The EU’s blunder
It immediately became apparent that this was a major blunder by the EU – or more specifically the European Commission – which had been done without regard for the political consequences. Neither the British nor the Irish government nor the Northern Ireland Assembly had been consulted or warned, and nor had Michel Barnier’s UK engagement team. As the news emerged, the Irish government in particular, along with Barnier and the EU Ambassador to the UK, played a key role in getting the situation quickly resolved. It also seems to be the case that the British government was measured and calm in its response, for which it deserves credit, although since then there has been a marked shift in its tone.
In and of itself it was an indefensible error by the EU. But all political systems commit such errors and it was speedily corrected, so whilst there may well be some lessons for the European Commission in what happened the idea that it says anything one way or another about the merits of Brexit is nonsense. Inevitably some Brexiters leapt upon it to claim justification, and some erstwhile remainers professed that it had changed their minds about Brexit. But there was no reason for that except for anyone who imagined that the EU is a perfect institution that never makes any mistakes, which remainers shouldn’t have and Brexiters surely didn’t. And let’s be clear, this episode has not led to the breakdown of trust between the UK and the EU – that was caused by the UK’s behaviour over the last four years or so, years in which the EU has been remarkably consistent and rational. That doesn’t excuse this piece of stupidity but it should put it in perspective.
The key point is that this episode was only possible because of Brexit and in particular because of the rickety and highly precarious arrangements for Northern Ireland which have had to be created to accommodate it. For the EU this means, amongst other things, having to get used to the fact that closing its borders with adjacent third countries is no simple matter. The UK is a third country, but the unique situation of Northern Ireland gives the meaning of that a particular complexity.
The issue isn’t that the EU needs to have any concern for annoying Brexiters. Despite what some in the UK seem to think, the EU does not view the world through the lens of Brexit as they do, and is not particularly bothered about nasty headlines in the UK press. Rather, it is that the EU needs to be attentive to the specific situation in Northern Ireland, not least as this is a matter of significant concern to Ireland which is a member state. In that context, any invocation of Article 16 would have to be a very last resort for a massive emergency.
The EU’s carelessness about this has been jumped on to feed the pre-existing, and wholly unjustified, demands from some unionist politicians in Northern Ireland, as well as some Brexiters outside Northern Ireland, to make use of Article 16 to suspend the operation of the GB-NI border, as mentioned in my post a few weeks ago. This is unjustified primarily because that operation is not an unforeseen or temporary emergency but is the necessary consequence of what the UK and the EU have agreed. Even more unjustified is to opportunistically use what happened on Friday to bolster the again pre-existing demand to scrap the Northern Ireland Protocol in its entirety.
Unsurprisingly, some of those doing so are still pretending that it, and the whole Withdrawal Agreement, are open to wholesale revision in the light of the TCA. Indeed it shouldn’t be forgotten that there is a hard core of Brexit Ultras who have never accepted the Withdrawal Agreement and the Protocol and have long argued for the government to jettison them, and will use any pretext to support that argument. The current row about last Friday's events is therefore a symptom of a much deeper problem.
How have we got here?
Demands to ditch the Protocol beg the question of what should replace it, and here it’s necessary to go right back to the fundamental issues of how it arose. To be extremely brief, it has come about because the hard Brexit of leaving both the single market and customs union necessitates that there be a border somewhere. Since it cannot be a land border between Ireland and Northern Ireland because of the Good Friday Agreement, and there are no technological solutions that would create a virtual border, it has to be a sea border between Great Britain and Northern Ireland.
These facts were ignored or denied by Brexiters before the Referendum, including Boris Johnson, and many of them continue to deny it even now. Yet it was the reason for the ‘backstop’ agreed by Theresa May. Brexiters, including Johnson, said that was unacceptable and he instead agreed, and his MPs voted for, the ‘frontstop’ whereby there would, regardless of whatever got agreed in the TCA, be a sea border of some sort. How intrusive a border that has turned out to be is an artefact of the UK’s decision to prioritise divergence from EU regulations in the name of sovereignty in the TCA.
That is a very short account, but what it means is that the complex and messy situation we are now in – including the ongoing and expected to increase disruptions to goods flows between GB and NI – is the result of Brexit in general, and of the particular way that Johnson’s government chose to implement Brexit. What that is now leading to is not just economic disruption but an emergent and highly worrying political and, potentially, security problem whereby sea border control staff are being threatened with violence and as a result some checks on animal products and food were suspended this week. Note that these threats also pre-date the Friday night Article 16 fiasco so cannot be blamed on it. Just as a land border is unacceptable to, especially, the republican community so too is a sea border unacceptable to, especially, parts of the unionist community. (It is important for anyone with a public platform, even one as limited as this blog, to clarify that there is no evidence of paramilitary involvement in these threats.)
What is now becoming ever-clearer is that Brexit threw a huge rock into the high delicate and fragile machinery of the Northern Ireland peace process, a machinery of complex checks and balances which had as an implicit condition the fact that both Ireland and the UK were within the EU. The Protocol averts the worst of the damage, by preventing an Irish land border, but that doesn’t prevent there being any damage at all. It is an enduring badge of shame that Brexiters were so casual in ignoring what Brexit would mean for Northern Ireland, that hard Brexit was pursued despite what it meant, that Johnson agreed to something without, apparently, understanding what it meant, and that his MPs endorsed it. The shame is all the greater given that the majority in Northern Ireland voted to remain in the EU.
Johnson’s dishonesty and opportunism
The danger now is that the government looks set to use the EU’s stupid mistake as cover to try to completely unpick the Protocol. At the heart of that lies the refusal of the government, including Johnson and Northern Ireland Secretary Brandon Lewis, to accept that the Irish Sea border even exists as a result of the Protocol they agreed to. That it manifestly does, with all the adverse effects that is having on Northern Ireland, is therefore being blamed on the way the Protocol is being operated, allowing Johnson to indulge in the sickening pretence that he can “ensure there is no border down the Irish Sea”. Worse, he threatened to invoke Article 16 even before the Friday row and is doing so again now as if in response to, or somehow justified by, the EU’s error.
The problems that Brexit is currently causing businesses in Northern Ireland, even though they are of the government’s own making, make it reasonable to ask the EU to extend the various existing grace periods – for example on uncooked processed meats – as Michael Gove has done in his letter to Maros Sevcovic, his co-chair of the Joint Committee. And there may be other adjustments that can reasonably be made. But Gove is quite wrong to suggest, in his rather aggressive letter, that the EU’s error provides a reason why the operation of the Irish Sea border should be revised wholesale and entirely in line with UK demands, and still less justified in using the implicit threat of the UK itself now invoking Article 16 if these demands aren’t met (which would in any case be a misuse of Article 16).
The border operation reflects the fundamental, long-term, structural problems of Brexit in general and the Northern Ireland agreement in particular, problems for which Gove is one of those most responsible. The problems it is creating were not ‘unforeseen’, they were set out in the government’s own impact assessment in October 2019 of the Withdrawal Agreement it had reached with the EU. This, remember, was the deal that Johnson hailed as a great triumph of his negotiating skills, the deal he sold at the General Election, the deal all Conservative MPs voted for, and the deal he signed barely more than a year ago.
So it is totally unreasonable to expect the EU simply to ignore all the practical consequences of what Britain has chosen to do to itself. Rather, it is for the British government to row back on its hardline decisions (in the TCA) about, for example, freedom to diverge from EU food hygiene rules. This in turn would reduce the extent of the sea border checks. Pretending they are something to do with the Friday mess-up is dishonest and opportunistic, and suggests that despite the government having met the initial crisis calmly it is now deliberately exploiting it to further antagonize relations with the EU.
It is hard to resist the thought that the government, and most certainly some of the Brexit Ultras, have always been intent on picking away at both the Withdrawal Agreement and the TCA at the earliest opportunity. And the illegal clauses in the Internal Market Bill showed its lack of acceptance of the Northern Ireland Protocol. If it chooses to really ramp up a row over the Protocol, especially to the point of actually suspending it without legitimate grounds, then it may create a very serious situation for Northern Ireland, of course, but also for itself. Nothing could be better calculated to sour the UK’s relations with Biden’s new administration, for one thing. And it bears saying that the European Parliament has not yet ratified the TCA, so it is hardly a propitious moment to effectively renege on the agreements that were its prior condition.
For now, the Joint Committee has issued an anodyne ‘place holder’ announcement, and there will be a further meeting next week, but the omens are not good. We are only a month into Brexit, in the full sense of the end of the transition, and already key parts of it are coming apart at the seams.
The wider picture
The wider lesson of the current situation in Northern Ireland is of the need for this Brexit government to take responsibility for all of the unfolding problems of Brexit. For this week has again seen a slew of reports about the difficulties facing businesses across the UK, underscoring that, as Gove has admitted with respect to Northern Ireland, these are not ‘teething problems’ and are liable to get worse, not better. In a summary of the first month since the end of the transition, Lizzy Burden of Bloomberg News reports how “UK firms are being slowly ground down” by the new barriers to trade with the EU. The BBC Reality Check team provides a similar summary as does the Financial Times (£).
In all three reports there are links to some of the stories referred to in the last few posts on this blog – the evidence base for substantial and permanent damage to UK businesses is now growing, and increasing delivery times mean that UK manufacturing is “close to stalling” (£). Whilst the latter is due to both Covid and Brexit, the report shows that other countries, which are also suffering from Covid, are seeing a growth in manufacturing exports. So it seems fair to attribute the difference to Brexit. I don’t think it is hyperbole to say UK SME exporters to the EU are experiencing a bloodbath from which many of them are unlikely to recover.
It has now emerged that, apparently without having realized it, the government has permanently destroyed British shellfish exporters. There are also new reports of serious problems facing the fashion industry and, as with the situation facing musicians and other performance artists, they arise ultimately from the end of freedom of movement of people but proximately from the UK government’s unwillingness to agree a mobility chapter with the EU as part of the TCA. That could, potentially, still be agreed if, as with the issue of food standards, the government were to change its hardline stance. Doing so would be far more important that the much-trumpeted opening of talks to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP). There’s nothing wrong with doing so, but its economic benefits will be nugatory and it is more designed to make a purely political point about ‘Global Britain’ and the supposed long-term opportunities of Brexit.
That is hardly a priority when businesses are on their knees right now and could at least partly be helped by improvements to the TCA. One thing which any ‘Global Britain’ worthy of the name should certainly be doing is extending the clearly inadequate June deadline for EU nationals to apply for ‘settled status’ (£), as well as simplifying the system and stopping the bone-headed refusal to provide paper documentation when settled status has been established. Doing so would not only be right but would head off what otherwise is going to be yet another monumental mess caused by Brexit.
The full effects of Brexit, now that the transition period has ended and the TCA has kicked in, are still only beginning to be felt. Every single one of them discredits the claims made by Brexiters, including the idea that there was no need to extend the transition so as to allow a genuine implementation period. There’s no point in them continuing to deny these effects, or continuing to try to justify the false claims they made. Now, it is their responsibility to work to mitigate, so far as it is possible, the worst of the damage they have created.
It is difficult to be hopeful that this will happen, not least because of the apparently pathological inability of Johnson and the Brexit Ultras to tell the truth or to take responsibility for their actions. So it seems more likely that the same failings that created this mess will be repeated and repeated. The appointment last Friday of David Frost as the UK’s Brexit and international policy representative is an especially bad sign given that he was the architect of the TCA which is responsible for some of the damage. And with Johnson and Gove now apparently refusing to accept that the Northern Ireland problems flow from their own policies there is little reason to doubt that we are the beginning of years of acrimony and instability as the Brexit process continues to play out. As many of us feared and warned.