I wrote for the Daily Telegraph this week, this is a tactical position with huge strategic dangers. The insistence that ‘devolution is working‘ makes it difficult to attack the SNP’s many failures, or to answer the separatists when they pose the simple question of why, if Holyrood is using all these powers so well, should it not have even more?

Worse still, Gove’s article for the Times makes repeated references to the “four nations” and “different nations” of the UK, but doesn’t mention ‘Britain’ or ‘British’ once. It bodes ill for any effort to build an ’emotional case’ for the Union if Cabinet ministers dare not speak the nation’s name.

Ruth Davidson, however, has struck a different note to this softly-softly approach, suggesting that Unionists should have been more combative and “put the boot in” to the SNP in the aftermath of the 2014 vote. This comes as the Press & Journal reports SNP fears that she is being elevated to the Lords to launch high-profile attacks on them (surely a reasonable assumption).

With the Government preparing to face down the Scottish Government over control of the British internal market, and another row brewing over the proposed ‘Shared Prosperity Fund’, the best that can be hoped is that Gove is speaking softly so as not to draw attention to a big, big stick. Or boot.

New parties shaking up the unionist and separatist camps in Scotland

With the possibility of a second independence referendum possibly riding on the results of next year’s Scottish Parliament elections (although it shouldn’t), the stakes are extremely high – and have tempted new entrants into the ring.

In the nationalist corner is the new Alliance for Independence. This has been set up with the express intention of gaming Holyrood’s electoral system by contesting only the list vote, attracting vast numbers of SNP second preferences, and delivering a separatist supermajority next year.

However it has already become a locus for deeper tensions within the independence movement, with Nationalist figures dissatisfied with Nicola Sturgeon’s safety-first strategy rallying to its defence. There are also concerns that it could become a vehicle for Alex Salmond to stage his next comeback.

(On a related note, the Daily Record reports that the Scottish Government is set to miss an important deadline for turning over documents to the inquiry into the debacle with the former First Minister.)

On the pro-UK side, meanwhile, is George Galloway’s Alliance 4 Unity. This is an explicitly ecumenical effort, distinct from his Workers Party GB: he has openly stated that he will work with Tories in the name of defeating the SNP, and attracted candidates from a range of backgrounds to stand under the A4U banner.

Despite that, Galloway’s big opening might be on the left, exploiting the gap in the market created by the moribund Scottish Labour Party (more below) and wooing Lab-Nat switchers tempted by the radical promises of independence supporters.

Crack in DUP unity as Foster spurs rebellion over Stormont changes

A major crack in the discipline of the Democratic Unionist Party appeared this week, when Arlene Foster found herself facing the largest Stormont rebellion in the Party’s history.

The revolt was staged over a controversial bill intended to give increased powers to individual ministers in Northern Ireland’s power-sharing executive, the News Letter reports. The move has been pushed through by the DUP and Sinn Fein, whilst being opposed by the Ulster Unionists.

Senior DUP figures have accused the First Minister of trading away important safeguards secured for Unionism at previous negotiations. Outside observers have also suggested that it will increase the exposure of Executive decisions to legal challenge.

If this comes to pass, it will join the St Andrews Agreement in the line of Stormont fouling itself up with self-directed reform.

BBC urged to drop Sturgeon’s ‘political broadcasts’

The BBC has been urged to stop broadcasting Nicola Sturgeon’s coronavirus press briefings on the basis that she is using them for party political purposes.

According to the HeraldScottish Labour have demanded a meeting with the head of BBC Scotland and claim that the broadcasts are “in breach of the Charter of the BBC”. The Tories have made the same claim – in their case slightly awkwardly, as the Prime Minister is in the process of trying to set up a similar press briefing at Westminster.

Sturgeon has been accused of misrepresenting Scotland’s Covid-19 statistics, and downplaying the scandal in Scottish care homes revealed by the BBC.

Labour veteran calls on Leonard to step down ‘for the Party’

Lord Foulkes has called on Richard Leonard, the leader of the Scottish Labour Party, to step aside ahead of next year’s Scottish Parliament electons, the Daily Record reports.

The peer, a former MP and MSP, suggests that Jackie Baillie, the punchy and relatively right-wing deputy leader, could take over on an interim basis for the 2021 campaign.

Leonard is a left-winger who was a close ally of Jeremy Corbyn. His leadership has seen a fresh waning in the Party’s fortunes, losing all but one of its MPs (again) at the 2019 election and fifth place at the final European elections. Labour are currently bumping along at 15 per cent in the Holyrood polls.

Henry Hill: If Gove and Johnson want to save Britain, they’re going to have to use the word ‘Britain’

30 Jul

Gove digs out Better Together’s greatest hits as Davidson heads to the Lords

Michael Gove has been in Scotland this week, fronting a new push by the Cabinet to raise the Government’s profile north of the border ahead of next year’s Holyrood vote – with a particular focus on the under-35s.

Following polls which suggest that independence is not a priority for the Scottish electorate, the Chancellor of the Duchy of Lancaster has said that he will not be ‘distracted’ by those showing majority support for breaking up Britain.

He has also adopted an identifiable style – perhaps informed by Downing Street polling – which appears to be setting the tone for the pro-UK effort. It includes repeatedly stressing that devolution is not only ‘working’ but, in a phrase dredged up from 2014, offers “the best of both worlds”.

As I wrote for the Daily Telegraph this week, this is a tactical position with huge strategic dangers. The insistence that ‘devolution is working‘ makes it difficult to attack the SNP’s many failures, or to answer the separatists when they pose the simple question of why, if Holyrood is using all these powers so well, should it not have even more?

Worse still, Gove’s article for the Times makes repeated references to the “four nations” and “different nations” of the UK, but doesn’t mention ‘Britain’ or ‘British’ once. It bodes ill for any effort to build an ’emotional case’ for the Union if Cabinet ministers dare not speak the nation’s name.

Ruth Davidson, however, has struck a different note to this softly-softly approach, suggesting that Unionists should have been more combative and “put the boot in” to the SNP in the aftermath of the 2014 vote. This comes as the Press & Journal reports SNP fears that she is being elevated to the Lords to launch high-profile attacks on them (surely a reasonable assumption).

With the Government preparing to face down the Scottish Government over control of the British internal market, and another row brewing over the proposed ‘Shared Prosperity Fund’, the best that can be hoped is that Gove is speaking softly so as not to draw attention to a big, big stick. Or boot.

New parties shaking up the unionist and separatist camps in Scotland

With the possibility of a second independence referendum possibly riding on the results of next year’s Scottish Parliament elections (although it shouldn’t), the stakes are extremely high – and have tempted new entrants into the ring.

In the nationalist corner is the new Alliance for Independence. This has been set up with the express intention of gaming Holyrood’s electoral system by contesting only the list vote, attracting vast numbers of SNP second preferences, and delivering a separatist supermajority next year.

However it has already become a locus for deeper tensions within the independence movement, with Nationalist figures dissatisfied with Nicola Sturgeon’s safety-first strategy rallying to its defence. There are also concerns that it could become a vehicle for Alex Salmond to stage his next comeback.

(On a related note, the Daily Record reports that the Scottish Government is set to miss an important deadline for turning over documents to the inquiry into the debacle with the former First Minister.)

On the pro-UK side, meanwhile, is George Galloway’s Alliance 4 Unity. This is an explicitly ecumenical effort, distinct from his Workers Party GB: he has openly stated that he will work with Tories in the name of defeating the SNP, and attracted candidates from a range of backgrounds to stand under the A4U banner.

Despite that, Galloway’s big opening might be on the left, exploiting the gap in the market created by the moribund Scottish Labour Party (more below) and wooing Lab-Nat switchers tempted by the radical promises of independence supporters.

Crack in DUP unity as Foster spurs rebellion over Stormont changes

A major crack in the discipline of the Democratic Unionist Party appeared this week, when Arlene Foster found herself facing the largest Stormont rebellion in the Party’s history.

The revolt was staged over a controversial bill intended to give increased powers to individual ministers in Northern Ireland’s power-sharing executive, the News Letter reports. The move has been pushed through by the DUP and Sinn Fein, whilst being opposed by the Ulster Unionists.

Senior DUP figures have accused the First Minister of trading away important safeguards secured for Unionism at previous negotiations. Outside observers have also suggested that it will increase the exposure of Executive decisions to legal challenge.

If this comes to pass, it will join the St Andrews Agreement in the line of Stormont fouling itself up with self-directed reform.

BBC urged to drop Sturgeon’s ‘political broadcasts’

The BBC has been urged to stop broadcasting Nicola Sturgeon’s coronavirus press briefings on the basis that she is using them for party political purposes.

According to the HeraldScottish Labour have demanded a meeting with the head of BBC Scotland and claim that the broadcasts are “in breach of the Charter of the BBC”. The Tories have made the same claim – in their case slightly awkwardly, as the Prime Minister is in the process of trying to set up a similar press briefing at Westminster.

Sturgeon has been accused of misrepresenting Scotland’s Covid-19 statistics, and downplaying the scandal in Scottish care homes revealed by the BBC.

Labour veteran calls on Leonard to step down ‘for the Party’

Lord Foulkes has called on Richard Leonard, the leader of the Scottish Labour Party, to step aside ahead of next year’s Scottish Parliament electons, the Daily Record reports.

The peer, a former MP and MSP, suggests that Jackie Baillie, the punchy and relatively right-wing deputy leader, could take over on an interim basis for the 2021 campaign.

Leonard is a left-winger who was a close ally of Jeremy Corbyn. His leadership has seen a fresh waning in the Party’s fortunes, losing all but one of its MPs (again) at the 2019 election and fifth place at the final European elections. Labour are currently bumping along at 15 per cent in the Holyrood polls.

Henry Hill: Davies touts ‘devolution revolution’ as the Welsh Tories try to shield their unionist flank

23 Jul

Davies says Wales needs a ‘devolution revolution’

The leader of the Welsh Conservatives has pledged a ‘devolution revolution’ and to give Cardiff Bay a ‘dose of Dom’ in his latest bid to avoid being outflanked by organised devoscepticism.

ITV Wales reports that Paul Davies made the remarks in a ‘virtual speech’ – available on YouTube – to Conservative activists ahead of next year’s elections to the Welsh Parliament.

Other sources report that the Welsh Tories’ new election strategy aims at tackling the long-standing problem this column has covered previously: mobilising Conservative voters who only vote at Westminster and in local elections to turn out for the Senedd. As I wrote two years ago:

“Secondly, both candidates would do well to address the severe disadvantage their Party suffers because hundreds of thousands of its voters do not vote in devolved elections. In 2016 the Tories polled just 215,000 votes, compared to over 400,000 in 2015 and almost 530,000 in 2017.”

Tory strategists have now set themselves the target of mobilising 75 per cent of their general election vote (557,234 in 2019) for the devolved contest, which if successful would almost double their 2016 vote to just under 418,000. For comparison, Labour’s majority-winning Senedd vote in 2016 was just under 354,000.

All this is the latest evidence that the advent of organised opposition to the Welsh Parliament is already shifting the balance of power inside the Conservative Party. The leadership remains firmly in the hands of the ‘devophiles’, but their new slogan – ‘Abolish Labour, not devolution’ – suggests they fear they’re on borrowed time.

Johnson funds research for the ‘Boris Bridge’ as he steps up campaigning in Scotland

News that the Prime Minister intends to embark on a tour of Scotland has probably not brought unconfined joy to unionists north of the border, but it remains infinitely preferable that he fights the good fight than not.

Following a week in which the Government squared up to the devolved administrations over the future of post-Brexit market regulations (with very good reason, and as we covered last week), this morning’s papers carry several stories on Boris Johnson’s pro-UK fightback, with the role of the Treasury in supporting the Scottish economy through the pandemic front and centre.

He has also apparently approved funds for a feasibility study into his proposal for the ‘Boris Bridge’ between Scotland and Northern Ireland. It still seems extremely unlikely it will be built, however, especially once the Government has to start making cuts to pay for all the Covid-19 spending.

MPs set up new ‘Union Research Group’

More evidence that the Tories are marshalling their forces in the Times this week, which covered the emergence of the new Conservative Union Research Group.

This new body is chaired by Robin Millar, the MP for Aberconwy, and aims to bring together backbench MPs to help support the Government as it prepares to take on Nicola Sturgeon and the devocrats. It reportedly already has the backing of around 40 backbenchers.

Although modelled on the European Research Group’s template, which has the virtue of being approved by IPSA, CURG sources emphasise that it is not intended to be a ‘party within a party’ or agitate against the Government. Defending the Union was in the Conservative manifesto in 2019, so it expects to be working with the grain of the leadership.

It isn’t yet clear whether or not the group will have any relationships with other parties – ERG membership is open to the Democratic Unionists – or how precisely it will operate. Watch this space.

Trouble at Stormont as ruling parties try to push through changes

There has been a new fight in Northern Ireland over proposed changes to the Assembly being pushed by Sinn Fein and the DUP, according to the News Letter.

On Tuesday the Assembly took just ten minutes to vote through the crucial stage of legislation which will increase the powers of ministers in the Northern Ireland Executive. Arlene Foster, the First Minister and DUP leader, has been accused of making a “massive error” based on a mistaken understanding of the law in question by a senior adviser who has now left the party.

Experts also warn that the changes are likely to lead to more legal challenges against Stormont decisions, contrary to the assertions of both Foster and Michelle O’Neill, her Sinn Fein counterpart.

Meanwhile, Ulster and the Republic have also revived joint ministerial talks, the FT reports, as the new Taoiseach tries to build bridges following the departure of Leo Varadkar.

Henry Hill: Johnson prepares to take a more ‘robust’ line on the Union… but muzzles devosceptics

2 Jul

Fight for the Union: Government mulls ‘devolution revolution’… but tries to muzzle Tory critics

Earlier this week, the Times reported that ministers are considering setting up new, UK-wide economic and security bodies as part of a bid to enhance the standing of the British Government in Scotland, Wales, and Northern Ireland.

This move could finally mark an end to the previous practice of feebly handing over reserved powers to the devolved institutions, even when this risked great damage to the Union, in the name of the “spirit of devolution”.

Apparently, “Tory ministers are preparing to be more “robust” with their SNP counterparts in taking responsibility for macroeconomic and security issues”, and ideas will be brought forward by a new Union Policy Implementation Committee, supported by a Downing Street-based ‘Union Unit’.

This may be some comfort to the Scottish Conservatives, many of whom are deeply concerned that the Prime Minister doesn’t grasp the scale of the danger posed to the Union by the next Holyrood elections. (Of course, holding a referendum is one thing ministers could be ‘more robust’ about.)

It also comes in the same week as Boris Johnson’s high-profile clash with Nicola Sturgeon over the latter’s threat to start quarantining visitors from England. Following the ugly politics we have already seen from the Welsh Government, this highlights once again the real damage the ‘Four Nations’ approach to the Union, so thoughtlessly endorsed by minister after minister, is doing to the integrity of our country.

But there are apparently limits to the boldness of this approach. This week Guido Fawkes reported that the whips have been cracking down on Conservative MPs who want to break ranks and criticise devolution. This is further proof that the divisions we revealed in May are not going away, and will continue to exacerbate the coalition-building dilemma faced by the Welsh Tories.

For their part, the ruling devophiles amongst the Cardiff Bay leadership are reportedly doubling-down on their efforts to excise wrongthink on this question: apparently expressing devosceptic views is enough to get even already approved candidates summoned back for re-assessment.

But silencing such critics will only slow (even further) the Government’s painfully slow awakening to the dangers of the current constitutional situation. We must hope that, like the Eurosceptics before them, it will not be long until some true believers slough off the whip on this particular question.

Elsewhere this week Joanna Cherry MP, an ally of Alex Salmond and prominent figure on the SNP’s ‘fundamentalist’ wing, called on the Nationalists to be prepared to make a bid for independence without a referendum.

Plaid Cymru launches investigation after Senedd candidate accused of antisemitism

The Welsh Nationalists have launched an investigation after a prominent Jewish organisation called for one of their candidates to be permanently barred from the Party over an antisemitic tweet.

According to Wales Online, high-profile Plaid activist Sahar Al-Faifi tweeted the same claim about Israel training US police officers which ended up seeing Rebecca Long-Bailey sacked from the Labour front bench.

This is not the first time this has happened: Al-Faifi was previously suspended from Plaid over a series of antisemitic social media posts published in 2014, but was since reinstated. Apparently the Nationalists would not confirm whether or not she remains a candidate.

DUP call for O’Neill to ‘step aside’ over funeral attendance

The Democratic Unionist Party are calling on Michelle O’Neill, the leader of Sinn Fein in Northern Ireland and Deputy First Minister, to step aside to allow a police investigation into a republican funeral held earlier this week.

O’Neill, who has repeatedly urged the public to maintain social distancing and obey other public health guidelines, flagrantly breached them at the funeral of Bobby Storey, an IRA terrorist and senior Sinn Fein official.

Now the DUP are saying that it will be difficult for Arlene Foster, the First Minister, to appear alongside O’Neill at the Executive’s coronavirus press conferences. For her part, the Sinn Fein leader says that she is “satisfied” that her actions were within public health advice.

Anglesey constituency protected from ‘radical’ boundary shake-up

ITV reports that the Government has committed to protecting the boundaries of Ynys Môn, the parliamentary constituency which corresponds to the Isle of Anglesey, ahead of “the most radical shake-up of Welsh parliamentary seats in more than a century”.

Under the proposals, Wales’ seats will be brought into line with England’s in terms of size. As a result, the Principality’s representation in the House of Commons will be cut by almost a quarter, from 40 to about 32. This is part of a broader push to equalise constituencies across the UK.

Anglesey will now join four other island-based exceptions to the new rule: Orkney & Shetland and Na h-Eileanan an Iar (Western Isles) in Scotland, and two seats on the Isle of Wight. The move may help the Conservatives, who won the seat at the last election, as the adjoining area of mainland Wales is slim pickings for the party.