The Northern Ireland Protocol. May became the ERG’s prisoner. Now it is shackling Johnson.

29 Jun

Boris Johnson built his second leadership bid in part on excoriating attacks on Theresa May for accepting an internal border within the United Kingdom after repeatedly claiming that such a thing could never be accepted. He then proceeded to accept an internal border himself.

This is not a failing unique to the Prime Minister; the broad bulk of the parliamentary Conservative Party is more or less culpable. Witness Liz Truss’s interview in the Belfast Telegraph where she at once denounces the Protocol whilst defending her decision to sign up to it, apparently on the basis that she thought the text would be changed.

Since then, we have seen the Government march up the hill toward triggering Article 16 several times, only to march back down again on every occasion. Deadlines after which action would have to be taken came and went.

Whatever one’s view of Johnson, whose titles include Minister for the Union, it seems quite clear that it is not his instinct to seek a showdown with Brussels over a regulatory and customs border in the Irish Sea.

Yet the Prime Minister is no longer a man in his imperial prime, and the situation looks as if it is starting to run beyond his control.

The decision to appoint Liz Truss to the Northern Irish brief after Lord Frost resigned may well come to be viewed as the decisive turning point. The latter was a diligent unionist, and since stepping down has emerged as a vocal critic of Johnson. But his situation in the House of Lords meant that he was never a realistic contender for the Tory crown.

This cannot be said of the Foreign Secretary, who is widely considered a front-runner in the event of a leadership contest (and places highly in our monthly Cabinet League Table). When it comes to the costs and the benefits of a showdown with Brussels, she will be making a very different calculation to her predecessor.

Only a few weeks ago, it was reported that Johnson was lining up with Michael Gove and Rishi Sunak against Truss’s proposals. Yet the Foreign Secretary has clearly carried the day, and this suggests that, for all the fitful efforts to appear as if he’s paddling, the Prime Minister is now caught in a powerful political undercurrent.

It is not necessarily that Conservative MPs are spoiling to a man and woman for a fight. But just as in the last parliament, the better-organised and more rebellious elements of the Tory caucus, most obviously the European Research Group, are disposed towards action. By contrast, the Party’s disaffected left have still yet to make a habit of rebellion; May might have denounced the new Bill in the Commons earlier this week, but she didn’t vote against it.

Perhaps it is biding their time; the Bill will certainly get a mauling in the House of Lords, and should Truss try to press on with it in its current form they can always reject it at third reading. Given that the Government is not obviously prepared for a Christmas trade war in the depths of a cost-of-living crisis, perhaps both she and Johnson might be thankful if their colleagues were to play the villains and spare them the need to follow their current strategy – if there is a strategy – to its conclusion.

But that would merely put both back to square one. The Democratic Unionists would not return to government at Stormont, an internal border would continue to undermine the integrity of the Union and the British internal market, and the ERG and its ‘star chamber’ would now be agitating against them.

Alternatively, perhaps the Bill was always meant to be a negotiating tactic. That was certainly implied by Truss’s suggestion – which would have completely undermined the Government’s claim that the legislation was justified by ‘necessity’ – that it would be held back until the DUP restored power-sharing in Belfast.

If so, Johnson’s track record weighs against such a strategy. Nobody has good reason to take him seriously. The DUP were certainly right, at least on tactical grounds, not to throw away their principle bargaining chip in exchange for a mere promissory note from Number Ten. Brussels have every reason to expect the Prime Minister to fold, as he has in the past.

Thus, as is so often the way with these things, both sides may be sliding towards a confrontation for which neither is keen, and which perhaps neither really thinks will happen.

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Austen Morgan: How Truss can make the legal case for unilaterally changing the Protocol

27 Jun

Dr Austen Morgan is a barrister at 33 Bedford Row. He is the author of ‘Pretence: why the United Kingdom needs a written constitution’, to be published this September.

Is the UK – with the Northern Ireland Protocol bill now in parliament – in breach of international law?

Yes, if one is a EU loyalist, and brooks no disagreement with Maroš Šefčovič, its vice president. No (or not obviously so at this point), if one practises domestic law as I do, aware of the law of nations out there governing states.

The Protocol forms part of the UK’s withdrawal agreement of October 2019, made with the EU, followed by the free-trade agreement of December 2020 – some two thousand pages drafted in Brussels, which restored national sovereignty at 23.00 (GMT) on 31 December 2020. These are treaties in international law.

The Withdrawal Agreement provided for an orderly withdrawal (which happened legally in January 2020), and also legal certainty in the UK and EU – which has not come about; the Protocol (with 19 articles and seven annexes amounting to 132 pages) is a drafting nightmare.

True, the UK is treated as a third country (and not a dependency of Brussels). True, the protocol refers to the customs territory of the UK. True, Northern Ireland may be included in UK international trade agreements. And true, there is unfettered access of Northern Irish goods to Great Britain.

But – and it is big but – while the UK has ceased to be a member of the EU, the territory of Northern Ireland has been left behind in the single market for goods, subject to continuing EU law (on customs and regulation), listed at considerable length in five of the seven annexes – and all this because of a limited risk of east-west goods, from Great Britain to Northern Ireland, leaking into the Republic of Ireland.

The practice of the EU, perceived as the creation of an Irish sea (trade) border, is seen increasingly in constitutional terms, namely the severing of the British state on an east-west axis. This echoes the nationalist argument about no hard border north-to-south in Ireland, which was permitted to dominate the withdrawal negotiations..

There is a number of arguments available to Liz Truss, of varying weight, which have yet to be deployed effectively in support of the Government’s bill.

First, we did not foresee (she told the commons on 17 May 2022) that the EU, instead of requiring light-touch controls on east-west trade, would require the tracking of every consignment. This is at best naïve. While it might work politically, it will not succeed legally.

Second (a better argument): the Protocol is only an agreement to agree. It does not contain clear obligations binding the UK. Article 166 of the withdrawal agreement includes:

‘The decisions adopted by the [Truss/Šefčovič] Joint Committee shall be binding on the Union and the United Kingdom…They shall have the same legal effect as this Agreement.’

If the EU declines unreasonably to adopt new decisions, it – and not the UK – might be in breach of the good faith provision in the withdrawal agreement (and international law).

Third, Lord Frost, from March 2021, and Liz Truss from January 2022, tried to talk sense into their Moscow-educated (and former communist) Slovak interlocutor.

In July 2021, the UK Government published a command paper: Northern Ireland Protocol: the way forward. It contained the big idea of optional regulation by the EU or the UK, and the practical proposal of red and green lanes. The EU responded in October, with minimal concessions (including on medicines).

Maroš Šefčovič (stepping on to the territory of unreasonableness) has insisted that his mandate is to uphold the withdrawal agreement, tout court.

Fourth, the Belfast Agreement. This 1998 London/Dublin agreement brought peace to Northern Ireland. The card should not, however, have been played by the EU, since it made no reference to the Irish border or to trade.

Now that the Belfast Agreement runs through the Protocol like Blackpool through rock, the UK may legitimately play it back: peace and stability is now the priority issue, following the resignation of the first minister, Paul Givan, in February 2022, and the failure of the assembly to come back in May 2022.

Boris Johnson insists that the Government’s bill – with a second reading on 27 June 2022 – will not, after enactment, be in breach of international law. The argument is not contained in the bill, nor the explanatory notes – so MPs and peers will have to look elsewhere.

On 13 June 2022 (at first reading), the foreign office issued a press release, hyperlinking to a policy paper… which no one seems to have read.

The Government prays in aid the doctrine of necessity in customary international law, now codified by the United Nations in: international law commission, Responsibility of states for internationally wrongful acts (2001).

Article 25 permits a wrongful act – here saving the Belfast Agreement at the expense of the Protocol – if two conditions apply: first, ‘safeguard[ing] an essential interest against a grave and imminent peril’; and second, ‘not seriously impair[ing] an essential interest of the…States towards which the obligation exists, or of the international community as a whole’.

The second condition might be easier to prove than the first. But the problem would be finding an international court to decide.

Most likely, the United Kingdom Internal Market Act 2020 will be a precedent, with the UK using the legislative process to negotiate more effectively with the EU for joint committee decisions which better specify the protocol and mitigate harshness in practice.

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Robert Tombs: Our recent history rebuts the perennial narrative of British decline

20 Jun

Robert Tombs is the author of This Sovereign Isle: Britain In and Out of Europe, which appears in an updated paperback edition on 28 July. He is a fellow of the Centre for Brexit Policy.

Throughout the United Kingdom’s existence, its rulers – and many foreign friends and enemies – have been convinced it was on a downward spiral.

The ‘memorable era of England’s glory is past’, thought William Pitt in the 1780s, and the Emperor of Austria agreed: Britain had ‘fallen utterly and forever, all influence and force lost … a second class power.’

We were ‘a weary Titan’, lamented Jospeh Chamberlain in 1902. Dean Acheson, the former US Secretary of State declared in 1962 that Britain had ‘lost an empire and not yet found a role.’

This litany of pessimism (and there is much more in the same vein) is always at least in the background, and indeed it often dominates discussion.

It reflects the glaring imbalance between our size and our global role. The world communicates in our language, copies swathes of our culture, uses many of our political and legal principles, and has followed our path of economic development.

Such disproportionate power and influence have often seemed precarious and fragile, even fraudulent. So it is easy to feel that we have declined from some unspecified Golden Age.

Declinism reached new depths in the postwar period. What caused it? Militarily, we were certainly overtaken by the USA. But then so was every other Great Power. The end of empire was a severe blow to the prestige of the political and diplomatic establishment. Yet the empire had brought limited economic advantage and was a huge drain on resources.

The economy was portrayed as falling behind Europe, but this was only because Italy, France and Germany were experiencing a one-off boom. Ironically, this came to an end just as we joined the EEC, and we have outperformed the Eurozone since its creation.

The declinist mindset is damaging. It persuaded governments in the 1960s and 70s to beg to join the European Common Market. The EEC was ‘the lifeboat’ and Britain ‘the sinking Titanic’, as one of Edward Heath’s close advisors put it. So however disadvantageous the terms, we should ‘swallow the lot,’ decided the chief British negotiator.

This same mindset underlay Remainer sentiment, and affected the politicians and officials who swallowed the EU’s ‘divorce settlement’, treating Brexit as a damage limitation exercise rather than a national opportunity.

Britain, to them, is a weak and failing country, that can only survive in the EU lifeboat or clinging to its gunwales – however many leaks the lifeboat keeps springing.

If we look at our history dispassionately, it is not a story of decline, but one of remarkable continuity over three centuries: as the smallest of the half-dozen or so most powerful states, but arguably the most enterprising and influential.

If one drew up a ‘league table’ over the last three hundred years, it might suggest that we have recently risen.

Never before in our peacetime history have we been Western Europe’s leading military power (our army in the 1930s was much smaller than that of Czechoslovakia, for example). Never before have we extended security guarantees as far east as Finland – Palmerston would have had a fit!

Brexit was a victory – even though a narrow one – over declinism and ‘Project Fear’. Most voters refused to accept that their country was incapable of successful self-government, and they have stuck to that opinion. Forceful aid to Ukraine has shown what is possible.

Our global role has been assessed by Professor Brendan Simms, the Cambridge international relations specialist, as ‘probably in third place after the United States and China, and certainly among the top four or five actors in the global system.’ We need governments that will act accordingly.

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Robert Buckland: To achieve its aims, and protect the UK’s essential interests, the Protocol needs to change

15 Jun

Robert Buckland is MP for South Swindon, and is a former Secretary of State for Justice, Lord Chancellor, and Solicitor General.

In a different age it was not uncommon for treaties to set out that they would remain fixed as long ‘as the sun and moon shall endure’.

It goes without saying that even then, states found ways of adjusting their terms – for while the sun and the moon are predictable, other events in life are not.

One way of dealing with things is to adopt a stance of masterly inactivity, watching and waiting to see which way the wind will blow. The problem with this is that such an approach is usually taken to preserve a position that is in the national interest.

When it comes to the Northern Ireland Protocol, the reverse is true.

The Northern Ireland Protocol was written with several objectives in mind: safeguarding the Belfast (Good Friday) Agreement; ensuring north-south links were undisturbed by any ‘hard’ border; and protecting the EU’s single market whilst at the same time protecting the UK’s territorial integrity and customs union.

Needless to say, this was a novel agreement, and no one could predict how it would be received. What was more important for east-west trade: avoiding tariffs, or paperwork? Would state aid really be an issue? Or would the UK ever, realistically diverge on VAT? None of this could be known in advance.

It is not my purpose to give a full account of the problems with the Protocol. It seems clear that it has achieved some of its objectives, but not others.

It is true that north-south trade is unfettered, and it seems that the EU single market has been protected. Despite the only partial implementation of the Protocol (given the ‘grace periods’ on many of the onerous checks), there has been no discernible evidence of leakage into the Single Market.

In contrast, however, east-west trade is greatly disrupted, which means that the Belfast Agreement has been significantly disturbed.

Difficulties in trading, not to mention getting pets and parcels across the Irish Sea, have caused a sense of separation. Missing out on VAT savings that apply in Great Britain, or on targeted tax packages like Freeports, create a sense of unfairness.

Living with EU law and Court of Justice of the European Union (CJEU) jurisdiction, with no option to produce under UK law, leaves many unionists asking: what has happened to the constitutional settlement that kept Northern Ireland as part of the UK?

The executive and assembly have collapsed, without any real chance of getting back up and running until these mixed issues of identity and trade are resolved. With Tony Blair and Hilary Benn rightly outlining the need for compromise and change from the EU, doing nothing is not an option for the Government.

The question for lawyers is: what are the pathways to resolution? The answer depends on what legal ‘routes’ we have available to justify this legislation if and when it actually comes into force, or is otherwise challenged.

Firstly, we should look to the Protocol itself.

The Protocol was alive to the unpredictability of events. It contained Article 13(8) which made it clear the terms could be renegotiated in whole or in part.

The Withdrawal Agreement (which the Protocol is a part of) contains an even clearer admission of the need for flexibility: Article 164(5)(d) noted that the Joint Committee could agree to change the text of the Protocol, to address ‘deficiencies’ or to address ‘situations unforeseen’.

It also contains Article 16, which allows one party to take steps to respond to serious economic or societal difficulties, or the diversion of trade.

However, all of these routes have limitations.

The first two require a willingness to renegotiate. For now, that route is closed, with the EU unwilling to change its mandate and to even use the word ‘negotiation’ to describe the 300 hours of talks that have taken place over the last 18 months.

What, then, of Article 16? That has the advantage of being something the UK can commence by itself. It then mandates a period of consultation, but would probably end up being ruled upon by arbitrators.

The issue here is that the breadth of Article 16 is untested, which means legal uncertainty, both domestically and internationally. The problems of the Protocol are significant, and the changes needed to the Protocol would seem to require stability and certainty.

This route is a possibility, but an uncertain one. Sensibly, the Government seems to be keeping its powder dry on this one, with its legal statement said to be ‘without prejudice’ to a potential use of Article 16.

The clearest route that remains is something not found in the Protocol at all, but in customary international law. It is the rarely-used doctrine of ‘necessity’. It is often called upon when all other options have run out – but where, nonetheless, there is a requirement to act in order to safeguard an ‘essential interest’.

Usually, if things are bad enough to justify necessity, the other side sees that too, and are willing to negotiate. But sometimes that is not possible.

In the mid-1990s, the Canadians faced a similar dilemma. The Newfoundland Grand Banks were being overfished – but the relevant international law obligations could not be re-negotiated in time to deal with the situation. So it legislated on the basis of ‘necessity’ – seeking to protect its essential interest (if not that of the fish).

The UK’s ‘essential interests’ are clear: maintaining stable social and political conditions in Northern Ireland; ensuring the unique constitutional structures of that agreement are effectively functioning; and preserving and fostering social and economic ties between Northern Ireland and the rest of the United Kingdom.

All of these, one way or another, draw on the Belfast Agreement. It is not by accident that this features heavily in all statements and documents in the lead up to the agreement, and is very clear in the first article of the Protocol itself: the Protocol is ‘without prejudice’ to the Belfast Agreement – and the Protocol is ‘necessary’ to ‘protect the 1998 Agreement in all its dimensions’.

In times when co-operation with the EU seemed impossible, we were able to agree that the Belfast Agreement stood head and shoulders above all else. Both sides entered the Protocol in good faith, believing its provisions would provide the right balance, the right compromise for all who call Northern Ireland home.

But events have proven otherwise. At a time when European co-ordination has never seemed so vital, or so necessary, it is my hope that whatever their differences, we can still agree on this: that we must do everything we can to preserve the gains of the peace process.

That means giving devolved political institutions the best chance of getting up and running. That means ensuring that both communities can buy into an agreement that delivers a balance in trade and in identities. That means securing peace in Northern Ireland for another generation.

And that means in order for the Protocol to achieve all of its objectives, it needs to change.

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The Prime Minister’s need to pretend the Protocol was fine when he signed it weakens his international law case

14 Jun

Last night, the Government published its legal position on why, in its view, its decision to proceed with legislation to set aside parts of the Northern Irish Protocol will not breach international law.

There is a throwaway reference to Article 16, which doesn’t matter because the Government is not proposing to trigger Article 16. The crux of the actual case hinges upon something called the “doctrine of necessity”. Here is their definition:

“…the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”

In this case, the essential interest is purportedly the proper functioning of the Belfast Agreement; even partial implementation of the current Protocol has alienated Unionism and jammed the devolved institutions in Northern Ireland.

Certainly, it seems deeply questionable to assert, as the Government does in its above-linked position, that “the peril that has emerged was not inherent in the Protocol’s provisions”.

This is a puzzling assertion, to say the least. In what universe was the Protocol ever unproblematic? One where Unionists simply rolled over for whatever reason and raised no objections?

But the Government has to make it, because Boris Johnson signed the Protocol and most of his MPs backed him in doing so.

That means they can’t make the best, most cogent case against it, which is that it is fundamentally flawed and undermines Northern Ireland’s position in the United Kingdom. Not when the Government is busy fighting David Trimble in court and insisting that yes, it really did override the Act of Union.

So instead we get this position, which seems to amount to the argument that there is nothing wrong with the Protocol in theory, it’s just in practice that everything is on fire. (In this respect, they sound a lot like the old defenders of the Fixed-term Parliaments Act.)

But if the idea that the problems with the Protocol were unforeseeable is not convincing, the argument of exigent circumstances seems more so.

The Loyalist Communities Council has already walked away from the Belfast Agreement altogether. All the major Unionist parties are demanding change. Stormont has fallen over, again.

The Protocol (and the sea border) is putting Ulster’s devolution settlement under enormous pressure.

Hostile commentary seldom concedes this point, because it usually either ignores the existence of Unionists or else refuses to acknowledge their anger as part of any systemic problem.

Nobody reasoning in this spirit is going to concede that a slow-burning crisis rooted in Unionist anger meets whatever the criteria for ‘necessity’ are. That is for their crises, not yours.

But the case for action on the Protocol to protect the overall settlement – which means keeping unionists on side, whether the nationalists and the Alliance Party like it or not – seems pretty solid. Even Tony Blair concedes it.

And if we accept that the Belfast Agreement is one of the most important undertakings of the British State – which in most circumstances we are encouraged to do – then the Government is doing nothing which the Federal Constitutional Court in Germany has not already done in much more explicit terms: setting fundamental constitutional obligations above international legal ones.

But will that matter? Probably not. Because ultimately, given that the relevant players are sovereign actors rather than subjects of a sovereign authority, this is all politics, and power politics at that. One doesn’t need to push most advocates of the Protocol very hard to get arguments that owe more to the Melian Dialogue than any airier principle.

That the Prime Minister is currently in a position to win a contest of strength with Brussels is, at the current moment, not obvious.

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Interview: Frost on Johnson’s future, tax cuts, admiring Cummings, Net Zero – and the abuse he has faced as he mulls his political future

14 Jun

If anything stops Lord Frost from carrying on in politics, it will be the “shocking” degree of personal hostility he has encountered, which he describes, unbidden, at the end of this interview:

“The degree of aggression, hostility on social media and beyond, has been quite striking to me. I’ve had people spit at me in the street, push me, shout at me on trains, this sort of thing.

“So I’m now a bit edgy about any kind of public interaction. That has been a real surprise and disappointment to me.”

He observes that because he became a minister without having first been an MP, he had not become accustomed to some of the rigours of life in the public eye.

Frost resigned as a minister in December last year, in protest at the Government’s “direction of travel”, but is now considering seeking election to the Commons, in order to press Boris Johnson and his team to adopt more Conservative policies, including tax cuts:

“The trouble is in many ways the damage is done in the sense that we’ve now shown to the world we’re willing to raise taxes. You can’t put that genie back into the bottle, other than through a recantation: ‘We got this wrong, it was the wrong thing to do, we’re a low-tax Conservative Party.'”

In this interview he describes how, while serving as a career diplomat, he became a Eurosceptic, and how later he became a “big admirer” of Dominic Cummings.

He deplores the restrictions on freedom of expression during the lockdowns of recent years, and opposes the target of reaching Net Zero by 2050:

“I think we’re going at it too fast with technology that can’t yet do the job, and the risk is that we end up with rationing and demand management rather than achieving the goal.”

But he began by discussing the Northern Ireland Protocol. This interview was conducted at teatime yesterday afternoon, before the Government had published its Bill, but Frost explained the principles which should inform policy, and why it was right in the first place to sign the Protocol, and is right now to insist on changes.

ConHome: “You tweeted this morning: ‘Many are asking for my view of today’s NI Protocol Bill…The Govt is right to act but must get the detail right.’

“You say in between those quotes that you need to read and study it. You won’t have been able to do that yet, but what would getting the details wrong look like, and what are the dangers inherent in the Bill?”

Frost: “We know there’s been a back and forth over the past week internally between groups with different views on this subject, and I suppose what might be a risk would be if they found compromises that tried to keep everybody happy, tried to find middle ways that don’t complete the logic of the direction that’s established.

“Are you going to take the [European] Court out completely, or is there going to be some residual role? Is dual regulation done in a simple way, or in a complicated way?”

ConHome: “You mean they mustn’t muddle it in such a way that all the people who think it isn’t being done properly are on their back, and all the people who complain about breaking international law are on their back, all at the same time? They’ve got to make up their mind what they’re doing?”

Frost: “Yeah, I think that’s fair. This is going to cause a lot of alarms and excursions, obviously. If we’re going to go through this we need to make sure we deliver the result that’s worth having at the end of it.”

ConHome: “What do you think of the objection that this is clearly in breach of international law, the Attorney General is there because she’s a Spartan, they’ve dragged in the Treasury devil but he’s not allowed to pronounce on the legality of the proceedings…”

Frost: “So who knows what’s happened internally on all of that. I think the Attorney General, she’s the legal adviser to the Government and what she says goes, and there’s always debate around things, but I think that is decisive.

“We’ll have to wait and see what the summary of the legal position is when it’s published. It sounds as if the Attorney is convinced there’s an international law support for this course of action.”

ConHome: “Is there not a case for publishing the whole legal advice?”

Frost: “Well it’s not normally done. I don’t think it’s necessary as long as you make clear what the Attorney’s view is.”

ConHome: “One view is that the main problem for the Government is that the Bill won’t persuade the DUP to go back into government in Northern Ireland before it is passed.

“If it doesn’t achieve this end, it will simply help create further ill-will for nothing, won’t it?”

Frost: “Every course of action on the Protocol now has some risk that it won’t bring along somebody, that it won’t bring along one group or another, somebody won’t like it.

“In the end you’ve got to act and invite everybody else to react to that action. So I hope the DUP do what’s necessary and begin to come back in to the Executive after this is tabled, if it is what we think.

“But if they don’t it doesn’t make it any less valid that we should be acting as we are.”

ConHome: “Does anyone ever change their mind about the Protocol? Such a high percentage of the debate is just experts, or supposed experts, repeating their previous positions.”

Frost: “It’s such a complicated and delicately balanced document in the first place that it’s capable of accommodating various interpretations.

“I thought it was carefully balanced, I thought it would last longer than it did, I thought the EU would run it in a more sensitive way than they have done.

“So the fact that they haven’t means I’ve changed my view slightly.

“But the text itself says what is says. It was a response to events.

“And those who say ‘I wish we’d not signed this’ or ‘You shouldn’t have signed it’ have got to face up to the reality at the time.

“It’s very easy for commentators to say ‘I wish it hadn’t been like this’. But they have to say what would they have done faced with the choice of signing an improved but still imperfect Protocol, and getting Brexit to happen, or endless prolongation of the constitutional war and possibly Brexit never happening.

“Those were the actual choices, and to pretend there was some other way through is just trying to have it all ways.”

ConHome: “The objection then becomes that having signed it, you’re in no position now to try to drive a coach and horses through the very vehicle that you signed in this Bill.”

Frost: “I mean I wish it didn’t have to be like this, is the simple answer. It wouldn’t have taken much to run it in a more sensitive way. It is of course not being fully implemented even now. It can only work because of the grace periods and so on.

“I wish it had been possible to do it differently but it isn’t.”

ConHome: “At the other end there are people who say, ‘We could deal rationally with Michael Gove. Indeed we reached a settlement with Michael Gove. But we found David Frost to be a complete monster, who stuck obdurately to a UK position and is responsible for some of this trouble.”

Frost: “So I think what’s happened since I left sort of disproves that. There are two answers to that question. One we came in, I came in in 2019-20 after three years in which the UK had not been saying clearly what it wanted and had been making a terrible hash of the negotiations.

“There was a need to be clear and a need to be forceful in what we said if we were going to get anything to happen.

“Second, this year Liz Truss initially started with a completely different approach and there was a month or so when everyone said this brutish, nationalist Frost has disappeared and we’ve now got somebody who can work.

“And where are we? We’re in exactly the same position. How negotiators are to each other is only a minor element in it. The question is what is the national interest involved.

“There hasn’t been any movement on the national interest involved and that’s why we are where we are.”

ConHome: “When did you become a Brexiteer? One looks at your C.V., Foreign Office, Ambassador to Denmark, you had this key strategy role in the Foreign Office. This is not a C.V. that’s automatically associated with support for Brexit.

“So when did it happen? Did you have to keep it quiet?”

Frost: “I regarded myself as a Eurosceptic pretty soon after I went to Brussels in the Nineties. I went to Brussels with quite conventional opinions and they changed through seeing the way it worked, to be honest.

“And this was the Major Government era and all the drama of that. I think I began to think leaving might be necessary, because one forgets now leaving was really quite a far-out opinion until quite late in this process, I began thinking it might be necessary around the time I left the civil service, around then, 2013.

“I think many of us, it was only when the renegotiation failed, indeed was never seriously tried in the first place, that it seemed like OK there’s no real option left other than leave now.

“It was probably known that my opinions were, within the Foreign Office, quite sceptic. There are people like Charles Grant for example who will say that ‘I never realised he was a Eurosceptic, he never seemed to show any sign of it when I met him’.

“Well good, I was supposed to be representing the Government, that was the job. It doesn’t mean one can’t have internal convictions on things.”

ConHome: “When you did the Scotch Whisky Association job [Frost was Chief Executive 2014-16] your line in the referendum was pro-Remain. Presumably that came with the job?”

Frost: “Again, I represented the views of the members on that. Actually, I was on the Council of Open Europe at the time, and Dom Cummings, who I didn’t know, did a bit of a hit job on me in May during the referendum campaign.

“So if you look on Guido round about that time you will find some of my internal emailing leaked to him, which shows that my private opinion was different.

“That was actually quite awkward for me at the time.”

ConHome: “Is Cummings a loss to the Government, or had the position become completely impossible?”

Frost: “I think he is a loss. I’m a big admirer of Dom. I haven’t agreed with him on everything, in particular on aspects of lockdown, Covid policy, we’ve had a different view, but I think his focus and ability to look through the day to day noise, focus on the goal, work out what’s important to it, what isn’t, you know that’s quite a rare skill in government, and it’s even rarer to be given a chance to act on it.

“So I think you need somebody like that, you need people who are able to do that. Otherwise you become overwhelmed by the day-to-day noise.”

ConHome: “Do they have that in the team now?”

Frost: “Well I don’t know the current team as well as I know the predecessor. It’s not obvious from events that they have that at the moment. But if they haven’t, they ought to try to get it.”

ConHome: “Are you enjoying being a columnist? You can say whatever you like, you’re not constrained by collective responsibility. Do you enjoy it?”

Frost: “I do quite. I might get a bit weary of saying, at some point, and want to do doing again. Who knows? But at the moment I’m enjoying it.”

ConHome: “You have become a kind of right-wing poster boy. You’re writing in favour of a small state, lower taxes, you’re sceptical about lockdowns, sceptical about Net Zero, you want less regulation.

“To the members, this is a dream, and you do recognise what’s going on. There’s a lot of conversation about ‘If only they’d do what Lord Frost tells them to do, and if only Lord Frost were there to do it’.”

Frost: “Yeah, I mean it’s been a bit of a surprise to me to be honest. I’ve been a party member, off and on, for some time, obviously you can’t do much more when you’re in government, but you’re allowed to have convictions about things.

“What I say now I just regard as normal conservatism. You know, let’s get the state back down to the size it was when Gordon Brown was in power, that’s good.

“That doesn’t make you in favour of a night watchman state. It just makes you in favour of trying to shrink it when you can.

“I think lockdowns were extremely damaging and liberated some extremely worrying forces and currents of opinion that we need to do our best to put back in their box.”

ConHome: “Which are what?”

Frost: “The authoritarian state. Vaccine passports and wherever that may lead. Some of the constraints on the free expression of opinion that happened from time to time during lockdown.”

ConHome: “Anything in particular?”

Frost: “The most obvious thing is where did all this start, was it a lab leak or not, the ability to debate that. I thought it was also suggestive they took quite some time before they acknowledged the vaccines don’t prevent transmission, they only prevent symptoms.

“There was a kind of month or two where that was obvious but it was not acknowledged in official statements, and then became too obvious not to.

“I think one of the most worrying things was the inability to look objectively at the evidence, weigh it up, come to reasoned conclusions. There was much too much doubling down on ‘we did this so we must stick to doing it, even if the evidence points in a different direction’.”

ConHome: “You said last month, ‘I don’t think the Lords is a particularly brilliant place to do real politics from. I think you need to be in the Commons to do real politics, that’s obvious…if in future the opportunity comes up and the party wants me to do it, obviously I would be ready to stand down from the seat and do proper politics again.’

“Do you want to be in the House of Commons?”

Frost: “It was a new thing to me. I left out of concern about the direction of travel and the plan B. I hadn’t really intended to continue political life in a different way.

“But then there’s been this speculation about would I do it. What you’ve just quoted says what I think. The House of Lords is a great institution and I don’t want to undermine Conservative colleagues who do a good job and are very necessary to getting the business through.

“But the fact is it’s an unelected house. You can’t take controversial positions in it, you can’t easily advocate cases, and in the end you can’t and shouldn’t I think really block and change things in the Lords.

“If you aspire to shape opinion and make things happen I think it’s right that you should be in the Commons. Whether I want and will do that I’ll see.”

ConHome: “To be clear, you’re mulling the possibility.”

Frost: “Yes, I think that’s fair.”

ConHome: “The obvious critique of all this is look, here’s Lord Frost, he was quite a senior minister, which means you’ve got to knuckle down and accept things you don’t like, on Net Zero, Covid, the direction of tax and spend and all that.

“And if Lord Frost didn’t want to do that within the Cabinet, in the Lords, why would he be any good at doing it collectively with colleagues in the Commons?”

Frost: “Well I think it’s a fair question. Obviously there are quite a lot of Tory colleagues in the Commons who have the same opinions as me on quite a lot of things, and that’s not a contradiction for them.

“What we need to do is get the Government onto an agenda that more Conservatives feel they can support.”

ConHome: “Do you think that Rishi Sunak has succumbed to the institutional grip of the Treasury and isn’t bold enough about income tax cuts?”

Frost: “Well I don’t know about him personally, and I’m always a bit cautious – lots of people attributed to me thought processes and beliefs that weren’t in fact the case.

“But obviously I think that the economic situation requires loosening of fiscal policy and tightening of monetary policy, and I think that means personal tax cuts, not rises. If we could reverse out what we’ve done that would be a start.

“I do think the Treasury orthodoxy is very strong, and I wouldn’t like to say he’s been captured by it, I don’t think that’s fair, but I do think the Treasury Finance Ministry view of the world is all about getting in money, it isn’t about structural reform to increase the productive capacity of the economy.

“The trouble is in many ways the damage is done in the sense that we’ve now shown to the world we’re willing to raise taxes. You can’t put that genie back into the bottle, other than through a recantation, ‘We got this wrong, it was the wrong thing to do, we’re a low-tax Conservative Party.’

“And that should be the direction of travel. I’m not sure how likely that is, mind you.”

ConHome: “On Net Zero, what’s your view? That the target is too severe?”

Frost: “I think the way I would look at it is not to get into ‘Is it the right target?’ or ‘Is global warming scientifically justified?’ or whatever. From the political point of view, my view is that with the technology we’ve got I don’t see how we deliver the target by 2050 unless we are rescued by fusion power or some massive advance in battery power.

“But at the moment those things don’t seem likely. And I don’t see how we are going to decarbonise the grid by 2035. I don’t see how the technologies exist.

“And everybody is ignoring the fact that the intermittency of renewables (a) is a problem in itself (b) imposes huge costs elsewhere on the grid by the way of backup and inefficiency.

“I think we need more focus on security. We need a more realistic focus on the speed of the transition. I think we’re going at it too fast with technology that can’t yet do the job, and the risk is that we end up with rationing and demand management rather than achieving the goal.”

ConHome: “Lots of our readers will think all that is simple common sense, and will therefore ask, ‘What did other people say in government when you put this view to them?'”

Frost: “One other consequence before I answer the question. Net Zero affects huge parts of the economy, not just in energy prices but in systems, the way it works.

“And if you want serious post-Brexit reform that produces greater efficiency, lower costs, simpler ways of doing things, the existence of the Net Zero target is a big inhibition on that.

“You’re essentially saying large parts of the economy are off-limits for the purposes of reform.

“So that’s the context that I used to have those discussions in. Without going into detail, I think many people would acknowledge that.

“I think people reasonably point out Net Zero was in the manifesto, it was something that was campaigned on, it was one of the pledges, it should be taken seriously.

“I don’t want to speak for others. But many people have a degree of uncertainty and unease about it that is not always dealt with.”

ConHome: “What were your feelings at 9 p.m. last Monday when you heard that 148 Conservative MPs had voted against the Prime Minister?”

Frost: “Well, I was happy the PM had survived, I wasn’t that surprised to be honest the vote against was so high, reading the runes.

“I think the Prime Minister, I’ve said it, I think he’s a remarkable guy, he’s done a lot for this country, he deserves a chance to deliver and to continue with the agenda, so I’m glad he’s survived from that point of view.

“But I do think he’s got to deliver the agenda. That’s the question mark now. And I’ve worked as closely with him as anyone over the last five years, and I feel for him, the agonies of this very, very difficult politics.

“But equally, we’ve got a majority of 80, we must do something with this majority of 80 to keep improving the country.

“Can I say one other thing I meant to say, just about coming into politics?

“Most people become ministers and do controversial things in politics after they’ve been an MP. For me it all came suddenly out of the blue, and having to get used to the public exposure suddenly, without any kind of prep, has been quite shocking in some ways to me.

“The degree of aggression, hostility on social media and beyond, has been quite striking to me. I’ve had people spit at me in the street, push me, shout at me on trains, this sort of thing.

“So I’m now a bit edgy about any kind of public interaction. That has been a real surprise and disappointment to me.

“I mean it shows the passions that have been unleashed.”

ConHome: “Is it one of these things that you might rationally have anticipated, but you can’t emotionally until it actually happens? The reason you might rationally have anticipated it is you were Boris Johnson’s special adviser, so you’ll have seen the antipathy, hatred and venom that he was the target of. But until it happens to you, you can’t quite believe it’s happening.”

Frost: “Exactly, exactly. And I think if you’ve had time to get used to the idea it’s one thing. All of a sudden to find it there has been shocking.

“I mean I’m not saying I should be protected from hostile comment on social media. Don’t get me wrong. I definitely don’t think that. There are plenty of block and mute tools. I certainly don’t think we need an Online Harms Bill to protect me from comment.

“But the degree of personal hostility, and sometimes as I say face to face, has been striking. If anything stops me carrying on it’s more likely to be that and the knock-on than anything else. Which is a pity, really.”

The post Interview: Frost on Johnson’s future, tax cuts, admiring Cummings, Net Zero – and the abuse he has faced as he mulls his political future first appeared on Conservative Home.

Daniel Hannan: The Northern Ireland Protocol is designed only to cause Britain maximum pain

25 May

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.

The EU’s position on the Northern Ireland Protocol is based on a lie. Not a little fib, either, but a stinking whopper. Its stated justifications for the Protocol are very far from its actual motives. This point is easy to demonstrate. Indeed, it would be uncontroversial but for the bizarre culture war here which, fully six years after the referendum, still leaves a tribe of commentators always blaming Britain and never Brussels.

The lie is as follows. The EU publicly maintains that its sole concern is for what it calls “the integrity of the Single Market”. If so much as a single British pork pie were to cross into Co Cavan, it insists, the Customs Union would be prejudiced and its common rules made worthless. Eurocrats have repeated this assertion so often that I think even they have, on some level, come to believe it. Naturally their British devotees, who allow no criticism of European institutions, treat the claim as Holy Writ.

Yet every time some sententious British Europhile starts chuntering about “protecting the Single Market” or “the need for border checks somewhere”, plumes of smoke rise from his pants. The Protocol has nothing to do with these things.

Its real purposes are never publicly stated, but they can be clearly inferred. It is designed to divert Northern Ireland’s trade from Great Britain to the Republic of Ireland, so strengthening the case for a 32-county republic; to prevent the UK from gaining any commercial or competitive advantage over the EU; and, more generally, to give us a kicking for Brexit.

How can I be so sure? Because there is no other way to interpret the EU’s response to Liz Truss’s proposed amendments to the Protocol. At no stage has it identified, or tried to identify, how they would cause it the slightest harm. If its real concerns were its stated concerns, it would have no problem with accepting them. But it can’t do so without prejudicing its actual goals.

Consider what the UK is asking for. First, a “green channel” for goods whose destination is local, coupled with real-time access to the EU on all goods movements. Second, the right for firms in Northern Ireland that do not export their products to follow either UK or EU regulations. Third, no taxation without representation – in other words, the right for Britain to set its own VAT and corporation tax rates, subject to the level playing field clauses in the Trade and Cooperation Agreement (TCA). Fourth, arbitration by a neutral tribunal, in common with every other international accord.

These requests are eye-wateringly moderate. There is no way that they can harm the EU, and Eurocrats are not seriously suggesting otherwise. All their talk of “but you signed it” covers their inability to point to any actual danger to their interests. Even if we take seriously the claim about pork pies crossing into Co Cavan, that eventuality would be no more likely under the new arrangements than now. That is not to say that it is completely unthinkable – there is always the possibility that someone might carry food across – but that possibility exists today.

Nor can the EU credibly argue that the provisions it put in place for UK-EU trade through the TCA are good enough for everything except that negligible trickle that crosses the Irish border. The TCA, remember, contains reams of detail about state aid, competition, and environmental protection, as well as an arbitration system comparable to those in other treaties.

What, then, is the EU’s problem with Truss’s proposals? Why, as the world slides into economic crisis, is it contemplating the idea of a trade war? Why, even as Ukraine battles for its independence, do some European leaders portray Boris Johnson, rather than Vladimir Putin, as the main threat their continent faces? Contrast, for example, Emmanuel Macron’s statements about the UK (“Nothing is negotiable, everything is applicable”) with his statements about Russia (“We must never cede to the temptation of humiliation, nor to a spirit of revenge”).

The truth is that the EU positively wants the Protocol to cause Britain difficulties. It likes the fact that the arrangements scratch and chafe. It delights in carrying out 20 per cent of all the checks on goods entering the single market on the less than half of one per cent of goods doing so across the Irish Sea. It takes huge satisfaction in the 50 per cent increase in trade between Northern Ireland and the Republic, as suppliers avoid excessive bureaucracy. It revels in the fact that the ECJ is the ultimate arbiter – a sign of its continuing suzerainty over part of the UK and a way to taunt Brexiteers. As an EU official was caught saying on camera in 2019, “We finally turned them into a colony, and that was our plan from the first moment.”

Britain could theoretically respond by matching the EU’s obstreperousness. It could simply say: “We are leaving these arrangements but, as a courtesy to our friends in Ireland, we shall put up no border infrastructure. What you do on your side is your business.”

But it is not doing that. From the beginning, it was the EU that insisted a border was necessary to protect its Single Market (the UK is relaxed about “leakage” the other way). The row is, and has always been, about how far Britain should go to make the EU’s problem its own. Britain has bent over backwards to accommodate its neighbour, spending hundreds of millions of pounds on new customs systems to enable the EU to keep the border open and hoping that, in time, the EU’s grumpiness about Brexit would subside.

It hasn’t. And it is becoming clear that it won’t. The extraordinary situation created by the Benn Act after the 2017 election – a majority of British MPs saying that they would not leave except on terms that Brussels liked – gave the EU an unexpected advantage, which it seized. It has no intention of relinquishing that advantage now.

David Green: A referendum in Northern Ireland is the way to break the Protocol logjam

20 May

David Green is a trustee of Civitas.

A referendum could overcome the stand-off over the Northern Ireland Protocol. Instead of ending the Protocol against the will of the EU, our Government should ask the EU to accept the results of a referendum.

Under article 18 of the Protocol there is provision for democratic consent to be tested by December 2024. If the date were brought forward, the current stalemate could be resolved.

These are the current battle lines. The British Government agreed to checks at the Irish Sea, but objects to the manner of their implementation, which has been too heavy handed, leading to considerable additional costs. It has threatened unilateral abandonment of the Protocol.

The EU wants to prevent goods entering its market without full compliance with EU regulations for fear of undercutting EU producers.

In most international disputes there are usually the real objectives of the parties and the public positions they adopt to appeal to public opinion. The EU’s public positioning relies on two arguments.

First, that ending the Northern Ireland Protocol would endanger peace because it would require border checks between Northern Ireland and the Republic. Second, that if the British Government ends the agreement it would be ‘breaking’ its treaty obligations.

These arguments have considerable force despite relying on untrue claims. First, the UK does not want a border and so does not endanger peace. Second, there is provision in the treaty to end the arrangement in the event of serious ‘economic, societal or environmental difficulties’. Enforcing article 16 would not, therefore, be ‘breaking’ an international agreement.

But the real problem is the lack of democratic consent for the Northern Ireland Protocol, and the only way to test consent in a situation like this, is by referendum.

A mere vote in the Northern Ireland Assembly would not have sufficient democratic legitimacy. The main parties largely want to gain advantage at the expense of rivals and a referendum avoids the distortions of partisan rivalry. In any event there may not be a functioning assembly to hold a vote.

The Protocol provides for democratic consent to be tested within four years of the end of the transition period, namely by the end of December 2024. The method of testing is solely under the control of the Government and, in a document dated October 2019, it chose to hold a vote in the Northern Ireland Assembly.

However, the Assembly has proved to be as destructive of democratic legitimacy as the Weimar republic, chiefly because stubborn minority parties can block improvements. A referendum cuts through partisan recalcitrance by giving power to the whole electorate.

In any event, the possibility that the Assembly would not be functioning was foreseen in the unilateral declaration of October 2019. Paragraph 5 provides for the Government to establish an alternative mechanism for testing consent, if the preferred option of an assembly vote is not possible. At present no such vote would be possible.

Under the unilateral declaration Parliament could define a referendum as the alternative mechanism. However, that would mean holding a vote between October and December 2024, which would be too long to wait while feelings are running so high.

Instead of allowing itself to be subject to false accusations of endangering peace and breaking international treaties, the British Government should call upon the EU to accept the result of a referendum before the end of 2022.

This would put the it on a higher moral plane than the EU. If the EU opposes an early referendum it will not only be preventing the people of Northern Ireland from expressing their view, it will also be blocking a way of overcoming the prevailing logjam.

It would have to show itself in its true colours, namely an anti-democratic conspiracy by a ruling elite to pursue its imperial objectives regardless of public opinion, as revealed by its response to the Irish referendum on the Lisbon Treaty in 2008.

A referendum is consistent with our tradition that the people are the ultimate sovereign, and furthermore it would be consistent with the 1998 Belfast Agreement.

The Northern Ireland Protocol stipulates that the method of ensuring democratic consent must be compatible with the 1998 Belfast Agreement. The agreement envisaged a referendum on a united Ireland and, consequently, a referendum on the Protocol would be well within its constitutional expectations.

The Government is allowing itself to be outmanoeuvred. A referendum promises a mutually beneficial solution without harming our reputation for always seeking the peaceful resolution of international disputes.

Interview: Braverman says that what may emerge from Russia “is a basis for charges of genocide”

20 May

There is “emerging evidence now of genocide” in Ukraine, Suella Braverman, the Attorney General, says in this interview. She recently visited Ukraine, only the second British minister to do so, and describes how Britain is helping the Ukrainians to bring prosecutions for war crimes.

At home, Braverman says the Conservative Party needs to “stamp out this long tail of Blairism”, including “creations like the Human Rights Act and the equalities agenda, which has built up a whole industry of people who make their living from rights-based claims”, and has led to “a feeble approach to common sense, decency, British values”.

She is a passionate defender of British values:

“My background is one that is ferociously proud of Britain, Britain’s history, Britain’s welcome. My parents were born under the British Empire. They came to this country with a huge fondness for the British Empire. 

“What Britain brought to their countries, Mauritius and Kenya and India where we have our origins, was remarkable. And I get very saddened by this apology and shame, promulgated by the Left and commenced by the collective guilt that started under Tony Blair, that is pervading our society.”

In Braverman’s view Sir Keir Starmer  is “a child of Blairism in many ways, and that’s what’s very dangerous”  about the Labour Party under his leadership.

She wants the Conservative Party to replace its tree logo with the torch of liberty which was used in Margaret Thatcher’s day, opposes a windfall profits tax and would be happy to have her friend Lord Frost as “a colleague in the Commons”.

Braverman began by defending herself against attacks from the Left, and by insisting that the Government, and she in particular as Attorney General, are staunch upholders of the rule of law.

ConHome: “This hostility from the Left towards you: Nick Cohen has attacked you in The Observer for something you wrote on ConHome in 2019: ‘I was the shy Tory in my Chambers of ‘right-on’ human rights lawyers.’

“According to Cohen, your Chambers was actually full of ‘regular barristers fighting disputes about the licensing of pubs and betting shops, not human rights law’. What’s your response to all this?”

Braverman: “I’m not going to get into an argument about my old set of Chambers. What I will say is that in the late Nineties, when I was at university, when Blair had just won his landslide, it was unpopular to be a Conservative amongst under-30s.

“And I definitely felt that at university, although I was Chairman of Cambridge University Conservative Association, and I had my little close tribe of people.

“But the post-Blair years, in that immediate aftermath of 1997 to 2005 and even onwards, definitely I felt in professional circles in London among the university-educated, liberal arts community, there was definitely a Blairite bias.

“And actually that’s one of the challenges for us, as a 21st-century Conservative Party, we’re actually still dealing with the long tail of Blairism.

“And the legacy issues of that Blair era are what still motivate me to get into politics. I did stand for Parliament in 2005 [she was eventually elected for Fareham in 2015] so maybe I wasn’t that shy. I was able to put my head above the parapet.”

ConHome: “Peter Golds had schooled you, hadn’t he.”

Braverman: “Peter Golds is an old friend of my family and of mine, absolutely, yes. The force of nature that is Peter Golds. But yes, the long tail of Blairism, the creations like the Human Rights Act and the equalities agenda, which has built up a whole industry of people who make their living from rights-based claims, didn’t exist prior to Blair.”

ConHome: “This was also true of your Chambers then?”

Braverman: “I felt they were an excellent Chambers, and I was in the company of excellent lawyers. But I wasn’t out and proud as a flag-waving Tory at work, definitely.

“But I think they all knew I was a Conservative and they tolerated me. But there was no animosity or hostility and I’m not going to throw mud at them. They’re brilliant lawyers.”

ConHome: “Is Sir Keir Starmer a sort of continuation of this whole thing? He’s steeped in it, isn’t he?”

Braverman: “Yes, exactly, he is a child of Blairism in many ways, and that’s what’s very dangerous about a Labour Party under Keir Starmer.

“For the legacy of Blairism we will get quite a feeble approach to common sense, decency, British values.

“And the reasons why I’m a Conservative, my background is one that is ferociously proud of Britain, Britain’s history, Britain’s welcome. My parents were born under the British Empire. They came to this country with a huge fondness for the British Empire.

“What Britain brought to their countries, Mauritius and Kenya and India where we have our origins, was remarkable. And I get very saddened by this apology and shame, promulgated by the Left and commenced by the collective guilt that started under Tony Blair, that is pervading our society.”

ConHome: “The critique of you on the Left is that somehow you are a very political Attorney General, who’s sort of bending the law. So there’s this report in The Financial Times last week which suggested you were casting your net wider for advice on the Northern Ireland Protocol than you really should be.

“The accusation was that you’re going opinion shopping. What’s your response to that claim?”

Braverman: “Well I’m afraid I can’t talk about legal advice or how I’ve reached it, or indeed whether I’ve given it. That’s one of the frustrations of being in this role. I am gagged to a large degree.

“However what is completely normal practice is to consult specialists in their fields. We have gone to outside lawyers because they bring expertise and specialism.

“I think aspersions being cast on lawyers are actually very serious attacks on their professional reputations, when lawyers actually in private practice, they wouldn’t necessarily have a right to reply, and somehow trying to malign them is actually quite dangerous.

“Because lawyers take a case on the merits of the law, and they fight them for legal reasons, not because of political agendas. That’s what good lawyers do anyway.”

ConHome: “Pretty plainly this charge of opinion shopping you reject.”

Braverman: “Yes.”

ConHome: “And your reasoning on the Protocol, this is based on the idea that the Belfast Agreement trumps the Protocol because of something called “primordial significance”?

Braverman: “Again, I can’t get into the legal reasoning of any advice that may or may not have been given. What I can say is that the Foreign Secretary has said there is a lawful basis. We’re going to be issuing a statement in very high-level terms.

“But what we do know, in political terms, is very clear. There is a clear problem in Northern Ireland. I would say there’s an economic problem, the costs being imposed by the application of the Protocol on the trade of goods across the Irish Sea, the diversion of trade is another consequence of that.

“There are problems with the administration and the political institutions, the collapse of Stormont. And I would say there is a more profound challenge to the Good Friday Agreement that has been presented squarely by the Protocol.

“The Good Friday Agreement is premised clearly on the consent of both communities, and depends on a delicate balance and harmony between those two communities.

“The application of the Protocol has put that balance out of kilter and undermined the East-West balance in favour of the North-South balance.

“And therefore the Good Friday Agreement, the foundation of peace, is seriously affected by the operation of the Protocol.”

ConHome: “Without asking you to comment on the particular case, because you can’t, is ‘primordial significance’ a familiar concept in constitutional law?”

Braverman: “I don’t know where you’ve got that term from.”

ConHome: “Well it was quoted in the Financial Times story.”

Braverman: “Well there’s definitely a term in customary international law about the conflicts of treaties.  What’s been very interesting about the rule of law generally, and suggestions that this administration is undermining the rule of law – I take issue with what my friend David Gauke has written about extensively on ConHome – I actually think that these days there is a very high level of reverence for the rule of law.

“I would quote Sumption here. He talks about the empire of law defining our society. You see that by the prolific statutes that Parliament puts out, and regulation, and regulators. You don’t have to look very far in any sector before you come across rules, and checks and balances, and people who make their living trying to sniff out incidents where those rules are broken.

“From a governmental point of view, and on my watch, the government’s got a very good record in court. So it’s actively challenged, in judicial review, and a side issue is the expansion of judicial review that we’ve seen over recent decades, but we are challenged every day in hundreds of instances on all manner of decisions, and on the whole, and in the majority of cases, we win.

“The Good Law Project is one such example. They’ve taken it upon themselves as their raison d’être to challenge us regularly and actually in the majority of cases we’ve won, and they’ve been ordered to pay, at the last count it was £300,000 in our legal costs, and I think that was set to increase actually.

“So they are proving the point that the Government is adhering to the rule of law very very carefully on the whole in terms of our decision-making.

“And lastly I would say when it comes to the rule of law, and this expansion of judicial review, the debate, or the tension you could say between the rule of law and parliamentary supremacy.

“And I think that is an interesting debate, and jurists in the past have taken the view as to which one should prevail. Dicey is the founding father of our constitutional law and sets out how he defines the rule of law but also says that parliamentary supremacy is the foundation.

“He’s echoed by Thomas Bingham, former Lord Chief Justice, in his book, and I would say our modern-day leading mind on this is Richard Ekins.

“And they all say that parliamentary supremacy is the kernel, the founding element of our constitution. And that’s not a creation of the Common Law, that’s not made up by judges, that’s not something that statute can amend.

“I’ve got a quote from Thomas Bingham which I really love, which sums it up very well:

“The British people have not expelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges. The constitution should reflect the will of a clear majority of the people.”

“And I think that is where my heart and my legal mind lies. Of course there are many eminent jurists who disagree. Lord Steyn in particular in his decision on Jackson, Lord Hope and Brenda Hale. They are eminent lawyers who have taken another view, and would say that the rule of law acts as a curb and a limit on parliamentary supremacy.”

ConHome: “So you don’t feel the rule of law is undermined if members of the academy, as it’s known, argue that Parliament isn’t sovereign ultimately, and that the last word is with the judges?”

Braverman: “I actually think that partly because of our membership of the European Union, and Brexit, and this is the whole argument of sovereignty, actually, and taking back control – partly because of the Human Rights Act, which has acted, to some degree, as a check on parliamentary supremacy – Parliament, and our legislators, and therefore those representing the will of the people, have assumed a lesser position in our constitution.

“I think it’s now, post-Brexit, reclaiming our sovereignty and writing the next chapter in our history of democratic politics, it’s really up to Parliament and MPs to grasp the nettle of their new-found power.

“A reflection of that is the vibrant debate we have on some of these issues to do with trade deals. The fact that we can have those debates is a reflection of an empowered legislature, a renewed supremacy and sovereignty to Parliament, thanks to Brexit.

“The Rwanda deal, and immigration policy generally, we wouldn’t have been able to debate the substance of our migration policy were we still in the EU.

“The vaccine roll-out and how we were able to do that outside the auspices of the EU. That’s an argument of how our Parliament and our Government has been empowered to take decisions in its own right which have really paid off.”

ConHome: “You think it’s perfectly fine from the point of view of a consensus about the rule of law if some judges and members of the academy take the view that Parliament isn’t really sovereign, and there are certain human rights fundamentals that judges in the last resort must pronounce on?”

Braverman: “I actually think that most judges today don’t want to be dragged into the arena of making these decisions…”

ConHome: “It’s well known you were a Brexiteer. You weren’t just a Brexiteer. You were a Spartan. You voted against Theresa May’s deal three times. You were there with Steve Baker and Mark Francois and the rest of the resistance.

“So tell us a bit about your thinking on that.”

Braverman: “I’m very proud to have been a Spartan, and I think that what’s remarkable about what the Spartans did is that at the time it was incredibly hard. I’d go so far as to say the vote on MV3 was the hardest decision I made in my professional life, because I felt so torn.

“And I know that several of my fellow Spartans felt the same way. For me I had resigned already, I had resigned in November of 2018 over the terms of the deal, and it had been set in stone by that point, and it was clear the Northern Ireland Backstop was fundamentally undemocratic…

“As it got closer to MV3 many people were changing their minds and it was becoming very hard to sustain that position, particularly in the face of accusations of ruining Brexit, the Spartans are killing Brexit, we’re going to end up with a second referendum and Corbyn’s going to get in.

“Accusations of disloyalty to the party. So that was very heavy social and political pressure… It was a very difficult time.

“But I do believe it was thanks to that rebellion that the deal didn’t go through, that Boris secured an 80-seat majority, and actually was able to get Brexit done. He’s the one who started Brexit, this massive, important, transformative mission for our country of which we are reaping many benefits.

“And I think it’s right that we support him in tidying up this outstanding issue of the Protocol now.”

ConHome: “Clearly Brexit and self-government and all that was very important to you. Can you just say a bit more about how your approach to politics developed as you were growing up.”

Braverman: “Well I think there’s definitely this strand of being very grateful to and having a deep love for this country, born out of my parents’ experience of coming here with nothing from former British colonies, my father was effectively exiled from Kenya as part of the Asian diaspora, my mother was recruited as a nurse and came here [from Mauritius] to work for the NHS.

“And they as I said had a real admiration for what Britain meant to them in their childhoods. Britain brought the rule of law. Britain brought statecraft. Britain brought military traditions. Members of my mother’s family fought in World War Two with the British in Egypt.

“Britain brought the civil service. My grandfather on my father’s side worked for the civil service in Kenya. Britain brought huge amounts of good. I think it was Cambridge University that was the examining board for my mother’s O levels. And of course the English language.

“They came here with huge admiration and a sense of great luck and they instilled that in me. Growing up, I come from Wembley, I went to school in Harrow, again your ConHome piece, I really loved what you wrote about the Asian vote wot won it, and I really relate to that.

“What’s wonderful, and I know I’m harking back to the days of empire and the mother country, but there’s a real visceral connection through my parents, growing up, admiring the Queen, and coming to this country, the country offering them opportunities and security.

“And then myself being brought up in a part of London where many Asians congregated, and this is what the Asian vote in Harrow, Wembley, north-west London is defined as, and this is what you picked up on in your column, why they are in growing numbers supporting the Conservatives.

“They are plucky. They are resilient. They are aspirational, ambitious. I’m very proud of the cliché of the Asian doctor or the Asian pharmacist or the Asian lawyer, and we are all products of plucky, pushy Asian parents who wanted to get their kids into the professions, into med school or law school.

“And you see that in modern Britain today. You see that in the Cabinet. Isn’t it remarkable, a Chancellor, Home Secretary, a Health Secretary, a Business Secretary, an Education Secretary, a COP 26 Secretary, an Attorney General, we all have linkages to Britain’s past, and we are now Britain’s present and Britain’s future.

“And that’s informed my conservative philosophy. That pride in our nation, but also the resilience of the individual against the odds.

“And I think my parents were very, very keen to invest in education. The little they had, they put into my education after starting in a state school, in the 1980s beset by strikes. My mother, a huge admirer of Margaret Thatcher, put me into the independent sector.

“My father had some years unemployed in the recession in the 1990s. We really experienced the pain of unemployment. It’s morally debilitating. As the so-called breadwinner in a family it’s crushing.

“And it was reskilling, and getting back into the workplace, that restored his sense of value in our country, and in our family…

“I get very frustrated with these leftie activists who want to decolonise our curriculum and cancel our culture and pull down statues.”

ConHome: “Is this why Ukraine has been such a big thing? Because people feel instinctively these are people who want to have their own country, have their own sovereignty…”

Braverman: “Yes, this is a battle for western civilisation, western values like the rule of law and democracy and civil liberties. Having visited Ukraine very recently, I’ve been working with the Ukrainian Prosecutor General Iryna Venediktova for a few months since the conflict started, and I’ve wanted to help her in her mission to keep justice going and prosecute war criminals.

“The Ukrainians are very keen to move quickly, which is quite remarkable. In all of the instances of war crimes prosecutions in the past, they’ve all pretty much started after the end of the conflict.

“Here the conflict is live and they are already beginning their legal processes, which is amazing. They’ve got 11,000 cases, 5,000 suspects. They’ve got hundreds of detained prisoners of war. And just last week she commenced her first prosecution, against a young commander accused of killing an unarmed civilian.

“This is very powerful as a message that people implicated in this illegal war will face very harsh consequences. So I think it’s brilliant. I want to help her on that mission.

“The first thing I’ve done is appoint an expert, Sir Howard Morrison QC, a former war crimes judge. He is working with her, at my behest, on an almost daily basis, advising and supporting her.

“Howard and I went to Ukraine last week to see more close-up where the gaps are and how we might help.

“We’re seeing some emerging evidence now of genocide. I would not want to say definitively, from a legal point of view, but there’s definitely genocidal talk from political leaders in Russia, like eradicating Ukrainians, and we’ve got some stories of forced deportation.”

ConHome: “We’re following very closely the conversation in Russia about genocide, because it’s possible that what may emerge from that is a basis for charges of genocide.”

Braverman: “It’s possible. It’s possible.”

ConHome: “You said this morning there might be in certain circumstances a legal basis for action from this country on cyber. Could there possibly be a legal basis for supplying the Ukrainians with tactical nuclear weapons?”

Braverman: “In the context of cyber what I’m stating in my speech today is that there’s currently a vacuum in terms of rules and frameworks that govern what’s acceptable and unacceptable.

“There’s a principle of non-intervention. And if you were on the receiving end of a hostile activity in cyber space you would have a legal right of retorsion, or counter-measures, which is to take action, proportionate and necessary to remedy the negative effects.

“Very difficult to say yes or no. It would all depend on whether it’s a proportionate response.”

ConHome: “Do you have a view on a windfall tax?”

Braverman: “I don’t think a windfall tax would be a great idea, if I’m honest. I think that we want to incentivise investment. Profits are not an enemy of Conservatives. Profits mean more investment. Profits mean more research. Profits mean more jobs.”

ConHome: “Would you welcome your former colleague, Lord Frost, in the House of Commons?”

Braverman: “Listen, I worked closely with Frosty, he’s a good friend of mine. Yes, having him as a colleague in the Commons would be brilliant.”

ConHome: “Someone said somewhere, this may be quite wrong, that you’d got a view on the party’s logo?”

Braverman: “Oh yes, absolutely, right. So the old logo, the torch of liberty, wouldn’t it be great to bring that back?

“I’m not saying I don’t like the tree, but if we really want to, as I say, stamp out this long tail of Blairism, and define ourselves as Conservatives who value liberty, who trust individuals, who know that it’s responsibilities and duties that bind us as communities, as a country, as families, which actually bring that collective contentment, that’s why I’m a Conservative, then yes, let’s try the torch of liberty.

“I think one of the challenges for us as Conservatives is to make sure we get back to this more responsibility-focussed approach to our responsibilities and our society.

“So when it comes to human rights, and the Equality Act, for example, and I think that those are Blair creations generally, and we are seeing insidious effects of some of the expansionism of the interpretation of rights, this is some of the work that Dominic Raab is doing, I’ve worked with him on this, and we’ve worked closely on the British Bill of Rights.

“But we’ve also seen on the transgender issue, we’re getting into identity politics, which is very divisive, where people’s personal characteristics as defined in rights documents have now become fragmenting of the fabric of our society, and where you’re getting clashes and a lot of uncertainty.

“And that’s why this instance of the girl being thrown out of the school is outrageous. What’s really worrying is there’s a lot of confusion, and actually the Equality Act, there is no duty on schools – legally if you’re under-18 you can’t change sex – so if you are a male child who is saying I’m a trans girl, legally they are still treated as a male child, as a boy, and schools do not need to go to this extreme position of throwing other children out of schools to accommodate this group.

“I believe in aspiration, and that’s why I helped to cofound Michaela School, with Katharine Birbalsingh and Anthony Seldon, I was Chairman of the Governors for several years until we got our first Ofsted rating which was Outstanding, and that is a great template of what high standards, restoring the authority of the teacher, a traditional curriculum, and a zero tolerance approach to discipline can achieve, because we have turned around children who came to us at 11 with a reading and numeracy age of way below where they should be.”

The Northern Ireland Protocol. Does Johnson’s ‘sensible landing spot’ really exist?

17 May

“There is without question a sensible landing spot in which everyone’s interests are protected. Our shared objective must be to the create the broadest possible cross-community support for a reformed Protocol in 2024.”

So claims Boris Johnson in the peroration of his 2,200-word essay for the Belfast Telegraph setting out his pitch for resolving the row with Brussels and getting Northern Ireland’s political institutions back on their feet. Again.

Is it true? It’s very hard to say, because what looks superficially like a question for a lawyer seems better suited, upon wading through the arguments for long enough, to a theologian.

Political theology

Each side’s technical arguments rest on (or indeed, basically gild) a set of principles, assumptions, and assertions which cannot be empirically resolved by appeals to expertise.

Instead, Ireland and the EU have outmanoeuvred Britain by ‘bargaining with their right brain‘; that is, framing popular understanding of the dispute. (Not least because the UK has, until very recently, not obviously been trying.)

For example, take the claim that Government ‘threatens the peace’ by taking action against the Protocol.

In the scenario laid out by its critics, it would be the EU that set up a hard border (in response to threatened market distortions of which there is no evidence) and terrorists which attacked it. Nonetheless, the full weight of moral culpability in this scenario is widely held to rest on London’s shoulders.

Suffice to say, no volume of clever technical argumentation will dig you out if you accept the bottom of that hole as your starting point.

That the UK are still losing this battle is evident in Johnson’s article, for example where he says that:

“We insisted throughout that there would be no scenario in which a hard border would be allowed to emerge. And we have delivered that 100 per cent, as we said we would, protecting in full the rights that were enshrined in 1998.”

There is no treaty right to an invisible commercial border between Northern Ireland and the Republic, dated to 1998 or any other year. The idea the Belfast Agreement would contain one – and one that would if necessary overrule the free trade portions of the Act of Union, at that – is absurd. The whole thing is a meme.

But London swallowed it hook, line, and sinker, and it has crippled the British negotiating position from the start. (This may not have been entirely accidental.)

Johnson’s essay does mark a belated effort to try and introduce some narratives more useful to the British case, especially with regard to its actual obligations under the Belfast Agreement.

But there seems little point complaining that “some feel that their economic rights as members of the United Kingdom are threatened” when it was his Government that legislated to repeal the economic parts of the Act of Union.

Nor is it obvious how a settlement can be said to treat both sides equally when one side’s priorities remain, in his own words, of “paramount importance” over those of the other.

Landing spot?

The happier side of this dynamic is that if the EU decides it is minded to deal, there will almost certainly be a deal. Brussels has not historically allowed the niceties of its internal rules to stand in its way.

It does not follow, however, that the “sensible landing spot” envisioned by the Prime Minister actually exists, at least not yet.

Sam Lowe, a trade expert and author of the Most Favoured Nation newsletter, has handily compiled a list of the UK’s specific demands. The Institute for Government has also compared a handy side-by-side list of the British and European positions on various points of dispute.

And despite the rhetorical pretence that the Protocol was always the only possible outcome of Brexit, there has to date been some movement in some areas.

The Government’s tactic of unilaterally extending grace periods on items such as chilled meats, for example, has seen them baked into the status quo; Lowe write that: “everyone, including on the EU side, knows that these grace periods and derogation are not going anywhere”.

Likewise, the IfG acknowledges that on medicines the EU has tabled proposals which represent “a significant departure from its original position”.

But London and Brussels remain a long way apart on a lot of issues both economic (VAT, customs) and constitutional (the role of the European Court of Justice).

And as the Institute of Economic Affairs notes in their most recent briefing, even the partial implementation of the current Protocol is creating “significant diversion of trade”, which the Protocol in theory “expressly sought to avoid”.

Tied to the text

Moreover, for now the EU insists that it will not reopen the text of the Protocol.

This is obviously a major barrier to either substantive reform or (perhaps as important, as far as Unionist sentiment is concerned) the appearance of it. Even those on the British side aiming to work within the Protocol, such as Roderick Crawford, concede that the text needs to be at least “amended” in certain areas.

In others, a layman’s reading of the text of the Protocol seems to suggest it could be read any which way. For example Clause 2 of Article 5, which governs whether or not goods entering Northern Ireland should be subject to EU customs, sets out the criteria by which a Joint Committee will draw up a risk assessment. It then concludes:

“In taking any decision pursuant to this paragraph, the Joint Committee shall have regard to the specific circumstances in Northern Ireland.”

That line could mean anything. London could plausibly argue that the Province’s “specific circumstances” justify its bid to reverse the burden of evidence and have goods exempt from EU customs absent a positive determination that they pose a risk to the Single Market. Brussels could argue the opposite.

Leverage

Such vaguery perhaps allows wriggle room for the Protocol to become one of those “living documents” whose seemingly solid provisions melt into air as the moment requires.

But in such cases, they tend only to do so as suits whichever party has the upper hand. The Protocol’s provisions will thus be granite until the EU feels the need to concede something.

This is why the threat of legislation to allow the Government to act unilaterally is potentially so important – and the fact that Johnson and Liz Truss seem to be caught up in a briefing war over it, rather than presenting a united front, so utterly lamentable.

We ended up with the Protocol because Irish and European negotiators consummately outplayed a succession of hapless, culpable, or simply uninterested British counterparts on the Northern Irish question. Nothing about the Government’s swithering over Article 16 since the last election will have convinced them that their opponents have upped their game.

But the key to unlocking a deal almost certainly lies not in some legal gotcha, but in shifting Brussels’ perceptions of the balance of risks.