Why is Brexit so hard to finalise?
Speech by John Bruton, former Taoiseach at the Henley School in the Renaissance Hotel Brussels on Tuesday
ARTICLE 16 IS NO SILVER BULLET FOR THE UK
One of the puzzles in the stand off over the Northern Ireland Protocol is that of discerning what the UK really wants.
The stakes are high, and the effects of failure immediate.
The UK talks about invoking Article 16 of the Protocol. That article allows for a temporary suspension of the application of some provisions of the Protocol, if there are serious difficulties, which would have to be identified. It does not disapply or remove the Protocol. It just allows for suspension of part of it.
Article 16 then says the suspensions should only be what was” strictly necessary” to remedy the identified difficulties, and would have to be “limited in scope and duration”.
It also allows the other side (the EU) to initiate rebalancing (retaliatory) measures.
But the important thing to stress here is that Article 16 is part of the Protocol, and has to be interpreted in light of what the Protocol says.
It does NOT grant carte blanche to walk away from agreed obligations.
The use of Article 16 is subject to respect for the Protocol, which in turn is itself “an integral part” of the Agreement under which the UK withdrew from the EU.
The Protocol recites, as one of its underlying assumptions, a UK guarantee of
“avoiding a hard(North/South) border , including any physical infrastructure or related checks”.
So no outcome of the UK invocation of Article 16, could depart from that prior UK commitment to no hard border .
If it did, it would be stepping outside the Protocol and thus the Withdrawal Agreement itself.
Indeed, by talking about invoking Article 16, the UK is actually accepting the rest of the Protocol as the framework within which its complaints would be adjudicated. That is good in so far as it goes.
If , on the other hand, the UK were to ignore Article 16 and attempt to negate its application by the use of secondary legislation, to evade parliamentary control, this would be another breach of a solemn international Treaty by the UK. It would merit a very robust response from the EU. It would lead to an economic war.
On the other hand , if the UK is only talking about using Article 16, we are dealing with issues of interpretation of existing agreements, not walking away from them. If that is so, we should not be unduly alarmed.
ROLE OF THE EUROPEAN COURT IS AN EXISTENTIAL ISSUE FOR THE EU
But, unfortunately , the UK is accompanying its threats about using Article 16, with a much more radical threat.
This is the UK’s challenge to the jurisdiction of the European Court of Justice ,as the final arbiter on the meaning of EU law, which is to be applied under the Protocol in Northern Ireland in regards to goods covered by the Protocol.
This is a challenge whose implications go far beyond Northern Ireland. It is, in effect, an attack on the legal order on the basis of which the European Union exists.
The European Union is, in its essence, a set of rules.
These rules are based on based on three pillars. These pillars are that they are
+ made, democratically, through the European Parliament and the Council of Ministers,
+ enforced , uniformly, through the agency of the European Commission and
+ interpreted , with certainty, under the final jurisdiction of the European Court of Justice (ECJ).
The UK attempt to deny the ECJ the right of final interpretation of EU rules to be applied in Northern Ireland under the Protocol, is a direct attack on this third pillar, on which the entire EU legal order rests.
The attack by the UK on the jurisdiction of the ECJ may be an attempt to curry favour with EU members, Hungary and Poland, who are having disputes within the EU on the rule of law within their own countries. The ECJ has made adverse findings on some of the decisions of the Hungarian and Polish governments, and the UK seems to want to exploit that as a means of undermining EU unity on Brexit matters.
Some in the UK may be attacking the ECJ jurisdiction because they want to undermine the EU itself. If that trend of thought predominates in the UK, there will never be good relations between the EU and the UK
In adopting this tactic of challenging the ECJ, the UK is not just attacking the Protocol.
It is attacking the entire Withdrawal Agreement .
This is because ,quite separately from the Protocol, Article 174 of the Withdrawal Agreement itself says that, in disputes over the interpretation of the meaning of particular EU laws the ECJ, not an arbitrator, shall give the final ruling on the meaning of that EU law.
The UK demand , if it were to be conceded , would introduce uncertainty about the meaning of EU rules, and would set a deeply destructive precedent.
That is why it will not be conceded, and I believe the UK has known , from the outset, that it would not be conceded.
DOES THE CURRENT UK GOVERNMENT WANT A DECADES LONG COLD WAR WITH THE EU?
This raises a suspicion that the UK may not be negotiating in good faith, and is seeking an excuse to maintain a prolonged confrontation with the EU.
The implications of that, if true, would go far beyond trade.
The Chair of the House Commons Defence Committee , Tobias Elwood MP , worried recently about the effect of the continuing dispute over Brexit on the security of Europe, including Britain.
He said
“There is a 1930s feel to the world today”.
He is right.
Brexit is part of a pattern.
As in the 1930’s, we are now seeing countries (including his own) breaking treaties.
We are seeing concessions being met, not by compromise, but by escalating demands.
There is a breakdown in trust between nations, and in trust in international institutions.
That was the pattern if international relations in the 1930’s
This has been aggravated by disputes over Covid.
The world is less predictable, and more unsafe, than it was five years ago.
As Irish farmers also discovered in the 1930’s, a trade war, with Ireland on one side and Britain on the other, would be devastating for rural Ireland. It could arise suddenly, and unlike climate change , there would be no time for adaptation.
So we must hope that Maros Sefcovic and Lord Frost find a solution soon.
ADDRESSING THE UNIONIST CONCERNS
One must understand that they are seeking to find solutions to genuinely difficult dilemmas, that go beyond customs formalities to include identity, allegiance and national symbolism.
The border for the EU Single Market in goods must physically exist at a precise geographic location or locations.
The UK and the EU agreed in the Protocol that this would be at ports in Northern Ireland for goods arriving from Britain which, by its own choice, is outside the EU Single Market for goods . It does not affect services, taxation or the movement of people for which Northern Ireland remain fully in the UK.
From a practical point of view it is much easier to exercise controls on goods traffic at a small number of ports, than it would be on a 300 mile long land boundary, with 200 crossing points.
On the other hand, the idea of any kind of border control within the UK is difficult to accept ideologically, symbolically, or emotionally for those who have a strong belief in the sanctity of the UK union .
The fact that the UK freely agreed to it such controls in the Withdrawal Agreement, and the fact that many of those who complain about it voted for Brexit with their eyes open, does not remove that emotional, symbolic and ideological difficulty.
WE NEED TO LOOK AT THE WIDER CANVASS OF RELATIONSHIPS
All who favour reconciliation between the two allegiances in Ireland, and all the participants in the negotiations, need to think creatively about how these people can be reassured.
We probably will need to look far outside the parameters of Brexit and trade, and think about how people express their various identities in other ways and might be assured that those identities are respected.
We need to return the broad canvass of thought that underlay the Good Friday Agreement of 1998 and previous attempts at resolving the conflict of allegiances on the island. To use a cliché, we need to think outside the box.
While others should seek to reassure Unionists, Unionists themselves need to do some thinking about how best to maintain the Union, if that is their goal.
This goal will not necessarily be achieved simply by asserting immutable principles, and demanding that others accept them, regardless of their feelings. Instead they need to be persuasive,
The best way for Unionists to preserve the Union would be for them to make Northern Ireland work, to make it work for everybody, to make it work politically, to make it work economically, to make it work socially.
That means making the Good Friday Agreement work to its full potential (North / South and East/West).
It also means making the Protocol, with its privileged access to the EU not enjoyed by any other part of the UK, work for the creation of extra manufacturing jobs in Northern Ireland.