How will they square the circle of unfettered access to Northern Ireland ports? Check it out on – Thursday now

David Frost ( no, not that one, now deceased)

According to the Sunday Times we will know the approach the UK will adopt for the next stage of EU withdrawal in a couple of days, now that the country has left the organisation and we are in the transition phase of less than a year.  The UK government are taking up a position of maximum distance from the EU procedures and laws quite different from the  erratic harder no softer approach of Theresa May’s minority  government that came such a cropper. At the heart of it for us is the almighty contradiction between the clear words of the  NI protocol saying checks are required  at ports on either side of the North Channel, and the boiler plate  assurances of government ministers waving them away. Up to now  the ministers have been  smilingly  pitied like fundamentalists who believe the earth was created in six days, But maybe they’re about to have a go at somehow meaning it, as the Sunday Times reports.

Boris Johnson’s Brexit team has been ordered to draw up plans to “get around” the Northern Ireland protocol in the Brexit withdrawal agreement so the prime minister can play hardball with Brussels over trade. Officials in Taskforce Europe, run by Johnson’s EU negotiator David Frost, are working in secret on proposals to ensure that there do not need to be checks on goods passing from Britain to Northern Ireland.

They believe the new attorney-general, Suella Braverman, might have to give new legal advice to justify the move. Insiders say she was appointed because her predecessor Geoffrey Cox was not willing to countenance action that will be seen in Brussels as a breach of the exit agreement.

The details emerged as Frost plans this week to spell out Britain’s demands for a trade deal with Brussels, insisting on the same rights as Canada. Officials have not ruled out an attempt to try to claw back money from the EU divorce bill if the EU will not play ball. Johnson’s Brexit war cabinet will meet on Tuesday to sign off the plans, which will be published online on Thursday and laid out in parliament.

Spotting the Sunday Times story the Guardian rang round a few experts to  sound the warning notes

Reneging on the special Brexit arrangements for Northern Ireland will risk trade deals with both the EU and the US, experts have warned.

Concern has been raised after Boris Johnson’s Brexit negotiating team has reportedly been ordered to come up with plans to “get around” the Northern Ireland protocol in the withdrawal agreement which includes checks on goods and food going from Great Britain to Northern Ireland.

Former Irish ambassador to the EU Bobby McDonagh said reneging on it would have serious consequences including posing a risk to a future deal with Washington where support for Ireland is considerable.

Catherine Barnard, professor of EU law at Cambridge University said there would be immediate consequences if the UK did not show good faith both legally and reputationally.. “If, as some comments suggest, it were to renege on its legal obligations to carry our checks on goods moving from Britain to Northern Ireland, it is hard to see what value the EU, or indeed any country, would see in a future trade deal with the UK. If the UK were to walk away from the binding provisions designed to preserve the balances of the Good Friday agreement, which it agreed to after lengthy negotiations, there would seem in particular to be no prospect of any UK/US trade deal being ratified by Congress,” McDonagh said.

A formal dispute could see elements of the Brexit deal, such as fisheries, or tariff-free trade taken off the table in a tit-for-tat that could poison the next five months of critical talks on the UK’s future trading relationship with the EU.

The Northern Ireland protocol kicks in from 1 January 2021 whether there is a trade deal with the EU or not.

David Frost the ex diplomat and old mate of Boris Johnson’s who’s now in charge of the negotiations has dismissed the whole pattern of thought that takes its line from  EU law and politics.  In a scene setting speech in Brussels he said  that the  EU and its supporters just don’t get it. This means one of two things: either the UK will start off wide of the EU version the terms  but end up  closer not because of pressure of  EU law but because that’s what the UK has voluntarily  decided ; or there‘ll be an almighty bustup. Or both. Either way Northern Ireland will be squeezed somewhere in the middle, remaining in the single market after December but having a customs relationship with GB that  is supposed to allow us to benefit from new trade agreements negotiated by the UK. Back in the day they called this squaring the circle.

Extracts from Frost’s speech

 We are clear that we want the Canada-Free Trade Agreement-type relationship which the EU has so often said is on offer – even if the EU itself now seems to be experiencing some doubts about that, unfortunately.

If those doubts persist, we are ready to trade on Australia-style terms if we can’t agree a Canada type FTA. We understand the trade-offs involved – people sometimes say we don’t but we do – and we will be setting out in written form next week actually how we see the shape of the future relationship in more detail.

But I do not rest my case on Brexit entirely on looking at the numbers. There is a deeper point involved here once again .I made the point just now that some of the studies of the benefits of trade were really studies of the benefits of good institutions and good politics. That, in my view, is where the gains of Brexit are going to come.

Some argue that sovereignty is a meaningless construct in the modern world, that what matters is sharing it to gain more influence over others. So we take the opposite view. We believe sovereignty is meaningful and what it enables us to do is to set our rules for our own benefit.

Sovereignty is about the ability to get your own rules right in a way that suits our own conditions. Much of the debate about whether Britain will diverge from the EU I think misses this point. We are clear – and the PM was clear in the speech he gave at Greenwich in London that we are not going to be a low-standard economy. That’s clear. But it is perfectly possible to have high standards, and indeed similar or better standards to those prevailing in the EU, without our laws and regulations necessarily doing exactly the same thing. One obvious example, I think, is the ability to support our own agriculture to promote environmental goods relevant to our own countryside, and to produce crops that reflect our own climate, rather than being forced to work with rules designed for growing conditions in central France.

I struggle to see why this is so controversial. The proposition that we will not wish to diverge, that we would wish not to change our rules, is the same thing as the rules governing us, on 31 December this year, are the most perfect rules that can be designed and need never be changed. That is self-evidently absurd. I think we should dismiss the ‘divergence’ phantasm from sensible political debate.

I think looking forward, we are going to have a huge advantage over the EU – the ability to set regulations for new sectors, the new ideas, and new conditions – quicker than the EU can, and based on sound science not fear of the future. I have no doubt that we will be able to encourage new investment and new ideas in this way – particularly given our plans to boost spend on scientific research, attract scientists and make Britain the best country in the world to do science.

(This last bit will really alarm the EU)

  One of those fundamentals is that we are negotiating as one country. To return again to Burke, his conception of the state was and is one that allows for differences, for different habits, and for different customs. It is one which means that our own multi-state union in the UK has grown in different ways across the EU – each playing unique roles in its historical development. It is actually rather fashionable at the moment amongst some to run down that state which has been very successful historically. We cannot be complacent about the Union in the UK, but I nevertheless believe that all parts of the UK are going to survive and thrive together as one country. In particular, I am clear that I am negotiating on behalf of Northern Ireland as for every other part of the UK.

A second fundamental is that we bring to the negotiations not some clever tactical positioning but the fundamentals of what it means to be an independent country.

(Good luck with that – for all our sakes).

What does the ‘New Decade, New Approach’ (NDNA) agreement mean for Northern Ireland’s Brexit? :Dr Katy Hayward and Professor David Phinnemore describe the thick, dark bureaucratic forest  of committees and sub committees  into which Northern Ireland  will be plunged. Let’s hope the civil servants will be more up to the mark than they were for RHI. As far as I know the politicians haven’t touched this yet. Who could blame them? They’ve got enough to do to keep the buses running.

The Northern Ireland executive is to have a sub-committee on Brexit. This will be chaired by the First Minister and deputy First Minister with representatives from all parties in the executive taking part.

There are a lot of ‘known unknowns’ in the Protocol, some of which can only be determined as the future UK-EU trade relationship is agreed – such as which goods will be subject to tariffs (in the worst case scenario), and regulatory and other checks and controls across the Irish Sea border.

We can expect the EU to be strict on the enforcement of such controls because now the edge of its single market for goods and its customs territory becomes an internal boundary of a non-member state. Although it is a sea border (and thus easier to police than an open land border), it is nonetheless one that will be traversed if smugglers think it is a weak spot for entry into either the EU or GB markets.

The second element of negotiation is the future UK-EU relationship. This will determine what controls will be placed on movement across the Irish Sea (see above) from/to both Northern Ireland and the Republic of Ireland. In turn, this will affect movement across the Irish land border.

The third layer of negotiation is that of the UK’s trade deals with other countries, such as the USA. What the UK agrees in those negotiations will affect the controls that the EU will require on the movement of goods across the Irish Sea into its single market and customs territory and, thus, the experience/impact of Brexit for Northern Ireland businesses and consumers.

Input from Northern Ireland in the implementation of the Protocol

A substantial feature of the NDNA document comes in the form of the UK government’s commitment to ‘ensure that representatives from the Northern Ireland executive are invited to be part of the UK delegation’ in meetings of two crucial bodies.

First, they can attend the UK-EU Joint Committee, which is a ministerial level decision-making body charged with the implementation of the Withdrawal Agreement as a whole. Secondly, representatives from the executive (presumably officials from the NI Civil Service given the nature of the body), can also attend the Specialised Committee on Ireland/Northern Ireland – a body composed of officials overseeing the operation of the Protocol [Annex A:9]. Such attendance may be seen as a bare minimum in terms of direct representation from Northern Ireland on bodies that will be so significant in overseeing and monitoring the implementation of the Protocol.

Invitations from the UK government to NI executive representatives to attend such meetings will occur only in instances where (i) the committee concerned is discussing Northern Ireland-specific matters and (ii) the meetings are ‘also attended by the Irish government as part of the European Union’s delegation’. This is, presumably, on the grounds that it reflects the logic of the north/south bodies operating on the island of Ireland (particularly the North/South Ministerial Council), which gives the NI executive a unique capacity (as a regional-level devolved administration) to operate and make decisions at an ‘international’ level.

It is notable that the NDNA makes no mention of how Northern Ireland’s voice will feature in the work of the third UK-EU body established to support the implementation of the Protocol, namely the Joint Consultative Working Group (JCWG). This contains the most potential for Northern Ireland’s direct input (including from stakeholders) into the discussions, monitoring and decisions around the implementation of the protocol. For that reason, deciding on its preferences for the operation of the JCWG and input to it from NI ought to be a priority of the executive.

The government also commits to ‘engage in detail’ with the executive on ‘measures to protect and strengthen the UK internal market’ [Annex A:10]. What this looks like in practice – especially bearing in mind that the language of strengthening the UK internal market will sit uncomfortably with some – and how the engagement will be carried out are yet to be determined.

Finally on this, the government promises to ‘engage specifically with the executive on the unique circumstances of Northern Ireland and the Protocol’ [Annex A:12] but there is no detail on this.

Input from Northern Ireland in the future UK-EU negotiations and other free-trade agreements

The UK government states that it would ‘welcome close engagement with a restored executive on Northern Ireland’s priorities in the next phase [of Brexit]’ [Annex A:8].  Whilst recognising that Northern Ireland will be affected by the UK negotiations with the EU and other partners (which are of course beyond the competence of devolved administration), this is an extremely weak commitment and provides no indication of the institutional form engagement will take. Effective consultation is necessary given the importance of the future UK-EU relationship and the UK’s relations with other partners for the future of the protocol and its implications for Northern Ireland, and especially its position in the UK internal market.

Of interest to Scotland and Wales in particular is the fact that the UK government here commits to consulting ‘other devolved administrations’ alongside the NI executive, on ‘our wider trade policy’ [Annex A:11].

he government states in the NDNA agreement that it is ‘absolutely committed to ensuring that Northern Ireland remains an integral part of the UK internal market, in line with the clear guarantee in the Protocol that Northern Ireland remains in the customs territory of the United Kingdom’ [Annex A:10]. Whilst the protocol is indeed clear that Northern Ireland is part of the UK’s customs territory, in practice (given that the EU Customs Code will be implemented in the region), there will be new frictions and complexities introduced to the UK internal market that were not there before.

Other amendments to the WA Bill supported by NI business and parties are those that provide legally binding detail to the protocol’s guarantee of ‘unfettered access’ from the region into Great Britain after Brexit. NI businesses are looking to be able to continue to sell their goods to the rest of the UK without tariffs, origin requirements, regulatory controls, dual authorisations or discrimination in the market. 



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