David Gauke: Johnson’s Covid policy – and why it’s opening up a rift between him and his traditional Tory supporters

26 Sep

David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at last year’s general election.

For an amendment of no legal force that may not even be called, Graham Brady’s proposal that there should approve in advance any Covid-19 restrictions is of real significance.

On the face of it, it is an amendment that is more about process than substance – the extent to which Parliament, rather than just the executive, has a say on future restrictions. But in reality, it also exposes the divide between the position of the Government – and the Prime Minister in particular – and many of his Parliamentary colleagues on how far we should go in attempting to stop the spread of the virus. For the first time in many years, Boris Johnson’s position puts him at odds with the instincts of many on the right of the Conservative Party. What is more, his position appears to put him at odds with his own instincts.

The Coronavirus crisis has been immensely difficult for the Prime Minister. In part, that has been due to his own ill-health that took him out of action at the peak of the virus, and from which he has made a slow and painful recovery (although, from what I hear, he is now physically in good shape).

t has also been a crisis that has exposed his longstanding inability to grasp detail. A Prime Minister was needed to get Whitehall focused on the virus in February, identify and prioritise testing and tracing and spot that the Department for Education was heading for a fall with its approach to exam results. On all these issues, he appears to have been absent.

However, I suspect that the most challenging aspect of recent months for Johnson is that he has felt compelled to do things that alien to his normal approach to life. By restricting the freedoms of his fellow citizens, he is not acting like the great admirer of Mayor of Amity Island, the foe of the doomsters and gloomsters, the critic of pettifogging bureaucrats, the ‘freedom-loving, twinkly-eyed, Rabelaisian character’ for whom Toby Young – and many others – voted.

Why has this happened? His own experience of the virus may be a factor, but one can only conclude that he has been convinced that there is a real risk that, without further action, the virus will spread more widely – including to the vulnerable, and that this will result in very large numbers of deaths. Given the widely-held view that we locked down too late in March, this would not just be a health disaster but a political one as well.

His libertarian critics argue that these measures are panicked and unnecessary. There is anger over the projections of a weekly doubling of cases (a much worse trajectory than France and Spain have followed). Some point to Sweden or Brazil – countries that have been hit hard, but now have falling or stable levels of infection – to argue that herd immunity comes quicker than we previously thought, perhaps because of T cell immunity.

Maybe these critics are right; I certainly hope that they are. There are reputable scientists who are making the case, and we all want to believe those that are telling us that it is all going to be alright. But there are also reputable scientists who are making the opposite case, who are arguing that we should be tightening up further and faster (a view, incidentally, that has a lot of public support).

This is where the job of Prime Minister is a difficult and lonely one. I think we all know where Johnson would stand on this issue if he were still a Daily Telegraph columnist. We can also take a good guess as to his approach if someone else was Prime Minister, and he was an ambitious backbencher with a desire to free the ball from the back of the scrum.

But he is not a columnist nor a backbencher but the person who has t person who has to make the decision. And unlike some decisions that a Prime Minister might make, if he gets it wrong the consequences will be both enormous and very quickly apparent to all.

So when faced with advice that the virus was now spreading strongly and that, without intervention, deaths would soon rise substantially, Johnson acted in much the same way as any recent Prime Minister would have done. Maybe his libertarian instincts softened some of the new restrictions, but essentially he has made a decision to be risk averse; to be conventional.

This is not the first time during the pandemic that he has reached that conclusion. But it has also been obvious that this sits uneasily with him. He does not like restricting people’s liberties (not a bad quality, by and large) and he likes to tell people good news. He has promised we would have this licked by July and then by Christmas. He has urged us back to our offices when it was predictable (indeed, predicted  that he would soon have to reverse that advice. Even on Tuesday, he seemed to consider it a matter of national pride that we, as a great freedom-loving people, have not been following the rules. The old Johnsom instinct is hard to suppress.

The consequence of this internal conflict is inconsistency and muddled messages. His natural supporters – those who value freedom and independence from the State and are most sceptical about the advice of experts – are in revolt. This has manifested itself in signatures for the Brady amendment. There are signatories from across the Conservative Party spectrum, but they notably include big Brexiteer beasts such as David Davis, Iain Duncan Smith, Steve Baker and Bernard Jenkin. These could be dangerous opponents.

Of course, Covid is not the only issue where the Prime Minister is going to have to make a big choice in the next few weeks. Does he make the necessary concessions in order to conclude a Free Trade Agreement with the EU before the end of the transition period? Yesterday, James Forsyth suggested that a deal was close and that the UK might take a more flexible approach to the negotiations, choosing to fight some battles in the future (‘you have to make it through the short term to get to the long term’ says James, using language that will sound very familiar to anyone who served in Cabinet with Michael Gove in 2018-19).

The piece suggests that the Prime Minister is ‘totally focused on Covid’. But he will soon have to make a choice. On the one hand, he will be receiving advice from officials that the adverse consequences of No Deal are very significant, especially for a fragile economy. On the other hand, his instincts presumably tell him that this is all over-stated gloomsterism.

The Prime Minister knows that the instinct to take a risk, to chance it, to tell the experts to go to hell, is very strong both within himself and amongst many of his Parliamentary colleagues. He is already defying those instincts on one issue. If he is to take the necessary steps to get a Brexit deal (and I hope he does), he is going to have to defy those instincts on a second issue, too. Given that he is already in danger of losing his hold over his traditional allies, it is not obvious that he will.

Garvan Walshe: Four actions we can take to help Belarus achieve its freedom

24 Sep

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

The streets of Minsk, bathed in September morning sun, were absolutely empty yesterday. Not a soul under the clear blue sky. A sudden U-turn towards tough anti-Covid policies? Belarus making it to the world cup final? Of course not.

The real reason was that Aleksandr Lukashenko had decided to get himself reinaugurated as president – weeks early – and in secret.

Lukashenko’s regime has been shaken by almost two months of street protests following an election, in which he faced off against Svetlana Tikhanovskaya, whose husband he had imprisoned in order to take him out of the race.

The rigging was farcical: observers recorded a middle-aged woman climbing down a ladder outside a polling station with bags of surplus ballots (a ballot-stuffing plan had gone awry when too many voters turned up, and space had to be created for their votes), and nobody believed the 80 per cent vote share officially recorded. Those deserted Minsk streets must have been filled by everyone who actually voted for him.

Lukashenko’s regime, in place since the Soviet Union collapsed, and so unreformed that its security service is still called the KGB, is looking very vulnerable.

Regime thugs initially responded to peaceful demonstrations with extreme violence, but have found protests led by women to be much harder to contain. Balaclava-clad men have been snatching protesters off the streets, but predictably just caused the protests to grow further.

Vladimir Putin has offered the Belarusian regime $1.5 billion, and perhaps covert riot-control support, but appears to have balked at more decisive intervention. Despite rigging his own constitutional referendum to allow him to stay on beyond the term limits he himself included in the previous version of Russia’s fundamental law, Putin finds himself on the ropes. Covid has dramatically reduced oil and gas demand, while protests have taken off, not only in Moscow, but across the country. It was on a flight back from one of those protests, in Siberia, that Alexei Navalny collapsed with Novichok poisoning. The last thing Russia needs right now is another rebellious province.

In these revolutionary moments, the survival of the regime depends on projecting a sense of “inevitability”, Rob Thomas, an Eastern Europe analyst, tells me. Legitimacy has long been forfeited, and the state lacks the sheer repressive capacity to put down such a large uprising. The best he can hope to do is to try and outlast the protesters, and hope the winter cold can send them home.

As much as Putin and Lukashenko might want to believe their own propaganda that this revolution is a CIA or George Soros plot, it is in fact a domestic movement to overthrow an unaccountable leaders who has overstayed his welcome. The pressure for change is coming from inside Belarus. Our job is to keep it in the international spotlight.

As well what might be called the standard toolkit – applying Magnitsky sanctions to regime-connected figures, clamping down on money laundering, preventing the export of surveillance and internet censorship technology, and stepping up funding of civil society through the Westminster Foundation for Democracy – there are specific things that can put pressure on Lukashenko’s regime.

First, Belarus has a surprisingly successful tech sector, responsible for over five per cent of GDP. Such work can be done anywhere, so we can help Belarusian firms and programmers set up legal structures to keep their earnings outside Belarus while continuing to work where they are. Taxes due on this activity could be held in trust, and released to Belarus after it holds free and fair elections.

Second, visas should be relaxed to allow Belarusians who want to work and study abroad to come to the UK and also set up businesses with minimal red tape, on the same terms as the Ankara Agreement used to allow for Turkey.

Third, to blunt Russia’s energy weapon, we should work with Lithuania in particular to enable gas pipelines to Belarus to flow in reverse, and, together with other democracies, provide financial guarantees for liquified natural gas to be sent to a transitional Belarusian government.

Fourth, if further pressure is needed to create pressure for a transition to free and fair elections we could recognise Tikhanovskaya as an interim legitimate president, as part of a negotiating process that would allow both her and Lukashenko to stand down in favour of a neutral but democratic figure.

The empty streets and secret inauguration show that despite Cyprus blocking EU sanctions (an action surely unconnected to the large quantities of Russian money deposited in his banks) Lukashenko is running scared. If we can deny him international legitimacy, and put further economic pressure on the regime, we can play our part in supporting Belarusians’ struggle to choose their own future.

Garvan Walshe: Four actions we can take to help Belarus achieve its freedom

24 Sep

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

The streets of Minsk, bathed in September morning sun, were absolutely empty yesterday. Not a soul under the clear blue sky. A sudden U-turn towards tough anti-Covid policies? Belarus making it to the world cup final? Of course not.

The real reason was that Aleksandr Lukashenko had decided to get himself reinaugurated as president – weeks early – and in secret.

Lukashenko’s regime has been shaken by almost two months of street protests following an election, in which he faced off against Svetlana Tikhanovskaya, whose husband he had imprisoned in order to take him out of the race.

The rigging was farcical: observers recorded a middle-aged woman climbing down a ladder outside a polling station with bags of surplus ballots (a ballot-stuffing plan had gone awry when too many voters turned up, and space had to be created for their votes), and nobody believed the 80 per cent vote share officially recorded. Those deserted Minsk streets must have been filled by everyone who actually voted for him.

Lukashenko’s regime, in place since the Soviet Union collapsed, and so unreformed that its security service is still called the KGB, is looking very vulnerable.

Regime thugs initially responded to peaceful demonstrations with extreme violence, but have found protests led by women to be much harder to contain. Balaclava-clad men have been snatching protesters off the streets, but predictably just caused the protests to grow further.

Vladimir Putin has offered the Belarusian regime $1.5 billion, and perhaps covert riot-control support, but appears to have balked at more decisive intervention. Despite rigging his own constitutional referendum to allow him to stay on beyond the term limits he himself included in the previous version of Russia’s fundamental law, Putin finds himself on the ropes. Covid has dramatically reduced oil and gas demand, while protests have taken off, not only in Moscow, but across the country. It was on a flight back from one of those protests, in Siberia, that Alexei Navalny collapsed with Novichok poisoning. The last thing Russia needs right now is another rebellious province.

In these revolutionary moments, the survival of the regime depends on projecting a sense of “inevitability”, Rob Thomas, an Eastern Europe analyst, tells me. Legitimacy has long been forfeited, and the state lacks the sheer repressive capacity to put down such a large uprising. The best he can hope to do is to try and outlast the protesters, and hope the winter cold can send them home.

As much as Putin and Lukashenko might want to believe their own propaganda that this revolution is a CIA or George Soros plot, it is in fact a domestic movement to overthrow an unaccountable leaders who has overstayed his welcome. The pressure for change is coming from inside Belarus. Our job is to keep it in the international spotlight.

As well what might be called the standard toolkit – applying Magnitsky sanctions to regime-connected figures, clamping down on money laundering, preventing the export of surveillance and internet censorship technology, and stepping up funding of civil society through the Westminster Foundation for Democracy – there are specific things that can put pressure on Lukashenko’s regime.

First, Belarus has a surprisingly successful tech sector, responsible for over five per cent of GDP. Such work can be done anywhere, so we can help Belarusian firms and programmers set up legal structures to keep their earnings outside Belarus while continuing to work where they are. Taxes due on this activity could be held in trust, and released to Belarus after it holds free and fair elections.

Second, visas should be relaxed to allow Belarusians who want to work and study abroad to come to the UK and also set up businesses with minimal red tape, on the same terms as the Ankara Agreement used to allow for Turkey.

Third, to blunt Russia’s energy weapon, we should work with Lithuania in particular to enable gas pipelines to Belarus to flow in reverse, and, together with other democracies, provide financial guarantees for liquified natural gas to be sent to a transitional Belarusian government.

Fourth, if further pressure is needed to create pressure for a transition to free and fair elections we could recognise Tikhanovskaya as an interim legitimate president, as part of a negotiating process that would allow both her and Lukashenko to stand down in favour of a neutral but democratic figure.

The empty streets and secret inauguration show that despite Cyprus blocking EU sanctions (an action surely unconnected to the large quantities of Russian money deposited in his banks) Lukashenko is running scared. If we can deny him international legitimacy, and put further economic pressure on the regime, we can play our part in supporting Belarusians’ struggle to choose their own future.

Bill Cash: We would be within our rights to override the Withdrawal Agreement. And in any event, the EU itself is a law-breaker.

21 Sep

Sir William Cash is Chair of the European Scrutiny Committee, and is MP for Stone.

Disraeli, the inspiration of One Nation, predicted in 1838 that “the continent will not suffer England to be the workshop of the world”. He wrote Sybil – or A Tale of Two Nations, mirroring much today. Our manifesto in the general election to level up the more deprived areas in Britain demonstrates why the whole United Kingdom must be freely competitive in global trading – guaranteeing our jobs and businesses (and given Covid).

The EU pursues a cardinal principle: that we must not benefit from Brexit. Its origins lie deep in the supranationality of the EU treaties themselves and, originally, of the Commission and the European Coal and Steel Community. In Sheffield, I witnessed the destruction of our steel and coal industries, thanks to the unfair and discriminatory EU state aid regime.

Recent misconceptions have been generated in Parliament and outside regarding our compliance with international law. This comes in many shapes and sizes, and is often 60 per cent politics, 40 per cent law. The Internal Market Bill provides that the Government may need to override Withdrawal Agreement provisions derived from bad early negotiations.

There are dozens of documented overrides of international treaties worldwide by democratic countries without penalty. According to the German Federal Constitutional Court in 2015, international law leaves it to each state to give precedence to national law.

There are numerous statutory precedents in the UK, such as the Finance Act 2013, relating to anti-abuse tax powers, and whether UK prisoners could vote in elections. As the Attorney General stated in her published legal position, Parliament’s capacity to override international agreements was unanimously approved by the Supreme Court in the Miller case, and through clear “notwithstanding” provisions in Section 38 of the European Union Withdrawal Agreement Act 2020.

Lord Diplock ruled in 1968 in a Post Office case that Government “has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before”. Laying a Bill is not a breach of international law. and is privileged. If a treaty is entered into on the reasonable assumption that a state of affairs would exist which does not transpire, the treaty is voidable.

The Withdrawal Agreement was written on the basis of recognising our sovereignty – which has not happened. This UK Internal Market Bill is a necessary insurance policy preventing us from subjection to EU jurisdiction, and ensures the necessary competitiveness upon which the jobs and businesses of every voter in every constituency depends, with our own state aid rules.

The EU itself frequently violates international law, as demonstrated by its own fishing policies in the waters of occupied Western Sahara.

Likewise, the EU’s penchant for instructing member states to defy Security Council rulings. So, too, sending migrants back to North Africa and Turkey. In 2010, the EU broke the Lisbon Treaty. Christine Lagarde admitted that “we violated all the rules” over the Greek and Irish bailouts. The EU is now unilaterally changing the bilateral Channel Tunnel Treaty without our being able to prevent it. The EU has demanded jurisdiction over crucial aspects of UK sovereignty, despite our lawful exit, as a precondition to concessions on trade. It has threatened to use WTO’s “most favored nation” principle against the UK – contrary to state practice, core principles of world trade and requirements to negotiate “in good faith”.

Look, too, at the track record of EU Member States. Germany blatantly breached international law when, during the EMS in the 1970s, it released the Bundesbank from the duty to intervene against the dollar. The then Chancellor, Helmut Schmidt, stated: “we breached applicable international treaty law, the IMF treaty, in multiple ways. We have neither complied with all the rules, the procedural rules of the treaty, nor have we complied with the substantive provisions.”

Angela Merkel suspended the Dublin Regulation unilaterally in August 2015, letting into Germany up to 600,000 Syrians. In 2020, Germany’s highest court ruled on the European Central Bank’s public sector purchase programme, subordinating EU law to German law. The EU took no action.

The undemocratic European Commission threatens to take legal action against the UK for what is not even an established breach of international law. They dare to tell our democratic sovereign Parliament to abandon essential proposals in this Bill. What a nerve.

Ryan Henson and James Rogers: The reformed Foreign Office has a fresh chance to counter China and Russia

21 Sep

Ryan Henson is Chief Executive Officer of the Coalition for Global Prosperity. James Rogers is Director of the Global Britain Programme at the Henry Jackson Society.

Earlier this month, the Department for International Development (DFID) and the Foreign and Commonwealth Office (FCO) merged into the Foreign, Commonwealth and Development Office (FCDO), a new “superministry” charged with representing and projecting British interests around the world.

Appearing before Parliament’s powerful Liaison Committee this week, the Prime Minister said that within the new department, overseas aid should serve ‘the diplomatic, the political, and the values of the UK.’ We wholeheartedly agree, for we believe the UK must continue to be a force for good in the world.

Indeed, as the international system starts to experience profound geopolitical change – a shift that looks set to accelerate over the next decade – it is in all our interests that the integration of Britain’s foreign and development policy be a success.

According to Britain’s most recent national security assessment – The National Security Capability Review (2018) – the world is witnessing “the resurgence of state-based threats, intensifying wider state competition and the erosion of the rules-based international order”, which has made “it harder to build consensus and tackle global threats.” Likewise, the assessment also emphasised the detrimental impact of climate change.

Geopolitics can no longer be ignored. For the 700 million people who still live in extreme poverty – many in dysfunctional or failed states – will be the first to suffer as authoritarian, revisionist powers continue to expand their influence or if climate change accelerates.

Make no mistake: Russia and China have burst onto the international scene over the past decade. They are deeply authoritarian powers, and their vision of how the world should look is very different to our own. Both regimes see democratic values and liberal principles as dangerous to their own existence. Both seek to extinguish them.

This can be seen by Russia’s “non-linear” offensives in Ukraine and Syria. In Ukraine, the Kremlin has fermented civil war to prevent the country from opening up and moving closer towards the European Union and NATO. In Syria, Russia has engaged in the country’s decade-long civil war to boost its own position in the Levant and broader Middle East and prevent reformers from gaining in influence.

Meanwhile, China has weaponised international development with its Belt and Road Initiative (BRI), as well as its geo-economic and geopolitical push into Africa and South America. Underpinned by a US$1 trillion budget over the next thirty years, China’s efforts through the BRI provide investment for developing countries, while seeking to capture their political elites so they support, or at least do not challenge, China’s broader international objectives. This has often been achieved through the establishment of so-called “debt traps”. By providing developing countries with loans they will never be able to repay, China is able to compel them, often by stealth, into dependency.

While China’s BRI could not be more different to Britain’s lifesaving overseas aid work, it may have had more impact. It is certainly more well-known. With the creation of its new world-facing superministry, the UK ought to strengthen its position as an effective force for good in the world.

While the FCDO should retain and entrench DFID’s lifesaving development expertise, it should also better ensure that Britain adapts to both prepare for, and combat, the emerging threats to the world’s most vulnerable people. If the UK is to stand up for them, it must also stand up for their right to determine their own destiny, free of the threat of climate change and interference from foreign progenates.

The FCDO would therefore do well to initiate an internationally recognised programme of its own – an “International Prosperity Initiative” – to provide an alternative to the “aid” agendas of authoritarian rivals. In practise, this would mean the UK continuing to lead the fight against preventable diseases. Over the past 20 years DfID has helped defeat Ebola in Sierra Leone, saved 6.2 million people from dying of malaria, and immunised 67.1 million more children against preventable diseases. The emergence and spread of Covid-19 only makes this work more important.

It would also mean continuing to support girls’ education, so that the next generation of women are more able to participate as equals in society. The FCDO could make girls in school safer by rapidly and significantly ramping up efforts to eliminate violence in schools, while supporting governance, taxation, and redistribution projects that will be essential to lifting the poorest women out of poverty.

At the same time, an “International Prosperity Initiative” would seek to revolutionise poverty alleviation by combating environmental degradation and promoting more inclusive, open, and responsive, democratic government. Britain could fund more efforts to develop green technologies and help spread them to developing countries, while boosting educational programmes to encourage critical thinking in schools so that the next generation of young people are able to challenge authoritarian narratives.

It’s time to gear up for the future. The UK is not without capacity: we spend on Official Development Assistance approximately 70 per cent of what China spends per year on the BRI. It goes without saying that we should not devise an “aid” programme like China’s, but if we can seize the opportunities the new FCDO offers, Britain can strengthen its capacity to extend international prosperity. In doing so, we will save and improve lives, defend vulnerable people from authoritarian advances, and keep British values at the heart of geopolitics in the twenty-first century.

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.

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.