The non-existence of EU compromise on the Protocol

The EU’s position on the Northern Irish Protocol has shifted very little since the Autumn of 2017.  The EU started 2017 with a fairly tentative position of calling for imaginative solutions.  By the Autumn, the UK proved that it was willing to accept European Court jurisdiction over EU nationals in resident in the UK, and would pay an overwhelmingly fictitious bill.  Reassured, the EU presented demands somewhat more severe than those Austria-Hungary presented to Serbia in 1914.

The EU’s demand was that the UK transferred to it full sovereignty over N. Ireland’s trade policy, what goods can be sold in EU, and on the use of state aid in the Province.

Nature of the power transferred in the Protocol

There is a lot of smoke and mirrors that hides this reality.  Talk of N. Ireland being a de facto part of the Single Market for goods.  Talk of “alignment” with some EU rules.  There is the EU’s own pretence that all is well with UK sovereignty providing there is no final transfer of N. Ireland to the Republic

All of that is pure misdirection. In the language of international law,a state represents itself in international relations.  The EU’s demand was that it would represent N. Ireland in matters of trade and goods.

When we add that the EU demanded the powers in order to uphold an All-Ireland approach in the relevant matters, the position could hardly be clearer.   UK Sovereignty over the issues would be transferred to the EU27; and they saw themselves as holding the powers as trustees for the Republic of Ireland.  As the leaders of the EU27 liked to say, “We are all Irish.”

Weaknesses in EU power over N. Ireland

Currently, however, there are weaknesses in the EU’s sovereignty.  These largely derive from the Protocol’s original sin – the EU only obtained Theresa May’s agreement by promising that its proposals were a mere Backstop.

The EU’s promises to the Theresa May were as solemn as they were meaningless, but the EU was drawn into saying more that it really wanted.

• Firstly, as just said, the EU promised in the “Joint Declaration” of 2017 under which the United Kingdom first agreed the transfer of power that the Protocol was a mere “backstop”. It would either be subsumed by the eventual future relationship (which has not happened) or alternatives will be found.  It is remarkable that, whenever the EU declares that it will not negotiate any changes to the Protocol, it has got away with accusing the UK of going back on its promise.  In fact, the EU is declaring that its own promise to find an alternative was undeliverable.
• Secondly, there is Article 16. As explained in an earlier contribution, this clause was added by the EU itself.  It is part of the EU’s standard terms.  The EU receives a promise from its neighbours to follow EU laws – in return the EU agrees that they need not do this blindly, but have an emergency brake if really necessary.  It allows both sides to say that sovereignty is respected – even though using it in practice is effectively taboo.[1]
• Thirdly, the acknowledgement in the Protocol that N. Ireland is part of the UK’s Single Market. There is no mention of N. Ireland being part of the EU’s Single Market.  This makes it clear what the intended end point of the process should be.  A restoration of full UK Sovereignty, just as the EU had promised Theresa May back in 2017.
• Fourthly, the Protocol expressly contemplates it being amended whenever alternatives are found. Originally this clause expired with the Transition Period.  Under the Johnson-renegotiation, the time limit was removed.

It is no exaggeration to say that the EU sold the Protocol on the basis of fraudulent misrepresentation as to the intended permanence.  Which leaves the EU with a choice:

• It could make good on its promises.
• It could use the power with sufficient liberality that hardly anyone minds.
• Get the United Kingdom to agree to confirm the EU’s sovereignty over N. Irish trade, etc on a permanent basis.

The EU’s approach

The EU could have applied the Protocol gently.  It may have been given arbitrary power over N. Ireland, but people seldom protest unless the power is used badly.

Instead of being gentle, the EU:

• Decided to carry out 20% of its entire border checks on the GB-to-NI route, grossly out of proportion to the size of the trade, even before we factor in the total alignment of UK rules at the point of Brexit and the existence of tariff free trade.
• Continued to fantasise that commercially significant quantities of contraband would be smuggled into N. Ireland as bound for the Province’s retailers, repackaged, sent south, integrated into Irish Republic supply chains, and dispatched to the Continent. Unseen and undetectable.

So, the EU has moved to plan (c): to get the United Kingdom to confirm EU sovereignty in N. Ireland over the relevant areas.

In return, the EU promises to use its power a little more gently.  However, as with the EU27’s promises to Theresa May, the promises are given solemnly but are unenforceable.

Nature of the EU’s proposals

It is important to be clear what the EU’s proposals amount to:

1. The parts of the Protocol that give the EU prima facie sovereignty over N. Ireland’s trade, goods, and state aid will remain in full.
2. The parts which uphold United Kingdom Sovereignty are forgotten:
3. The Protocol will not change, so the promises to find alternatives and the clause in the Protocol anticipating this disappear.
4. The Structural Safeguards in the EU’s Customs Non-Paper does not acknowledge any UK rights to protection should the EU’s proposals deliver nothing.
5. The right of the UK to invoke Article 16 is ignored throughout.
6. The UK’s internal market instead of being a goal of the process is dismissed as less valuable to N. Ireland than its participation in the Single Market.[2]
7. The EU’s offer in both the SPS and Customs Non-Papers is simply to exercise such discretion as EU law allows to when importing into the EU so as to create less cost when moving goods from Great Britain to N. Ireland.
8. In both the SPS and Customs proposals, the UK would need to agree that removal of EU law checks will never happen.[3]
9. The EU will be able to remove all relaxations it agrees should it ever be dissatisfied with the implementation or the results. There is no sign of due process.  The EU is judge and jury.  As the SPS proposal says: the EU will be able to react quickly and suspend or revoke access if there are failures by the UK government or traders.

The result of all of this is to remove the vestiges of British sovereignty in N. Ireland where matters of the Protocol are concerned.  Presently, the EU should worry that if it pushes things too far then Article 16 will be invoked.  That is part of the structure of the Protocol.  It will be replaced by a system whereby the UK will have a right to ask the EU if it will consider being less disruptive – and the EU will decide if it is in its interest to do so.

The EU’s Customs paper even requires that the UK demonstrate “a precise problem” in the implementation of the Protocol before it will consider taking any steps.  There is simply no recognition of there being anything wrong or unusual in the EU exercising state power in another country.  The Customs paper even treats the EU as the judge of the economic interests of N. Ireland.[4]

To summarise the scheme of the proposals:

• The UK may petition the EU to exercise its sovereignty over the NI-GB border more gently.
• The EU may choose to grant the petition.
• But the UK will have no remedy if the EU decides otherwise or changes its mind.

The proposals will do nothing to create a stable environment.  Anyone in N. Ireland can see that the only stable supply chains will be ones from the Republic.  The ones from Great Britain could be cut at any time.  The EU will doubtless say that everything will be fine, providing the UK does not disappoint it.  But errors happen.  The EU has shown throughout Brexit that any error by the UK (real or imagined) as a deliberate insult and sign of bad faith.  Opportunities for it to scream the house down will arise – and on past performance there is no doubt that the EU will seize them with glee.

If it wanted to compromise, the EU would start by recognising that it is exercising power in someone else’s country and that is extra-ordinary.  There is no sign of that.

Final comments

It is said that the UK’s role in supporting Ukraine and the defence of Eastern Europe generally has created a warmer atmosphere that will lead to compromise.

The truth is that the EU27 takes days to agree increased sanctions against Russian.  They take less time than the Scooby Doo title sequence to agree to threaten the UK with all out economic war if we do not agree to their demands on N. Ireland.  This remains the case.

The only thing that has really changed is that the EU27 (particularly countries like Poland and the Baltic states) look to the UK to protect their sovereignty from Russia.  The same countries stand wholly behind the EU’s demand to cement its sovereignty over N. Ireland’s trade, goods and state aid.  Even as the UK spends hundreds of millions of pounds on protecting those countries, Poland, Latvia, Lithuania and Estonia work with their EU partners on how best to make the UK poorer if we stand up for our own sovereignty.  The EU look to us for security; but they denounce the UK as a rogue state and unreliable partner for wanting the EU to make good its promise to find alternatives to the Protocol, and threaten to use the safeguarding clause of Article 16 if they do not.

Titus is the pen-name of a lawyer working in the public sector

[1] Https://www.briefingsforbritain.co.uk/article-16-why-is-it-even-there/

[2] Para 3, Customs Non-Paper.

[3] SPS Non-Paper, para 12; Customs Non-Paper, para 18.

[4] Paras 3 and 13.