Fool me once, shame on you, fool me twice…

On August 1st. 2023, The Daily Mail reported that Sunak had decided to retain the CE mark for British produce. In a piece entitled: “Rishi Sunak performs another Brexit climbdown as PM allows British firms to continue using EU’s ‘CE’ safety mark on products ‘indefinitely’ rather than new UKCA alternative” Greg Heffer, Political Correspondent For Mailonline wrote:

“Rishi Sunak has performed another Brexit climbdown by allowing firms to continue using the EU’s ‘CE’ safety mark on products ‘indefinitely’. The Prime Minister has taken the action following complaints from businesses about added bureaucracy with the introduction of a British alternative. The Government had been aiming for the UKCA (UK Conformity Assessed) system to replace CE (European Conformity) marks at the end of next year. But firms will now be able to carry on using CE marks following an ‘indefinite extension’ to their use by the Department for Business and Trade. This will allow companies the option of using either the UKCA or CE approach when selling their products in Britain. CE marks have been present on products ranging from beer glasses to television sets in Britain since 2006 under EU legislation.

Ministers had initially attempted to introduce the post-Brexit UKCA mark when the Brexit transition period ended on 31 December 2020. But, due to the impact of the Covid pandemic, the Government gave businesses an extra two years to apply UKCA marking to their products. Business and Trade Secretary Kemi Badenoch has now extended the December 2024 deadline indefinitely to prevent a ‘cliff-edge’ moment for firms having to comply. It means products such as toys, radios and aerosols can continue to bear the CE mark beyond the end of next year. Her department claimed it would remove uncertainty for firms over the regulations and cut back on ‘unnecessary costs freeing them up to focus on innovation and growth’.

Some British companies had complained that a UKCA certification would lead to extra costs because it was not recognised by the EU. This meant they faced having to deal with two separate schemes if they sold products in Britain, as well as exporting to the continent. Mr Sunak and Ms Badenoch have also recently scaled back plans to scrap thousands of EU laws by the end of this year, as originally planned.

Business minister Kevin Hollinrake said: ‘The Government is tackling red tape, cutting burdens for business, and creating certainty for firms – we have listened to industry, and we are taking action to deliver. ‘By extending CE marking use across the UK, firms can focus their time and money on creating jobs and growing the economy. ‘The move was welcomed by business groups who praised the Government’s ‘pragmatic’ decision on CE marks. Tina McKenzie, policy chair of the Federation of Small Businesses said: ‘It’s welcome to see the continued recognition of CE marked products. ‘This will allow time for small firms to adjust to the UKCA marking system and focus on growing their business both at home and overseas.

Stephen Phipson, CEO of Make UK, the manufacturers’ organisation said: ‘This is a pragmatic and common sense decision that manufacturers will very much welcome and support. ‘This announcement will help safeguard the competitiveness of manufacturers and aid the UK as a destination for investment. ‘It should bring more confidence about doing business in the UK and recognises the need to work with the reality of doing business. ‘Shanker Singham, international trade and competition fellow at the Institute of Economic Affairs think tank, said: ‘The UK’s recognition of the CE mark will ensure British consumers can continue purchasing the likes of medical devices, household appliances and manufactured goods made for the EU market”.

Note that the change was introduced by Kemi Badenoch, Business Secretary, and putative Tory leadership contender. Ten days later, on 10^th. August I published Chapter 3 of Sovereignty 2040 on Slugger O’Toole in a post entitled “Belfast”. Purporting to be written in and looking back from 2040, it included the following passage:

”As far back as 2023, Sunak had performed one of his many about turns on Brexit and re-instated the EU “CE” [Conformité Européenne] product quality assurance marking for British businesses all but abandoning the Johnson Governments proposals for new UKCA ((UK Conformity Assessed) and UKNI (for products intended solely for the Northern Ireland Market) quality assurance marks which were to enable British and Northern Irish products to depart from European standards for products not intended for the Single market.

So much for “Taking Back Control!” Businesses could obtain a CE mark for their products only by paying an accredited agency in an EU country to test and certify their product as conforming to EU standards. “Dynamic alignment” in all but name because they would also have to align their standards with any changes in EU standards on an ongoing basis. It meant that even products produced for and sold in Britain would continue to be tested and certified by agencies in EU countries, as companies were hardy likely to produce the same products to different standards for the British market.

As might be expected, The Mail was apoplectic[1], accusing Sunak of “yet another Brexit climbdown,” but there was remarkably little backlash from Brexiteers. Businesses were ecstatic, of course, because many had already incurred considerable costs preparing their products to meet two or perhaps even three different standards, and many simply did not have the resources to do so. “What was so bad about the CE standards in the first place” was the reaction of one business source who asked to remain anonymous, “it’s a pity they didn’t make this decision a while ago, because it cost a lot of time, created a lot of uncertainty, and hampered business investment.

What my new unionist contacts didn’t appear to realize, however, was that this also meant that “the border down the Irish sea” would be much less significant. Products with the CE mark didn’t need to be checked because they had already been certified as Single Market compliant by an EU certification agency. I thought they would be thrilled and was shocked when my DUP contact declared that this didn’t matter. It was the principle of being subject to EU rules that was wrong. “We can’t have that EU Papist conspiracy and the Irish lording it over us.

I had never thought of the EU as Catholic or Irish!”

Back on Slugger O’Toole Brian Walker asks why If this really is Sunak’s deal with the DUP, why is he taking such a hell of a political risk? And quotes the aforementioned Kemi Badenock as saying:

“I can’t, of course, comment on the Northern Ireland political process which is ongoing, and which I am not a participant to. However, what I will say is that we retain the ability to diverge. That is clear. And I do agree with her that if we are really to seize the benefits of Brexit we need to find that comparative advantage in our regulations with the EU, otherwise there would be no point.”

Indeed, what would be the point of Brexit if it did not provide an opportunity for the UK to engage in regulatory arbitrage with the EU and enable “light touch regulation” in some sectors to encourage businesses to locate in the UK?

Many have argued that one of the main motivations behind Brexit back in 2016 was the EU’s imminent clamp down on money laundering and sundry dodgy financial practices which could have severely impacted on City revenues. While Brexit is often described as an English nationalist project, it was also an economic libertarian project which sought to free the UK from what Brexiteers saw as the dead hand of Brussels Bureaucracy with a bonfire of regulations.

Cue the usual performative outrage from the usual Brexiteer sources. But if Sunak is really taking “one hell of a political risk” it was one he took last August with the support of Kemi Badenoch and at the behest of British industry. It had nothing to do with the Windsor Framework or Northern Ireland at the time.

Brian Walker goes on to outline the main elements of the deal to bring the DUP back to devolution, as gleaned from the twitterings of the Dail Telegraph’s James Crisp:

“These are key elements of the package.

1. “Patriotic” rebrand of Windsor Framework Green Lane to “UK Internal Market Lane”.

2. All new laws to be screened to ensure they don’t have “significant adverse impact” on GB-NI trade. Warm words promising to negotiate more cuts with EU.

3. Legislation guaranteeing Northern Ireland’s place in UK.

4. £3.3bn of funding for Stormont, including money for public sector pay claims.

5. New East-West council on intra-UK trade ties It does not include any renegotiation of WF w/EU – all within wriggle room of existing treaty.”

Let us deal with each of these in turn:

1. Marketing spin. You can paint the lane in Union jacks for all the difference it makes.
2. Not an issue if goods continue to carry the CE mark as previously announced.
3. Already enshrined in the Good Friday Agreement and signed up to by Sinn Féin and the Irish government. Indeed Ireland removed Articles 2 and 3 claiming jurisdiction over Northern Ireland from its Constitution as part of the Good Friday Agreement.
4. My reading is that £3.3 Billion is the minimum required to make good previous budgetary shortfalls and compensate public sector workers for inflation. There is very little, if any, new money for new or expanded projects, services, or initiatives.
5. Might breathe some life into Strand 3 of the GFA, which is supposed to deal with East West matters.

So let us be clear. Nothing in the proposed deal changes the Winsor Framework which itself was essentially a re-brand and more detailed exposition of the workings of the Protocol to the Withdrawal Agreement – which itself has never been renegotiated or changed in any way. The Protocol always provided for a regular majority vote in the Assembly on its continued operation in Northern Ireland.

What it did not provide for was a unionist veto and nothing in subsequent discussions has changed that. In Sovereignty 2040 I predicted that the DUP would be unimpressed by the proposals on the basis that:

“It was the principle of being subject to EU rules that was wrong. “We can’t have that EU Papist conspiracy and the Irish lording it over us”.

There is no gainsaying the fact that European Court will continue to have some limited jurisdiction on the operation of the Single Market in Northern Ireland. If there is a dispute over whether a product in Northern Ireland has been correctly awarded a CE mark, that can only be resolved by the European court. Why on earth would the EU hand over the implementation of its quality standards to a country which isn’t even a member?

The whole point of the Single Market is to prevent regulatory competition between member states where one state might try to attract investment by offering lower regulatory standards than others. It would be a race to the bottom and all goods would have to be checked at every border to ensure they complied with the national standards of the importing nation.

All goods entering the EU must be so marked or they will be checked on entry. Since Brexit Britain has no regulatory agency authorised to issue a CE mark. There has been some talk of Sunak simply introducing legislation allowing some UK agency to issue CE marks for British goods and making them subject to British regulation only. From an EU legal point of view, goods with bogus UK issued CE markets will simply be declared contraband and confiscated on entry.

If you want national control over your own quality standards, invent your own system, as Boris proposed with the UKCA and UKNI marks. The problem is British industry couldn’t be bothered manufacturing goods to a second or third and different standard with a different certification process yet to be invented, and with all the uncertainty and costs associated with that. Northern Ireland is an afterthought in that discussion which concluded last August.

In fairness Sunak has done what he can to help the DUP out of the corner it has painted itself in. The Withdrawal agreement and protocol is a done deal, and while there is provision for elements of the Trade and Cooperation agreement to be reviewed (as is normal in any trade deal) that requires both parties to it to agree, and those discussions won’t start until May 2026.

While the collapse of devolution is a big problem for Northern Ireland, it is a small problem for the UK government and none of the EU’s business. This is about as good as it gets for the DUP, devolution or no devolution, their choice. With Starmer having ruled out formally re-joining the Single Market, there is little prospect of any change under a Labour government.

The big question is what happens if the Good Friday Agreement institutions come to be seen as having collapsed completely and permanently. Direct rule is not provided for in the GFA. There are two parties to the Good Friday Agreement as well, and any alternative arrangements would require Ireland’s approval. Or is the UK intent on breaking international law again?