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27 Jul 2021

Relationship with the EU


Taking responsibility should be the flipside of taking back control. But admissions of responsibility are in short supply in the government document published on the Northern Ireland protocol on Wednesday.

According to this, the protocol was the responsibility of (delete according to taste) Theresa May, Hilary Benn or indeed the 2019 parliament. Anyone, in other words, except the people who negotiated it – the prime minister and his chief negotiator, David Frost.

The blame shifting should not, however, lead us to ignore the fact that the British government has legitimate concerns about the way the protocol has functioned.

The document – published jointly by Frost, the Brexit minister, and Brandon Lewis, the Northern Ireland secretary – identifies the genuine problems it is causing in terms not just of trade but also of politics in the region.

It points to the inherent problems in the way the European Union has approached the management of the border between Great Britain and Northern Ireland as if it were one between sovereign states.

And, let’s not forget, it is in the interests of both the UK and the EU (not to mention the Irish government and both communities in Northern Ireland) to come up with a sustainable and workable protocol that irons out some of these wrinkles.

However, in producing the document Britain undermines its own case. First, the government denies these problems were both foreseeable and foreseen – not least in the official analysis that accompanied the withdrawal agreement when it was submitted to parliament.

Ministers cannot credibly complain they were hoodwinked into signing something they did not understand, nor that they had no choice over timing,

Nor is it credible to argue that the EU has been unexpectedly pedantic in its interpretation of the protocol. Brexiters, of all people, should have been alive to the fact that the EU is not known for its flexibility.

And rather than simply identifying operating issues and technical tweaks that might make the existing protocol work, the government is trying to argue that the protocol as a whole needs to be renegotiated – and that the framework for overseeing the agreement, which involves EU institutions, needs to be dumped.

That Boris Johnson does not like part of the UK coming under the authority of a “foreign court” should surprise no one. But where the question is about compliance with EU law, it should surprise no one that the EU insists its court has the final say over what those laws mean. The EU, like Britain, takes the notion of its own sovereign legal order seriously.

So what, ultimately, was the intention behind the document? If it was to secure an outcome both sides can live with, it is hard to avoid the conclusion that it has hindered rather than helped this quest.

By threatening de facto to renege on the international agreement it signed in late 2019, the UK is further confirming in Europe’s eyes that it is an untrustworthy neighbour. Which matters hugely, because the solutions the UK has proposed to the protocol’s problems are based on replacing prescription with trust.

Many in the EU will simply think Britain is trying to ensure that Europe will carry the blame when London eventually renounces the protocol. Some will assume that was the British government’s intention all along, which would make the current fractious relationship much worse.

If we are not to be locked into months of simmering tension, cliff edges and business blight in Northern Ireland, both sides need to agree on a way forward to ensure the protocol as currently drafted functions in the balanced way it was intended.

Perhaps a first step would be for officials to cancel their August holidays and agree an evidence base to establish what is really going on with east-west and north-south trade within Britain and Ireland.

A second would be to put some flesh on Britain’s proposals as to how the EU can have the assurances it needs about its single market while ensuring the functioning of the UK’s own internal market.

Shirking responsibility for a deal it negotiated and signed, showing blatant disregard for the EU’s legal order, and threatening to tear up a deal on which Johnson’s signature is barely dry is probably not the best way to secure concessions – not least because the concessions sought are largely based on a greater mutual trust.

Yes, the EU could and should show greater sensitivity to the real problems the protocol is causing. But this document hardly represents the best way of getting it to do so.

By Professor Anand Menon, director, and Jill Rutter, senior research fellow, at UK in a Changing Europe. This piece originally appeared in the Guardian.


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