It was no doubt timed to coincide with today’s ‘stocktaking meeting’ of the Joint Committee overseeing the NIP and is part of the ongoing attempt by the Brexit Ultras (£) to pressure Johnson’s government into ‘triggering Article 16’ or, even, simply scrapping the Protocol.
Background
Background
As such it has to be understood against the background of how, throughout the Brexit process, the Ultras have failed to understand or accept the implications of Brexit, and especially hard Brexit, for Northern Ireland and, in particular, the need for a border that hard Brexit causes. As such, it represents one of the core, and perhaps the most unforgiveable, example of the Brexiters' total irresponsibility in advocating a project the consequences of which they neither comprehended nor cared about. Elsewhere, I have written a detailed analysis of many of the twists and turns of this general background.
More specifically, it has to be understood against the background – shared by Duncan Smith and all current Tory MPs, as well as by the government – that the NIP formed part of the Withdrawal Agreement that Boris Johnson and David Frost negotiated with the EU in 2019. More than that, it was the part which was hailed as a triumph for being crucially different to Theresa May’s deal because it ‘got rid of the hated backstop’ and instead created a GB-NI border as part of the GB-EU border.
This was the ‘oven ready’ deal, endorsed by Duncan Smith, that Johnson and all Tory MPs campaigned for at the 2019 General Election. They then all voted in favour of it after they had won the election, and Johnson signed it as an international treaty in 2020. Duncan Smith, notoriously, derided the idea that the details of the agreement even needed to be extensively discussed by MPs as they were already well-understood. So Duncan Smith, quite as much as anyone else, is responsible for the NIP he now denounces.
And in case anyone thinks that the Ultras may have supported it without realising what its effects were going to be in practice then a) that shows gross dereliction of duty and b) is falsified by the fact that, from before its operations were even implemented, they were denouncing the entire Withdrawal Agreement, including the NIP, as not being ‘sovereignty compliant’. This can be seen in the July 2020 report from the Centre for Brexit Policy (of which Duncan Smith is a Fellow and some of the arguments in his article appear in that report).
In this post, I will discuss each of the claims or arguments that Duncan Smith makes. The article is reproduced in its entirety below. Duncan Smith’s text is in normal font within speech marks, with my discussion in italicised font beneath.
Duncan Smith’s Daily Mail article
Duncan Smith’s Daily Mail article
"There can be few people who do not now realise how disastrous the Northern Ireland Protocol is for that part of the UK."
The latest detailed opinion poll evidence shows that the 52% of the Northern Irish public agree that the Northern Ireland Protocol is on balance a good thing for Northern Ireland, whilst 41% disagree. Even amongst unionists, only 11% think it is the most important issue in the forthcoming Assembly election.
"It is divisive, restrictive and is causing real harm to the local economy."
It is true that it is divisive in the sense that its core provision of an Irish Sea border creates a division within the UK single market and that this was done in the face of bitter opposition from many unionists, including the DUP, understandably so, because it offends their core political principle. Duncan Smith knew both of these things when he voted for the NIP. Indeed one can feel considerable sympathy for ordinary members of the unionist community who have been comprehensively let down by both the government and their political leaders. The DUP’s support for Brexit and handling of the real influence it had over the Brexit process is a story of extraordinary political failure. Equally, the process that forced Northern Ireland (like Scotland) to leave the EU against the wishes of the majority is a central problem, about which Smith says precisely nothing.
Claims of economic damage are usually based on the work of Dr Esmund Birnie of Ulster University, much cited by the DUP, but it is based on limited data and comparing the NIP with what would have been the case had Brexit not happened. The fact is that Brexit is economically damaging for the UK as a whole, but is likely to be less damaging in NI than for the rest of the UK, precisely because the Protocol means that NI remains in the European single market for goods, as well as being part of the UK (see also here (£), here (£)). Indeed ONS figures suggest that this is already happening, and the Protocol is protecting the NI economy. And NI manufacturers say that the Protocol is the least of their worries. Of course if Duncan Smith’s point is indeed that Brexit is economically damaging for the whole of the UK (and indeed the EU) then he is right.
"But this terrible arrangement is not just bad for that part of the realm – it’s bad for the rest of the UK as well.
Claims of economic damage are usually based on the work of Dr Esmund Birnie of Ulster University, much cited by the DUP, but it is based on limited data and comparing the NIP with what would have been the case had Brexit not happened. The fact is that Brexit is economically damaging for the UK as a whole, but is likely to be less damaging in NI than for the rest of the UK, precisely because the Protocol means that NI remains in the European single market for goods, as well as being part of the UK (see also here (£), here (£)). Indeed ONS figures suggest that this is already happening, and the Protocol is protecting the NI economy. And NI manufacturers say that the Protocol is the least of their worries. Of course if Duncan Smith’s point is indeed that Brexit is economically damaging for the whole of the UK (and indeed the EU) then he is right.
"But this terrible arrangement is not just bad for that part of the realm – it’s bad for the rest of the UK as well.
That’s because, two years after we formally left the EU, the Protocol still gives Brussels a hold over wider UK policy-making."
Duncan Smith knew or should have known this when he voted for the Protocol.
"For example, it is probably fair to say that if it wasn’t for the pernicious effects of the Protocol, every family in Britain could be £100 a year better off from scrapping VAT on fuel bills.
"For example, it is probably fair to say that if it wasn’t for the pernicious effects of the Protocol, every family in Britain could be £100 a year better off from scrapping VAT on fuel bills.
After all, the power to set our own VAT rates was rightly hailed as one of the benefits of quitting the EU.
And with households facing a cost of living spike, driven by spiralling energy costs, the UK government knew that a cut in VAT on energy would help those struggling with their cost of living and deliver on our manifesto pledge.
But this very Tory-friendly, tax-cutting idea was effectively ruled out because it could not take effect in NI where VAT rates on domestic fuel bills must still match EU levels.
Allies of Chancellor Rishi Sunak may say the VAT cut was ruled out because it would also benefit wealthy people who didn’t need it.
However, thanks to the Protocol, it was also just too politically embarrassing for Ministers to deliver a tax cut which helped with spiralling energy bills in Great Britain but not in NI.
So torn between scrapping VAT in Great Britain and leaving Northern Ireland out, or doing nothing at all, the Government chose to leave VAT on energy in place."
This is what Johnson agreed and Duncan Smith knew or should have known it would be the effect of the Protocol. In any case it is speculative whether this is the reason the UK government isn’t cutting VAT on fuel.
"But that’s not all.
The Protocol also gives the EU power over whether the UK, post Brexit, can change our rules on the state aid we give to industry and the economy at large."
This is what Johnson agreed and Smith knew or should have known it when he voted for the Protocol.
"The EU claims the purpose of the protocol is to protect the Belfast/Good Friday agreement, (GFA) by keeping the north/south border open.
However ironically, the only people now threatening to re-introduce border checks between Northern Ireland and Ireland in the event of a dispute is the EU."
Presumably this is a reference to the brief few hours when the EU considered using Article 16 to halt vaccines being exported to NI. If so, it is not an ongoing threat, and it wouldn’t have entailed border checks, just the non-shipment of vaccines from Belgium. Conceivably, what Duncan Smith means is that if the UK unilaterally refused to implement Sea border checks, then land border checks might well be the only possible option left for the EU – but this is the core problem of Brexit as regards NI, and the reason for the NIP.
"The reality is that Brussels is trying to use the Protocol to do as much damage to the UK-wide single market as they can."
This is paranoid nonsense. Neither Brexit nor the NIP were desired by the EU. The NIP arises, in general, because of the problem Brexit created and, in its particular form, because Brexiters like Duncan Smith preferred it to Theresa May’s backstop. So, yes, it damages the UK single market – but he and others like him are to blame for that, as they are for refusing the EU’s offer of an SPS alignment deal (see below).
"Already the Protocol is leading to real economic harm in the NI economy."
As above, Brexit is harming the whole UK economy, but the NIP is mitigating some of that damage for NI.
"Trade is clearly being diverted to the Irish Republic in contravention of the agreement."
Diversion of trade is occurring but does not ‘contravene’ the agreement. It may be a ground on which to invoke Article 16, although even that is far from being an accomplished fact because it is a safeguarding measure against developments which were not reasonably foreseeable from the Protocol. In fact it was obvious, and should have been obvious to Duncan Smith when he voted for it, that the creation of an Irish Sea border was bound to result in diversion of trade because it created a barrier between GB and NI and GB and Ireland, but not Ireland and NI. But even if it were argued that is not so, all that Article 16 does is to create a temporary suspension of parts of the NIP pending a negotiated solution.
In any case, the mitigations which the EU has proposed would, if agreed by the UK, go a considerable way to reduce diversion of trade. And this would be even more so if the UK were to accept aligning with EU Sanitary and Phyto-sanitary (SPS) rules. This would resolve even more of the practical border issues and, at one stage, was lobbied for by the DUP. But Brexiters like Duncan Smith, and the British government, refuse this solution because of a dogmatic adherence to a very narrow idea of sovereignty. In this, they would now seem to be out of line with Jacob Rees-Mogg’s recent statements (£) that the UK should unilaterally accept some EU rules in order to reduce non-tariff barriers to trade.
"Furthermore, no less a figure than Lord Trimble, architect of the Good Friday Agreement, has made it very clear the EU is now damaging the social balance in Northern Ireland - again in contravention of the agreement."
If “the agreement” means the GFA then a court case has already rejected the argument that it is contravened by the Protocol. If (as implied by its following the point about trade diversion) it means the Protocol, then, as with diversion of trade, ‘societal difficulties’ would not ‘contravene’ but could be the basis for use of Article 16 – but, again, arguably not if the problems weren’t reasonably foreseeable and, again, even if Article 16 did apply all it would do is create a temporary suspension of parts of the NIP pending a negotiated solution. Since the UK and EU are already in negotiations, why does Duncan Smith imagine they would yield a different outcome if done via Article 16?
"There is already a better way to protect the GFA and keep the border open without border checks.
It is called ‘Mutual Enforcement’.
This involves both the EU and the UK mutually enforcing each other’s rules, regulations and taxes for companies exporting into each other’s territory.
Any company operating out of NI would be required to declare that it had met all the obligations contained in EU law when selling goods to the Republic of Ireland.
Any breach of that obligation would be followed up by the authorities in the UK and breaches would carry severe penalties as an effective disincentive to break that obligation, avoiding the need for border checks and safeguarding the integrity of the EU and UK’s internal markets."
This is nonsense. Mutual Enforcement has been endlessly proposed throughout the Brexit process and rejected because, in the words of Professor Katy Hayward of Queen’s University Belfast – a leading expert on the issue - it is not viable. It is simply absurd for the Brexiters to continue year after year to insist that it could provide a solution, or even that it ‘should’. It’s way past time for Duncan Smith and the Ultras to get real.
"The EU’s refusal to discuss replacing the Protocol, flies in the face of the existing agreement.
It was always expected that the Protocol would be temporary.
Article 13.8 of the Protocol makes it clear the protocol can be replaced."
This is nonsense. The Protocol was always intended to be permanent, and as a ‘frontstop’ not a ‘backstop’ – the first resort not the last resort. It can be replaced by a future agreement, but there is no obligation on either the EU or the UK to make (or even to discuss) a different agreement, and until such time as they choose to do so the NIP stands as permanent. If by ‘expected’ Duncan Smith means he believed the assurances which Steve Baker says were given to Tory backbenchers by Dominic Cummings and Michael Gove that the Withdrawal Agreement could be changed later then he is a fool. It was an international treaty, not some trivial document.
"Furthermore, Article 16 of the Protocol states that unilateral action can take place if there are, ‘serious economic, societal or environmental difficulties or diversion of trade’.
All are now present in Northern Ireland."
As discussed above, it is questionable whether these conditions have been met but, even if so, the unilateral action Article 16 allows is limited and temporary and, in itself, solves nothing.
"As I have said, this isn’t just a matter for those living in Northern Ireland but for the whole UK.
The very idea that a part of the UK should find itself subject to the authority of another collection of states on things as important as taxes, without having a say in the decision, is terrible.
Yet that has become the case."
This is what the government agreed and Duncan Smith voted for.
"Whatever happened to no taxation without representation?"
If this refers to things like VAT on energy in NI, then what happened is that Duncan Smith and the government agreed to end it.
"This is why I say it is time for the UK government to show some courage, take unilateral action and end the protocol."
If this means the unilateral action enabled by Article 16, then that doesn’t allow the UK to “end the Protocol”. If, as seems likely, Duncan Smith means unilaterally end the Protocol then this would violate international law, risk significant sanctions from the EU, create a major rupture with the US, jeopardise the GFA and have serious risks for security in NI and perhaps the whole of the UK. It would be an act of gross irresponsibility.
"If the EU really cared about the Good Friday Agreement, it would immediately engage in discussions to replace this temporary arrangement with a much better solution, such as Mutual Enforcement."
In other words, back to the same old problems Brexit poses for NI with no workable solution. And, actually, it is worse than that. One of the big stumbling blocks to Mutual Enforcement is that it requires high levels of trust from the EU. So the proposal that the UK unilaterally ripping up the international treaty it signed only two years ago would somehow be a route to this already rejected solution is a sign of, at best, grotesque stupidity.
"If not, we have to ask ourselves: whatever happened to no taxation without representation?"
See above.
Final thoughts
There’s nothing new in Duncan Smith’s article – he and others of his persuasion have made virtually identical arguments for years now. So why bother with them? Partly precisely because they are not new, and in this sense show the utter intellectual bankruptcy of the Brexit Ultras. But of course they don’t repeat them simply though stupidity. They do so because experience has shown them that if they keep hammering their demands they may well get them met, especially by an enfeebled government. It’s therefore worth challenging them, even though it is boring.
However, the issue goes well beyond being boring. Firstly, it is the refusal to accept what the government agreed to in the NIP which more than anything else has poisoned UK-EU post-Brexit relationships, to all our detriments. To understand that, it’s worth imagining what Smith and the Ultras would be saying if it had been the EU which had immediately reneged on some crucial part of the Withdrawal Agreement.
Secondly, as Patrick Cockburn has recently argued, this running sore means that the government, egged on by the Brexit Ultras outside government, are creating “a permanent condition of crisis” in NI. He suggests that whereas the unionist community might have regretfully accepted the NIP (as indeed implied by their earlier desire to accept SPS alignment), the constant suggestion that the UK might renege on it has actually fanned their opposition.
It is for this reason that Duncan Smith’s article, and, if only there was time, all such writings should be challenged. It is not simply that they are boring, dishonest and stupid. They are also damaging and dangerous.
So torn between scrapping VAT in Great Britain and leaving Northern Ireland out, or doing nothing at all, the Government chose to leave VAT on energy in place."
This is what Johnson agreed and Duncan Smith knew or should have known it would be the effect of the Protocol. In any case it is speculative whether this is the reason the UK government isn’t cutting VAT on fuel.
"But that’s not all.
The Protocol also gives the EU power over whether the UK, post Brexit, can change our rules on the state aid we give to industry and the economy at large."
This is what Johnson agreed and Smith knew or should have known it when he voted for the Protocol.
"The EU claims the purpose of the protocol is to protect the Belfast/Good Friday agreement, (GFA) by keeping the north/south border open.
However ironically, the only people now threatening to re-introduce border checks between Northern Ireland and Ireland in the event of a dispute is the EU."
Presumably this is a reference to the brief few hours when the EU considered using Article 16 to halt vaccines being exported to NI. If so, it is not an ongoing threat, and it wouldn’t have entailed border checks, just the non-shipment of vaccines from Belgium. Conceivably, what Duncan Smith means is that if the UK unilaterally refused to implement Sea border checks, then land border checks might well be the only possible option left for the EU – but this is the core problem of Brexit as regards NI, and the reason for the NIP.
"The reality is that Brussels is trying to use the Protocol to do as much damage to the UK-wide single market as they can."
This is paranoid nonsense. Neither Brexit nor the NIP were desired by the EU. The NIP arises, in general, because of the problem Brexit created and, in its particular form, because Brexiters like Duncan Smith preferred it to Theresa May’s backstop. So, yes, it damages the UK single market – but he and others like him are to blame for that, as they are for refusing the EU’s offer of an SPS alignment deal (see below).
"Already the Protocol is leading to real economic harm in the NI economy."
As above, Brexit is harming the whole UK economy, but the NIP is mitigating some of that damage for NI.
"Trade is clearly being diverted to the Irish Republic in contravention of the agreement."
Diversion of trade is occurring but does not ‘contravene’ the agreement. It may be a ground on which to invoke Article 16, although even that is far from being an accomplished fact because it is a safeguarding measure against developments which were not reasonably foreseeable from the Protocol. In fact it was obvious, and should have been obvious to Duncan Smith when he voted for it, that the creation of an Irish Sea border was bound to result in diversion of trade because it created a barrier between GB and NI and GB and Ireland, but not Ireland and NI. But even if it were argued that is not so, all that Article 16 does is to create a temporary suspension of parts of the NIP pending a negotiated solution.
In any case, the mitigations which the EU has proposed would, if agreed by the UK, go a considerable way to reduce diversion of trade. And this would be even more so if the UK were to accept aligning with EU Sanitary and Phyto-sanitary (SPS) rules. This would resolve even more of the practical border issues and, at one stage, was lobbied for by the DUP. But Brexiters like Duncan Smith, and the British government, refuse this solution because of a dogmatic adherence to a very narrow idea of sovereignty. In this, they would now seem to be out of line with Jacob Rees-Mogg’s recent statements (£) that the UK should unilaterally accept some EU rules in order to reduce non-tariff barriers to trade.
"Furthermore, no less a figure than Lord Trimble, architect of the Good Friday Agreement, has made it very clear the EU is now damaging the social balance in Northern Ireland - again in contravention of the agreement."
If “the agreement” means the GFA then a court case has already rejected the argument that it is contravened by the Protocol. If (as implied by its following the point about trade diversion) it means the Protocol, then, as with diversion of trade, ‘societal difficulties’ would not ‘contravene’ but could be the basis for use of Article 16 – but, again, arguably not if the problems weren’t reasonably foreseeable and, again, even if Article 16 did apply all it would do is create a temporary suspension of parts of the NIP pending a negotiated solution. Since the UK and EU are already in negotiations, why does Duncan Smith imagine they would yield a different outcome if done via Article 16?
"There is already a better way to protect the GFA and keep the border open without border checks.
It is called ‘Mutual Enforcement’.
This involves both the EU and the UK mutually enforcing each other’s rules, regulations and taxes for companies exporting into each other’s territory.
Any company operating out of NI would be required to declare that it had met all the obligations contained in EU law when selling goods to the Republic of Ireland.
Any breach of that obligation would be followed up by the authorities in the UK and breaches would carry severe penalties as an effective disincentive to break that obligation, avoiding the need for border checks and safeguarding the integrity of the EU and UK’s internal markets."
This is nonsense. Mutual Enforcement has been endlessly proposed throughout the Brexit process and rejected because, in the words of Professor Katy Hayward of Queen’s University Belfast – a leading expert on the issue - it is not viable. It is simply absurd for the Brexiters to continue year after year to insist that it could provide a solution, or even that it ‘should’. It’s way past time for Duncan Smith and the Ultras to get real.
"The EU’s refusal to discuss replacing the Protocol, flies in the face of the existing agreement.
It was always expected that the Protocol would be temporary.
Article 13.8 of the Protocol makes it clear the protocol can be replaced."
This is nonsense. The Protocol was always intended to be permanent, and as a ‘frontstop’ not a ‘backstop’ – the first resort not the last resort. It can be replaced by a future agreement, but there is no obligation on either the EU or the UK to make (or even to discuss) a different agreement, and until such time as they choose to do so the NIP stands as permanent. If by ‘expected’ Duncan Smith means he believed the assurances which Steve Baker says were given to Tory backbenchers by Dominic Cummings and Michael Gove that the Withdrawal Agreement could be changed later then he is a fool. It was an international treaty, not some trivial document.
"Furthermore, Article 16 of the Protocol states that unilateral action can take place if there are, ‘serious economic, societal or environmental difficulties or diversion of trade’.
All are now present in Northern Ireland."
As discussed above, it is questionable whether these conditions have been met but, even if so, the unilateral action Article 16 allows is limited and temporary and, in itself, solves nothing.
"As I have said, this isn’t just a matter for those living in Northern Ireland but for the whole UK.
The very idea that a part of the UK should find itself subject to the authority of another collection of states on things as important as taxes, without having a say in the decision, is terrible.
Yet that has become the case."
This is what the government agreed and Duncan Smith voted for.
"Whatever happened to no taxation without representation?"
If this refers to things like VAT on energy in NI, then what happened is that Duncan Smith and the government agreed to end it.
"This is why I say it is time for the UK government to show some courage, take unilateral action and end the protocol."
If this means the unilateral action enabled by Article 16, then that doesn’t allow the UK to “end the Protocol”. If, as seems likely, Duncan Smith means unilaterally end the Protocol then this would violate international law, risk significant sanctions from the EU, create a major rupture with the US, jeopardise the GFA and have serious risks for security in NI and perhaps the whole of the UK. It would be an act of gross irresponsibility.
"If the EU really cared about the Good Friday Agreement, it would immediately engage in discussions to replace this temporary arrangement with a much better solution, such as Mutual Enforcement."
In other words, back to the same old problems Brexit poses for NI with no workable solution. And, actually, it is worse than that. One of the big stumbling blocks to Mutual Enforcement is that it requires high levels of trust from the EU. So the proposal that the UK unilaterally ripping up the international treaty it signed only two years ago would somehow be a route to this already rejected solution is a sign of, at best, grotesque stupidity.
"If not, we have to ask ourselves: whatever happened to no taxation without representation?"
See above.
Final thoughts
There’s nothing new in Duncan Smith’s article – he and others of his persuasion have made virtually identical arguments for years now. So why bother with them? Partly precisely because they are not new, and in this sense show the utter intellectual bankruptcy of the Brexit Ultras. But of course they don’t repeat them simply though stupidity. They do so because experience has shown them that if they keep hammering their demands they may well get them met, especially by an enfeebled government. It’s therefore worth challenging them, even though it is boring.
However, the issue goes well beyond being boring. Firstly, it is the refusal to accept what the government agreed to in the NIP which more than anything else has poisoned UK-EU post-Brexit relationships, to all our detriments. To understand that, it’s worth imagining what Smith and the Ultras would be saying if it had been the EU which had immediately reneged on some crucial part of the Withdrawal Agreement.
Secondly, as Patrick Cockburn has recently argued, this running sore means that the government, egged on by the Brexit Ultras outside government, are creating “a permanent condition of crisis” in NI. He suggests that whereas the unionist community might have regretfully accepted the NIP (as indeed implied by their earlier desire to accept SPS alignment), the constant suggestion that the UK might renege on it has actually fanned their opposition.
It is for this reason that Duncan Smith’s article, and, if only there was time, all such writings should be challenged. It is not simply that they are boring, dishonest and stupid. They are also damaging and dangerous.
Updated 23/02/22: the original version incorrectly referred to Duncan Smith as Smith. This has now been rectified.
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