By David Campbell Bannerman, Chairman of The Freedom Association
The Northern Ireland Protocol (NIP) row that has gnawed around the edges of the G7 meeting of nations is essentially a clash of two very different approaches towards the same stated aim; but with one side having a deeper, hidden objective.
The EU prides itself on being a rules-based organisation, and in my view is run by technocrats and lawyers - techno-legal I call it - at the expense of democratic politicians. As a result, it tends to be rigid about its rules, absurdly quick to court action, and holds to this approach rigidly and stubbornly to the extent of losing sight of the wider aim. So, it has almost immediately rushed to court action - in the court of European integration, the European Court of Justice, due to the UK unilaterally extending a grace period relevant to the Protocol, despite evidence of serious trouble in Northern Ireland.
The British are more pragmatic and democratic, law-abiding, but more willing to apply the law in more flexible ways consistent with that wider aim. Whilst the EU recites rules and terms, the British point out that the whole aim of this approach is now at risk due to the reaction to the way it is implemented.
So, on the Protocol, the EU claims it is to protect the Good Friday Agreement (GFA)/Belfast Agreement that underpins the Northern Ireland Peace Process - which I worked on some years ago when it started, as a Government Special Adviser. We British clearly want to respect the GFA and to retain the peace in Northern Ireland. So important is this aim that it forms Article 1 of the Protocol.
The EU claims that any failure to implement the Protocol is a threat to the Good Friday Agreement, except they just mean one side and one community in Northern Ireland. Unfortunately, it seems that the instinctive Irish Catholic American stance, embodied by the Kennedy Clan and Ted Kennedy’s closeness to Sinn Fein, is now being reflected in President Biden’s one-sided take on the problem. If The Times report is correct that the most senior current diplomat in London, Ms Yael Lempert, read out a ‘reprimand’ – a ‘demarche’ – about ‘inflaming’ the process to Lord Frost and our Government, then the sooner a more informed and balanced Ambassador is appointed, the better for all. President Clinton gave four speeches in Northern Ireland in my time, all to different communities and brilliantly reflecting their concerns and wishes. Biden has in contrast blundered into this row ill-informed and lacking key understanding, as has the Speaker Nancy Pelosi, whom I met in London. They see the Protocol as protecting the GFA, but this just isn’t the case.
OK, so clearly they don’t want a return to IRA/nationalist violence and maintain this would happen with an enforced North/South Border. But they say next to nothing about the other key community in Northern Ireland - the Unionist/Loyalist community, loyal to Britain. It is this community who are now increasingly resentful, distrustful and isolated by the implementation of the NIP. The traditional ‘Marching Season’ due to start shortly, commemorating William of Orange’s (hence the colour) win at the Battle of the Boyne on 12th July 1690 over forces of King James II, deposed by the Glorious Revolution in 1688, and with the vital Bill of Rights following in 1689 that confirmed Parliamentary sovereignty as we know it. There have already been riots and disorder, but any further EU intransigence will literally pile more fuel on the commemorative bonfire. Time is short.
This is not some academic debate, it is very real and very dangerous. In the Peace Talks I met ex-Loyalist terrorists who had engaged in violence - one had machine-gunned a bus queue; another stabbed a Sein Fein councillor and his girlfriend to death. If the EU crosses its modern representatives, there is a real danger of a return to violence. They won’t be putting a counter case in the ECJ, but they may take action against the EU directly - its customs officials in Northern Ireland have already been disgracefully threatened. But attacks in Dublin or Brussels are not beyond the bounds of possibility, and no one wants to go back there.
Essentially, we are at a crossroads on the Protocol now. The decision is either:
1.) To make do with the NIP; but the EU agrees to act reasonably and not treat goods arriving from GB as if arriving from dodgy East European gang sources or in Rotterdam from unethical Asian manufacturers. Maybe an agreed limit on the number of checks – 2% is the normal rate not 20% - might ease the situation. As Raab has said: the “EU must be less purist, more pragmatic and more flexible in the implementation of it.” The nub of the problem is less the actual agreement – though that is very challengeable – but the unreasonable implementation of it by the EU.
The World Customs Organisation, which the EU and UK are part of, has long pushed for ‘intelligence led’ customs, as does the EU’s Union Customs Code 2016, meaning checks are only done if there is some information that the goods are faulty or the company trading them suspicious.
The excessive and provocative degree of checks suggests a deeper and more sinister EU agenda: that the EU wants to use Northern Ireland as a lever to force Britain to accept its rules. It keeps pushing this as a simple solution - accept EU agricultural standards – food and veterinary - now and automatically in future and 80% checks will miraculously disappear. But the practical effect of this is that the UK has its hands tied when it comes to doing trade deals as it is no longer in control of some of the core parts of free trade deals - agricultural goods.
Now the EU has good reason to fear competition from cheaper non-EU agricultural goods coming to Britain, because its Customs Union is protectionist and keeps EU food prices at least 20% higher than world food prices. There is also what Dominic Raab alleged as Brexit Secretary three years ago: that senior EU figures implied losing Northern Ireland was “the price the UK would pay for Brexit” – that the EU had a wish to “carve up” the UK. So, there are deeper political and economic reasons for this unreasonable stance.
2.) The second option is more fundamental and profound, but is cleaner and neater. That is for the UK to declare that the Protocol is not working, that it is leading - in the legal language of Article 16 - to “serious economic, societal or environmental difficulties, that are liable to persist, or to diversion of trade.” There are plenty of grounds for this – the First Minister of the Northern Ireland Assembly, Arlene Foster, was dramatically toppled by the backlash from the Protocol, whilst serious riots and disorder have been on the streets on a scale not seen since before the Peace Process, and a return to staking out targets. Trade has been hit hard by checks on certain products – with chilled food and the iconic sausage now at urgent risk.
So, if the UK invokes Article 16 of this Protocol – and Boris Johnson has rightly and firmly mentioned Article 16 a number of times, including in Parliament - and so suspends this ‘safeguard’ (emergency) clause. The EU actually did this for a few hours over vaccines, before withdrawing it. So what happens next?
Either the Protocol is renegotiated to make it more flexible – perhaps we could agree to an upper limit on the checks made? 2% are the normal checks - not 20%, more than for Rotterdam or Eastern European goods - or for independent experts to rule on what is actually reasonable. Or go further and remove Article 5, referring to Northern Ireland being in the EU’s Customs Union for agricultural goods.
But President Macron has made it clear “Nothing is negotiable. Everything is applicable.” So, if the Protocol cannot be renegotiated, nor the bigger Withdrawal Agreement which contains it, and remains suspended permanently or annulled, what then?
Technically, as Northern Ireland will then be out of the EU’s Customs Union for agricultural and industrial goods, there will have to be – shock, horror! - a border on the island of Ireland. But that doesn’t mean a ‘hard’ border.
Firstly, technically, there are plenty of invisible, soft borders now – a currency border (Euro/£) without exchange controls or checks; tax rates – different VAT and corporation tax rates, miles go to kilometres to the South. But there is a Common Travel Area.
Second, there have been practical fixes before. The UK earlier signed up to EU Sanitary and Phytosanitary (SPS) measures – as Ian Paisley memorably quipped: “Our people maybe British; but our cows are Irish!”, so their standards have been the same both sides of the border, suggesting pragmatism – this avoided an EU ban due to Foot and Mouth.
Third, there is no need. In giving evidence to Parliamentary committees, both British and Irish senior customs officials have made it clear there is no need for a ‘hard border’ – meaning physical checks on the border line, with barriers and peaked hats. This all went with the Single Market in 1992.
There is no rationale for a hard border: borders are in computers these days, with checks only done on the basis of perceived risk or intelligence information. Britain has the CHIEF system (Customs Handling Imports and Export Freight), and is upgrading to the massive Customs Declaration System. 2017 evidence by Chairman of the Board of the Irish Revenue Commissioners, customs expert Niall Cody, confirmed to the Irish Dail very low checks would result: “the EU policy is to go to an IT-based customs process that is totally paperless.”
Also, most exports and imports are done under a ‘Trusted Trader’ scheme where basically traders are checked up on as an organisation in advance and if satisfactory, and regular - such as regular movement of ingredients and semi-processed product for Guinness or Kerrygold back and forth – then very few actual checks are made.
When I visited Britain’s biggest container port, Felixstowe, they informed me only 4% of incoming containers are checked on such grounds. Niall Cody explained: “In 2016, 6% of [Irish] import declarations were checked and less than 2% were physically checked… The low level of import checks is the result of pre-authorisation of traders, advance lodgement of declarations and an extensive system of post-clearance checks, including customs audit, which are carried out at a trader’s premises… There are currently 133 AEOs (Authorised Economic Operators) which account for 82% of all imports and 89% of exports.”
So, between 8 to 9/10 movements are covered by Trusted Trader like schemes, used a lot at the US/Canadian border. Only 20% of Northern Ireland’s exports go South to the Republic anyway and we are talking about 0.02% of the EU’s GDP.
There is an international scheme too – the common transport convention – that allows flow of trucks containers without checks, such as from Dublin to Paris via Belfast.
The problem with a border in the island of Ireland has already been mostly sorted by the Protocol – checks are done for goods (‘at risk of’) heading South are already checked well away from the actual border such as Larne, near Belfast. That bit is working – it is the GB/NI checks that are not. This arrangement could now be adapted to handle cross border UK/EU traffic. Maybe extra facilities could be added elsewhere, but the principle is established.
I have written or helped to write three papers on a way of solving the border issue, and sat in Number 10 discussing them. May was reportedly terrified into believing a border issue would lead back to war. I never understood why the issue had become so totemic when practical solutions were always at hand and customs experts all agreed a hard border wouldn’t happen. I concluded that a solution was not wanted because a free trade agreement wasn’t wanted, because of this wider, deeper game by the EU and Remainer allies in Britain to keep the UK as enmeshed as possible in EU rules, making rejoining the EU much easier.
So, if practical to do, what about the consequences of doing it?
It is worth mentioning a court case challenging the Protocol for the lack of consent inherent in the Good Friday Agreement. I witnessed first-hand how it was built on consent. If proven that the NIP was incompatible, this would be helpful for the UK case.
But whatever happens, it is likely that the EU will seek to ‘punish’ Britain in a highly legalistic way and suspend parts of the related trade deal, The Trade & Cooperation Agreement (TCA). President Macron in particular has been threatening tariffs and a mini trade war has been explicitly [threatened] as a sanction.
But how sensible and realistic is this really? Sure, the EU could impose some pain, as it did against US goods over their recent trade war. But with Britain we are the main customer with a normal £95 billion goods deficit with the EU - in short, we import far more than we export to the EU and have therefore a rich picking of our retaliatory tariffs. Should we slap tariffs on German cars, French wine, Belgian chocolates perhaps?
That won’t help Macron when facing an already difficult re-election campaign as President. There is already hardening evidence that whilst UK exports to the EU have held up now as normal, imports from the EU into the UK have fallen significantly. The British customer does seem to be reacting to such threats already by avoiding EU goods. This would only increase.
The form on bullying – it punished Switzerland for seeking to limit free movement by blocking Switzerland from the Horizon research programme, and trade talks failed after 7 years. No doubt a package of irritants would be formulated as the EU did in its recent US trade war over Airbus/Boeing subsidies. But under the wider Withdrawal Agreement the EU benefits greatly from settlement rights for 5 million EU citizens – 1 million more than estimated – and from continued cash payments for various agreed schemes and liabilities. The EU is not in the greatest financial position just now, so suspending any payments could bring pressure.
In conclusion, none of these options is too difficult to contemplate. They are doable and survivable. If being prepared for stronger solutions makes the EU see sense and adopt a more workable implementation of the Protocol that might solve the main issues, at least until the Assembly can revisit the Protocol after four years. But I don’t see any such contrition – the EU regards this as an opportunity to flex its muscles, to do down an over-successful independent upstart Britain.
So, I think there is growing inevitability that the Protocol is suspended under Article 16, and soon, before tensions arise around the Marching Season. I think we can take any punishment meted out in our stride and reciprocate with surprising power and effect.
The EU does need to be shown its increasingly bellicose and self-important approach, and dangerous games with a vital part of UK territory, are totally unacceptable. In the end, this is again about sovereignty. The Protocol was better than the original disastrous Chequers mess May and her advisers managed to concoct. If it has been a useful stepping stone towards a more acceptable and long-lasting arrangement, that sees Northern Ireland properly free of the EU - as Great Britain already is - then it will have fulfilled its purpose. In my view, we needed to get out of the EU first in order to be sure we were free and able to come back and negotiate a better long term deal.
But now it is time to be bold, for the sake of the British Union. We have heard nothing but bluster, arrogance, unreasonable behaviour and threats from the EU. It is time to call the EU’s bluff. Let them do their worst. It’s time to end the Protocol.
David Campbell Bannerman is a former MEP of 10 years (2009-19) for the East of England. He is a leading Brexiteer and strategist, with an expertise in international trade.