A Formula of Diplomatic Etiquette
When my great-grandfather was deputy head of the Royal Irish Constabulary during the troubles at the dawn of the 20th century, he considered Whitehall to be the main obstacle. Were he alive today, his views would probably not have changed. The Northern Ireland Protocol is an example. It all started from a good idea. The Irish land border is 499 km long, about 10% longer than that between France and Germany. Nearly 300 public roads cross it. Contrary to the prevailing wisdom, border posts and customs checks existed along it, albeit not very effectively, for the 70 years up to the UK and Ireland joining the Single Market in 1993. Brexit meant that there had to be a border with customs checks between the Republic of Ireland and the UK. As the land border was not really enforceable, moving one in the Irish Sea would be more practical.
The UK was not too bothered about goods moving south to north but the EU was very exercised about goods moving from the UK into the Republic. So far, so good but, at this point, Whitehall lost the plot. What should have happened was that goods coming into Northern Ireland were demarcated “north” or “south” with the former needing no paperwork or customs formalities and only the latter receiving the customary checks by EU officials. The problem was that the EU were only prepared to give a free pass to goods originating in Northern Ireland if it remained, in effect, in the EU with all its rules and regulations. They ignored the reality that Mrs May’s government had already adopted all the EU’s rules and regulations to smooth the transition.
The EU therefore insisted that shipments from Britain to Northern Ireland would, after all, be required to meet the full bureaucracy. In effect the EU would annex Northern Ireland and, contrary to Boris Johnson’s “over my dead body” claims, there would be a full not-quite-so-Great Britain/EU border in the Irish Sea.
The EU’s interpretation of this was enshrined in the Protocol which, in order to get the main deal through, the UK government signed and Parliament endorsed. The EU Parliament has yet to do so which may prove helpful. “Protocol” is a French word meaning a “formula of diplomatic etiquette”. In other words, it specifies polite behaviour. Its wording is indeed polite with much emphasis on the need to cooperate, but the substance is all take by the EU and give by the UK. For example: “Accordingly, nothing in this Protocol shall prevent the United Kingdom from including Northern Ireland in the territorial scope of any agreements it may conclude with third countries, provided that those agreements do not prejudice the application of this Protocol.” (Article 4). In other words, the Protocol takes precedence over any international deals the UK might do. Some doubt that Mr Johnson, never a man for detail, has ever read it cover to cover.
VAT is a minefield. So far as VAT on goods is concerned: “Northern Ireland is treated as if it were a Member State.” (p.5) I am not clear whether this means that the part of the VAT take known as the “VAT-based own resources" is handed over to Brussels as it is by other member states. On the other hand, Northern Ireland is treated as part of the UK for VAT on services.
So, having got into this mess, how should the UK now proceed?
The three alternatives are firstly to tear it up and face the consequences. Secondly, having unilaterally postponed the worst of the paperwork until September, the government could keep doing that until the Belfast government can legally reject the Protocol in 2024. Finally, it could be renegotiated. The first of these would be unlikely to bring the whole Brexit treaty crashing down and it would have the advantage of dumping the hard border problem on the EU. The Good Friday agreement, finalised long before Brexit was envisaged, has nothing to do with the border issues.
The main problem with the first two is that the UK is developing a reputation for reneging on EU agreements and they would make that worse. This damages the UK’s international new dealings and ability to pressure others into conformity. The Protocol allows for independent arbitration but unilateral UK action makes that less likely to be favourable.
The reality is that the priority for all three options is to restore the UK’s reputation for compliance and create a climate where the UK is seen as the victim, not the transgressor. The EU has blocked any attempt to make the Protocol workable but this intransigence is not widely appreciated. As it stands, the Protocol is costly for the UK without any financial benefit for the EU. This lies behind the intransigence: streamlining it has no financial benefit for the EU either.
There are wider reasons why genuine cooperation would benefit the EU and the Republic of Ireland in particular. They need to be formulated and marketed but this has not happened.
Since the current postponement of much of the paperwork was announced in March, the UK government has been entirely silent on the matter. Discussions may be going on behind the scenes and a secret plan may be evolving but, if so, they are symptomatic of the lack of openness that has persisted since the Protocol was first mooted. The House of Commons Select Committee has done its best to help but all the evidence to date, bar one, has been about the problems caused by the Protocol, not potential solutions.
The Protocol requires that the minutes of the meetings of the joint committees remain confidential but that does not prevent the UK publicising the problems, sensible solutions and the obstinance and intransigence of the EU which is failing to cooperate. This publicity campaign is needed in the USA, the Republic of Ireland and the rest of the EU in particular.