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A Tale of Two Protocols and The Ruckus Over Aukus

Aukus a tale of
Written by Caroline Bell

Even before France’s hysterical reaction to the announcement of the AUKUS defence alliance last week, chances of reaching a negotiated resolution to the myriad problems created by the EU’s demands over the Northern Ireland Protocol seemed very slim. But the British government’s highly significant geopolitical pivot away from Europe towards the Anglosphere signalled by the creation of AUKUS, coupled with France’s determination to thwart Global Britain through control of the EU’s agenda, means an even bumpier road lies ahead.

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Variable geometry

‘Variable geometry’ is mainly used in EU terms to describe a multi-speed process of ‘ever closer union’ – often a convenient cover to explain away stalled progress on big integrationist policies like fiscal union or an EU army. This interpretation does not sit comfortably with dirigiste France, which constantly bangs the drum for EU unanimity for its grand schemes and firmly believes in strength in numbers – particularly when it comes to punishing Britain for Brexit. Variable geometry à la française is something altogether different. It means France pursuing its domestic and foreign policy ambitions by turning them into core policy objectives at the EU level, then playing both policies and other countries off against each other in order to achieve its own ends.

Brexit negotiations

Nowhere was this French diplomatic ballet more apparent – or more successful – than in the earlier stages of Brexit negotiations. Aided by the lamentable and supine May government, France succeeded in gaining control of the negotiating timetable and agenda, making a showstopper out of the non-issue of the Northern Irish border, and getting the rest of the EU to toe Michel Barnier’s hard line. This produced May’s Withdrawal Agreement with its appalling backstop. And here French variable geometry came to grief; because in their single-minded determination to prevent the UK becoming an independent economic competitor, the French ensured that the EU failed to offer a single crumb to the British people which would have made the straitjacket prepared for them in Paris even remotely acceptable. It is no good offering support and promises to the Irish (who may one day regret playing the French game) when the people you should be courting are on the other side of the Irish Sea. Or demanding British fish and at the same time refusing equivalence in financial services. Or insisting on such draconian terms in a deal that it will never be passed. And if you come up against an adversary of a very different stamp like Boris Johnson, variable geometry should warn you that the outcome of your negotiations is also likely to be different.

But the French being French – and therefore always right – could not grasp this. They overplayed their hand and failed to achieve their paramount objective, which was to stop Brexit altogether. Britain ended up with a Withdrawal Agreement which many of us could very happily have lived without and a Northern Ireland Protocol which (on the face of it) could be lived with for a couple of years. But the prize was a clear path at last to the door marked EU Exit. Boris Johnson’s landslide election victory in December 2019 (an entirely unexpected variable for the French) also cleared out most of Paris’s Brexit saboteurs in in the House of Commons. Tant pis.

The Trade & Cooperation Agreement

Nothing daunted, the French immediately set up more negotiating variables for the EU-UK trade talks … with somewhat less success. Michel Barnier keeping his job as inflexible Eurocrat was a win, but despite his best efforts to adapt the old Northern Ireland backstop into a permanent treaty to shackle the UK to the EU forever, he came away with a fat-free goods deal which fell well short of French asks for a very close political partnership (or more correctly, a vassalage agreement). Most speakers in the French Senate debate on the TCA called it a lose-lose deal. They feared the emergence of a Singapore-on-Thames on their doorstep, they worried about the UK’s refusal to join the EU’s common foreign and security policy, they bemoaned the loss of fishing quota in British waters, the refusal to secure dynamic alignment with EU regulations, the failure to impose EU state aid law on the UK, the UK’s refusal to continue funding Erasmus… in other words, they recognised in the TCA the final and bitter reality of the UK’s departure from the EU.

New variables post-Brexit

But if at first you don’t succeed… The French government is nothing if not consistent in its paranoia about having a deregulated ‘Anglo-Saxon’ economy on its doorstep, especially one with nuclear weapons. Hoping to fill the gaping policy holes in the TCA, Emmanuel Macron set in play another batch of variables to try to corral Brexit Britain back into the EU’s embrace while we were still under EU law during the transition period. Failing that, to cause as much trouble for the UK as possible – although causing trouble for the UK seems to be in Macron’s DNA. He simply cannot resist it, which makes it even less likely that he will ever achieve his political aims on this side of the Channel. At some point, the British will do what they always do… look much further afield to trade and form alliances with like-minded countries which don’t constantly behave like a very expensive and petulant mistress. AUKUS is a shining example of what happens when Britain has had enough of French manipulation and histrionics.

The new French variable geometry relies on gaming trade talks between the EU and UK over Gibraltar with extreme demands on implementation of the Northern Ireland Protocol, flooding the UK with illegal migrants and threatening to cut off power supplies in order to get big concessions on fish, while simultaneously menacing tariffs and lawsuits over every perceived infraction of the Withdrawal Agreement or the TCA. At French insistence the EU refuses to consider financial services or SPS equivalence to boost cross-border trade and plans to force the euro clearing market to leave London, but expects the UK to obey every little Brussels diktat and agree to talk about a common foreign and security policy… It is a hopelessly misguided strategy to pursue with a country which is no longer an EU member state, and which can make decisions based purely on its own national interest. The only question for the British government has to be: what is in this relationship for us? Very little, as an article on this site explains.

Between a Rock and a hard place… Gibraltar and Northern Ireland

The French laid the ground for the Gibraltar/Northern Ireland Protocol play during negotiations on the TCA. On the one hand, their man Barnier refused to entertain discussions which could have led to the replacement of the Northern Ireland Protocol – even though the Political Declaration specifically states that “facilitative arrangements and technologies will also be considered in alternative arrangements for ensuring the absence of a hard border on the island of Ireland” (PD, para 25). And on the other, Barnier had already agreed with Spain in 2018 that the EU would not allow Gibraltar to be included in the territorial extent of the TCA. This set up interlocking negotiating tracks on implementation of the Northern Ireland Protocol with progress on proposed trade talks between the EU and Gibraltar. Failure on one track would automatically block progress on the other. It’s standard EU negotiating practice.

Emmanuel Macron has assiduously courted Madrid since Brexit, even convening a Franco-Spanish summit in March 2021 to strengthen bilateral relations. With Macron, ulterior motives should always be suspected… Most people forget that the Brexit Withdrawal Agreement also contains a Protocol on Gibraltar, a Protocol which lapsed at the end of the transition period on 31 December 2020. If only the Northern Ireland Protocol had lapsed at the same time… A transitional deal was agreed at the very last minute to prevent a hard border between Gibraltar and Spain, but to all intents and purposes, Gibraltar got a fudged no-deal exit from the EU. Warm words were exchanged between the British and Spanish foreign ministers, with talks to formalise a separate trade deal between the EU and Gibraltar expected to conclude rapidly after ratification of the TCA. But the EU did not publish its draft negotiating mandate until 20 July.

Similarities with the first – resoundingly defeated – Northern Ireland backstop are legion, so it is no wonder the draft mandate was immediately rejected by both the UK and Gibraltar governments. Any agreement based on this mandate would turn Gibraltar into an EU fiefdom managed by Spain. Not only does the EU seek to give Spain sole power to police Gibraltar’s land and sea borders, it demands that Spain alone should issue visas, residence permits and process asylum claims on the Rock, treating non-resident British citizens as third country nationals (Gibraltarians are in fact British citizens, so this is doubly outrageous). Gibraltar should enter a full customs union with the EU, collecting customs dues to be apportioned to the EU budget, and be subject to EU laws on VAT, excise, SPS, state aid etc – all without the benefits of EU membership. In every case, Spain would enforce and police EU law on the Rock instead of the democratically elected government of Gibraltar.

The Gibraltar gambit… what next?

This ‘draft’ mandate was clearly designed to stir up trouble, particularly as problems with the Northern Ireland Protocol were reaching a climax and ‘sausage wars’, trade diversion and totally unnecessary paperwork threatened to cut Northern Ireland off from its British food supply chain. With perfect synchronicity, the UK’s Command Paper demanding a revision to the Protocol was published on 21 July. And then, the EU being the EU, everyone agreed to hold fire while they went off on their summer holidays.

What is immediately obvious, however, is that the EU will certainly not change its untenable stance on the Northern Ireland Protocol while it is attempting to recreate the same situation – if not worse – in Gibraltar. Nor will it moderate its demands on Gibraltar when it would dearly love to impose the same conditions on Northern Ireland (a customs union and full adoption by the UK of EU SPS rules, for example, in order to limit food exports to the lucrative UK market to the EU27).

The draft Gibraltar mandate has still not been signed off by the EU Council, so some member states at least are aware of the potential consequences of this hardball strategy – driving the UK into a position where it would be easier to terminate the Withdrawal Agreement/Northern Ireland Protocol under the Vienna Convention and throw into question the future of the TCA, rather than allow the EU to continue its onslaught on UK sovereignty over Northern Ireland and Gibraltar.

Northern Ireland and Article 16

The British government’s Command Paper on Northern Ireland stated (quite justifiably), that conditions for suspension of the Protocol under Article 16 have been met (trade diversion, impact on everyday life, unnecessary checks on goods crossing from GB to NI). The text of the Protocol itself is supposed to prevent all of these problems, but Brussels’ insistence that its interpretation alone of the Protocol text must be implemented (such that 20% of all goods checks in the entire EU are now carried out on the border between Northern Ireland and Great Britain, a border which is not even in the EU) is a breach both of the Withdrawal Agreement (where mutual consent is required on all decisions) and of Article 31 of the Vienna Convention on the Law of Treaties (that treaties should be interpreted in good faith to achieve the objectives of the treaty). The EU’s demands on border checks blatantly contradicts the aims and terms of the Protocol.

Manifestly, the Protocol in its current form is living on borrowed time. It is now a game of cat and mouse to see how far each side will go to resolve the issues. The EU’s interests have nothing to do with maintaining the Good Friday Agreement or ‘protecting the Single Market’ and everything to do with trying to foist as much EU law onto Northern Ireland as possible in the hope that the UK will buckle and accept dynamic regulatory alignment (thereby limiting Britain’s scope for global trade deals to undercut subsidised EU producers), rather than allow Northern Ireland to drift off into an EU controlled twilight zone. This strategy, of course, is predicated on the naïve assumption that the UK is willing to commit severe and permanent self-harm by keeping the Protocol and doing exactly what it is ordered to do by a hostile EU.

Cherchez la France

The EU’s tone-deaf response to both the Command Paper and Lord Frost’s speech to the British-Irish Association on 4 September suggest that a huge bust-up is more likely than productive talks – not least because the French continue to add fuel to the flames. France is bitterly opposed to any renegotiation of the Protocol (although this is specifically allowed for in Article 13). Immediately on publication of the Command Paper, France’s Europe Minister Clément Beaune toured the airwaves to denounce the UK, claiming that the Protocol cannot be renegotiated. Emmanuel Macron had made the same point at the G7 meeting in Cornwall (although he may now wish he had paid more attention to submarines and less to sausages). He visited Dublin on 26 August to keep the Irish on side with his hard-line approach to the Protocol, assuring them that he was now their main friend in the EU (translation: that he will kick the Brits at every opportunity on their behalf).

Other fish to fry

The French have other fish to fry too – if they can catch them in British waters. French fishermen are now faced with the loss of provisional licences to fish in British inshore waters on 30 September because they have still not provided required proofs to DEFRA to show that they are entitled to them. Doubtless another temporary extension could be granted (as it has by the Jersey government, in response to threats of violence), but the government should not give in. Fishing in the UK is now governed by UK law, and there should be no exceptions – least of all for foreign vessels.

Why should Britain allow its waters to be plundered by French trawlers, even temporarily, when France continues to pursue a relentless campaign against Britain on all fronts – in Northern Ireland, in Gibraltar, over AstraZeneca, on space cooperation, the City, illegal migrants… What has emerged from our departure from the Common Fisheries Policy and the implementation of the TCA is the massive scale of illegal fishing by the French in British waters sanctioned by the EU over many decades. In a self-styled ‘rules-based organisation’ which spews out regulations on every aspect of the fishing industry, there should be ample records of catches (species, location, type of net etc), which is surely the only way CFP quotas and conservation measures can be enforced. French government cries of foul now that Britain has demanded this information before issuing licences seem designed not just to cover up long-standing illegal fishing, but to be part of a brazen grab to establish new rights to fish in UK waters to make up the quota they have lost to other EU boats in their own waters.

French threats over their failure to supply the proofs required to obtain permanent fishing licences certainly do not indicate any rationality on their part when it comes to other contentious issues like Northern Ireland and Gibraltar. Indeed, with Germany in a state of political paralysis while a new coalition is put together and France already busy pushing its expansionist agenda for its presidency of the EU in January 2022, it is to be expected that Paris will be pulling as many levers as possible in Brussels to frustrate the United Kingdom at every turn.

The AUKUS factor

AUKUS, the defence, intelligence and technology alliance between Australia, the UK and the USA announced on 15 September 2021 was an excellent riposte to malign Gallic interference in British affairs. Emmanuel Macron fully appreciated the slap in the face it represents for his ambitions to get the UK to sign up to the EU’s Common Foreign and Security Policy. The ensuing ‘crisis’ was extraordinary and hilarious by turns, and appears to have been manufactured in the Elysée to save his face. Bashing ‘Anglo-Saxons’ always boosts approval ratings for French presidents, especially in a presidential year. It was noteworthy that response at the EU level was muted until Josep Borrell belatedly complained that Brussels should have been consulted. But of course, three non-EU countries do not have to consult the EU or any of its member states on issues which do not concern them. It is hard to say what exactly Macron expected his insults and slurs to do (calling allies ‘liars’ and ‘traitors’ is never a good look) other than to convince the British government that it was quite right to keep the French in the dark over AUKUS. His subsequent equation of AUKUS with the need for an EU military alliance has won little support among other member states, with some like Denmark openly backing the USA.

Failure by France to turn a domestic drama into a full-blown EU defence crisis means that the ruckus over AUKUS is likely to continue, although in other areas. Macron has already effectively placed a veto on continuing free trade talks between the EU and Australia, thereby protecting heavily subsidised French farmers from global competition (and getting a few votes in the process). But it is almost certain that the UK will be his principal target. So what’s new? His aggressive stance towards this country over the past few years rather made AUKUS inevitable. Continual harrying through the EU and bilateral ill will from Paris has been the norm for so long that Britain expects nothing else. The PM encapsulated this perfectly with his exhortation to France to ‘donnez-moi un break’.

Decree nisi or decree absolute?

The fallout from AUKUS, coupled with the expectation that the EU will not change its spots and reach a sensible negotiated solution to problems with the Northern Ireland Protocol doubtless informed thinking in the FCDO over Gibraltar – with the statement last week that the government is preparing the Rock for a no-deal outcome. This is wise. It would be inconsistent for Brussels come back with a new, reasonable negotiating mandate when the EU’s real goal remains to hobble the United Kingdom permanently by choking Northern Ireland off from the mainland.

That being the case, what has the UK got to lose by triggering Article 16? Commission officials are apparently considering ways to deem such a trigger illegal, so it can bring infraction proceedings or impose retaliatory tariffs. What then? As with every element of the Withdrawal Agreement and the TCA, such a response relies on the willingness of the British government to continue harming British interests by playing by the EU’s rules. AUKUS is a sign that patience in Whitehall is wearing thin. Tit-for-tat tariffs and a fishing war would be just the start of the descent into a diplomatic permafrost.

The political reality is that no treaty is permanent, and no treaty cannot be amended or terminated. So before it pursues the next round of hostilities over the Northern Ireland Protocol, the EU might wish to consider whether in fact it wants a shiny decree absolute to make the Brexit divorce final. One can but dream…

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About the author

Caroline Bell