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.”

Stephen Booth: Both sides must accept the trade deal for Northern Ireland has to change

29 Jul

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

Following months of simmering disagreement between London and Brussels over the Northern Ireland Protocol, the scale of the gulf between the UK and EU positions has been laid bare over the past week.

On Monday, the European Commission published its proposals for solutions to ease trade friction between Great Britain and Northern Ireland, covering medicines and some animal and food safety checks. However, these proposals had already been shared privately with the UK in June.

A Government spokesperson quickly dismissed them as representing “only a small subset of the many difficulties caused by the way the protocol is operating,” adding, “We need comprehensive and durable solutions if we are to avoid further disruption to everyday lives in Northern Ireland.”

Last week, the Government published its own proposals for reform of the Protocol in a new command paper. In contrast to the EU’s proposed technocratic tweaks, the UK is seeking reforms that would fundamentally alter the operation of the Protocol. As Lord Frost notes in the foreword to the document, “They will require significant change to the current Protocol. But they will not dispense with many of its concepts.”

A key feature of the UK proposal is to build on the concept that only goods moving from Great Britain to Northern Ireland, which are “at risk” of entering the EU, should face tariffs.

The UK is suggesting that where a trader has declared that products moving to Northern Ireland are not intended for onward distribution or use in the EU, no customs processes and checks should apply. Risk-based and intelligence-led checks would be conducted to ensure compliance, but this approach would establish that the default is that goods can circulate freely within the UK’s customs territory, which, as the Protocol makes clear, includes Northern Ireland.

The same principle would apply to most agri-food trade, except for live animals. Agri-food products going to the Republic of Ireland would still be subject to the full range of EU mandated checks, but “there would be no need for certificates and checks for individual items that are only ever intended to be consumed in Northern Ireland”.

In addition, the UK remains open to a bespoke agri-food agreement based on the principle of equivalence (as opposed to the EU’s desire for alignment with EU rules) that would provide for managed regulatory divergence, and a mutual basis for assessing where risk-based checks were most necessary.

The UK has also proposed the introduction of “a full dual regulatory regime” that would allow goods to circulate freely in Northern Ireland provided they comply with either UK or EU standards. Labelling would denote those products that are only for the Northern Ireland market and, again, goods destined for the EU market would have to meet all EU rules and customs formalities.

Overall, these arrangements would remove most of the practical impact that the Protocol has had on businesses trading between Northern Ireland and the rest of the UK. Instead, traders would be subject to a light-touch regime, whereby they would self-declare their trade and agree to inspections of their supply chains.

Therefore, the arrangements the UK is proposing require a higher degree of mutual trust than we have seen to date. When viewed from Brussels, perhaps the most ambitious of the UK proposals is to remove the role of the EU Court of Justice in overseeing the Protocol.

However, as the command paper points out, the practical risk of illicit trade to the EU is extremely low, since trade from Northern Ireland to Ireland is less than 0.5% of all imports into the EU. Nevertheless, the UK sensibly acknowledges the EU’s concern for the integrity of its Single Market. To address the EU’s concerns, the UK has committed to put in place legislation to provide for penalties for traders seeking to place non-compliant goods on the EU market, which could be supported by deeper data-sharing arrangements and greater cooperation between UK, Irish, and EU enforcement authorities.

The UK proposals are bold, but they would maintain the promise of no land border on the island of Ireland and provide for a more balanced arrangement, which could therefore command greater public support in Northern Ireland.

The timetable for agreeing any changes to the Protocol is extremely tight due to the looming expiration of several grace periods, including for supermarket supplies, in the autumn. The UK has therefore suggested both sides agree a “standstill”, both on grace periods and the EU’s legal actions against the UK, to enable negotiations to take place without cliff edges, and a further escalation of political tensions.

Curiously, the UK’s proposals have met with a muted response from the EU. Yesterday, the EU chose to pause its legal action, and there have been small hints of compromise, particularly from some close to the Irish government. Previously, the UK’s public negotiating positions have often prompted instant and aggressive counter-briefing from senior EU figures. Think of the way Theresa May was treated when seeking a far closer EU relationship than the current government.

European Commission President Ursula von der Leyen simply stated that the EU would not “renegotiate” the Protocol, but would “continue to be creative and flexible within the Protocol framework”. Time will tell whether this is a semantic or substantial distinction. It is worth noting that Article 13(8) of the Protocol provides for its amendment through mutual agreement.

It is significant that the document also sets out the Government’s view that the current scale of trade diversion, negative economic and societal impact, and political instability caused by the Protocol would justify the use of unilateral action under Article 16. The Government says it will not exercise this right “for the time being”, but it remains an option if the EU refuses to engage in the coming weeks.

The EU may choose to hang tough and to retaliate against such a move. Clearly, there is a risk that the UK-EU politics get ugly. In the end, both sides need a solution, and the command paper demonstrates that the UK is prepared to play a long game.

Much of the criticism levelled at the Government following the publication of the command paper is for wanting to fundamentally amend a treaty it agreed less than two years ago. The Government makes the case that the Protocol was agreed under the extraordinary political circumstances of 2019, and that the EU rejected the opportunity to find flexible solutions to resolving these issues in the UK-EU trade negotiations of 2020.

Against those accusing the UK of not understanding the full implications of the Protocol, it should be remembered that in agreeing the Protocol, the EU pledged to protect the Belfast/Good Friday Agreement “in all its dimensions”, including the East-West strand. The UK is within its rights to hold the EU to this essential part of the bargain.

Few would argue the situation is ideal, and these political arguments are likely to be informed by one’s pre-existing Brexit prejudices. But there is a wider point that few observers now seem to disagree with. The negative economic and political real-world consequences of implementing the Protocol cannot be what either side intended. Therefore, substantive change is necessary.

Henry Hill: If Johnson wants to save the Belfast Agreement, he must act to restore unionist confidence in it

8 Apr

Last month, I wrote about what the appointment of Lord Frost signalled with regards to the Government’s intentions over the Northern Ireland Protocol. This week’s loyalist violence shows the importance of Boris Johnson getting this policy right.

The division inside the Government is not between people who like or dislike the Protocol. Nobody likes it.

Rather the divide is between those such as Michael Gove, who believe that the Protocol can be made to work (and has striven to sand off its roughest edges), and the likes of Frost, who don’t. The latter camp maintain that because the Protocol is a ‘living document’ rooted in EU law, it is almost certainly going to metastasise rather than stabilise, and lay a heavier and heavier burden on Ulster’s connections with the mainland.

Of course there is no avoiding the fact that the Prime Minister signed up to it, but the defence offered for that is that after the passage of the Benn Act the Government didn’t have the leverage to get rid of it before leaving the EU. Nor was the mistake his alone.

For all that some commentators like to talk up Theresa May’s alternative approach, in truth the critical mistakes on Northern Ireland – especially allowing Britain’s rhetoric about no return to “the borders of the past” to mutate into a commitment to an invisible Irish border which is not in the Belfast Agreement – were made when she was in office. Ireland and the EU deliberately pushed a maximalist line on Ulster and credulous British ministers swallowed it whole.

The Protocol isn’t the only factor contributing to the violence. The visible refusal of the PSNI to act on blatant lawbreaking by senior Sinn Fein politicians is another. But they are part and parcel of the same trend of unionists and loyalists feeling that the structures and processes of the post-1998 settlement are being stacked against them.

There is no plausible reading of the Belfast Agreement that could offer the nationalist community a right to an invisible border with a neighbouring state but not protect unionists from a visible border inside their country. Yet that is how it has been defined, if not in court then by the political debate around the Protocol. The Agreement is supposed to guarantee Northern Ireland’s British status, yet the Government will not fly the flag there. Some people even thought the Democratic Unionists propping up the May Government – i.e. participating in their national government – a breach of the deal.

As a result, the loyalist paramilitary groups have already withdrawn their support for the deal and there is an increasingly real prospect of political unionism following suit. If the major parties get spooked into collapsing Stormont, it may not come back.

This is a test for both sides. The EU has been keen to talk up the importance of the ‘Good Friday’ Agreement and ‘the peace’ when doing so meant maximally enforcing the EU’s interests. Will it continue to prioritise them if it means going against its perceived interests? It would be a surprise.

But it is even more a test for the Government, because Northern Ireland is British and thus ultimately our responsibility. That means that yes, Johnson needs to back Frost to the hilt if he has a long-term strategy for delivering fundamental changes to the Protocol. But he should not stop there.

As I wrote in the News Letter last week, he should overturn the decision to exclude the Province from the new policy of putting the Union Flag on UK Government buildings and authorise Brandon Lewis to undertake root-and-branch reform at the NIO to get rid of the entrenched neutralist attitudes that rule there. He should also task whoever is in charge of formulating constitutional policy to sit down and develop a proper British vision of the Belfast Agreement and its obligations, to help prevent future generations of lazy and/or uninterested ministers getting memed into terrible decisions by those selling the myths that seem to comprise the ‘Good Friday Agreement’.

For too long, the Government has relied on the old trick of staging interminable rounds of talks and then basically bribing the local parties back into Stormont for a bit. If the Prime Minister wants to save the Belfast Agreement, he must demonstrate to unionists that its guarantees of their British status – including the ability to participate fully in British political and economic life – are real.

Henry Hill: It is past time the Government worked out a British interpretation of the Belfast Agreement

17 Sep

Joe Biden’s latest intervention in the battle over the Government’s controversial Internal Market Bill is a useful reminder of a couple of truths which the Right in this country are prone to forgetting.

The first is that the ‘Special Relationship’, upon which the entire Atlanticist world-view rests, is a fiction. The US does have a unique bond with an island nation off the coast of Europe – but it isn’t this one.

Second, this crisis highlights once again how utterly woeful unionists on both sides of the water have been in developing a proper theory of the Belfast Agreement and selling it to journalists and policymakers either at home or overseas.

What does a ‘theory of the Belfast Agreement’ mean? It means an expansive understanding of what its provisions entail, and even more importantly, what they don’t entail, plus a narrative in which these interpretations make sense.

Over the past four years, both an uninterested UK Government and its unionist allies have been utterly routed when it comes to shaping popular understanding of the ‘Good Friday Agreement’. As a result, even as sincere a unionist as Theresa May ended up accepting that Britain was under a treaty obligation to ensure that absolutely no border infrastructure was necessary between Northern Ireland and the Republic.

This understandably outraged those who recognised how extraordinarily it would be to have an external party impose an internal tariff border on a sovereign nation, and proved the undoing of May’s deal. Boris Johnson then won the leadership with a vow that he would never accept such a thing. But he was no better equipped to challenge the line being peddled by Dublin and Brussels than his predecessor, so he folded. Now his belated efforts to (possibly) un-fold are causing the Government serious difficulty.

At every turn, the weight provided to the Agreement’s offers to each side are completely different. Quite limited references to cross-border cooperation are spun out into vast entitlements, whilst Unionists are fobbed off with the suggestion that having a broad swath of economic policy set from Dublin doesn’t technically change Ulster’s constitutional status. To imagine the Irish nationalist reaction to the same proposal in reverse – Irish policy set by London – is to see what a nonsense that defence is.

It’s not as if a unionist interpretation of the Agreement doesn’t exist – Lee Reynolds, the Director of Policy for the Democratic Unionists, set one out on this site in 2018. But there has been no concerted effort to sell it. The Government has a potential ally in David Trimble, who actually negotiated it, but has failed to give him any prominent role.

Would such a campaign have been a magic bullet? Of course not. The European Union would still have had every incentive to weaponise Northern Irish issues, and the sort of US politician who goes to bat for the IRA doesn’t really care one way or the other what the Agreement does or doesn’t say. But as with the Prime Minister’s attempt to refuse the Scottish Nationalists a second referendum, having a clear and defensible justification for what you’re doing can be the difference between being perceived as an honourable opponent or an untrustworthy chancer.

If the Government really wants to get ahead of the problem with regards to Northern Ireland, it should finally sit down and work out what the British interpretation of the Belfast Agreement is. Better decades late than never.

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.