It appears to have been a wee bit of good luck to have sat out the initial consternation over the revelation of the Government’s plan to pass legislation that would “overwrite” the Brexit Withdrawal Agreement. Recall that the Withdrawal Agreement, unlike the Political Declaration, is a treaty, even if it envisaged that portions would be superceded by a trade pact.
For those of you not following this story closely, the state of play on Monday, courtesy the Financial Times:
The UK is planning new legislation that will override key parts of the Brexit withdrawal agreement, risking the collapse of trade negotiations with Brussels.
Sections of the internal market bill — due to be published this Wednesday — are expected to “eliminate the legal force of parts of the withdrawal agreement” in areas including state aid and Northern Ireland customs, according to three people familiar with the plans….
The UK internal market bill, outlined in a 100-page white paper in July, is designed to secure the “seamless functioning” of trade between England, Wales, Scotland and Northern Ireland after the UK leaves the EU’s single market and customs union at the end of this year…
Under the withdrawal agreement, the UK must notify Brussels of any state-aid decisions that would affect Northern Ireland’s goods market, and compel businesses in the province to file customs paperwork when sending goods into the rest of the UK. But clauses in the internal market and finance bills will force the UK courts to follow the new UK law rather than the EU deal, diluting the ability of the protocol to intrude on UK state-aid policy.
The autumn finance bill…is also expected to overwrite a third aspect of the Northern Ireland protocol covering the payment of tariffs on goods entering the region, said those familiar with the plans.
Officials say the plans risk poisoning the prospects of an eleventh-hour deal…
A second person familiar with the impending bill said [the UK chief negotiator] Lord [David} Frost had personally driven the decision to take the “nuclear option” of overwriting the withdrawal agreement, despite progress being made in talks on implementing the Irish protocol.
A simplified schematic of the sticking point:
The Financial Times comments section, which normally has some fairly forceful Brexit defenders, had nearly 3000 comments, virtually all of them varying takes on the UK demonstrating itself as being not agreement capable.
And recall that Boris Johnson can’t pretend to be victim of Theresa May’s handiwork. He came into office, determined to “get Brexit done,” negotiated this very same Withdrawal Agreement, which he also persuaded Parliament to approve. So he didn’t read the fine print and now has buyer’s remorse?
Clive, who has become our house Brexit defender, argues that the Withdrawal Agreement was a mess. While that is no doubt true, parties enter into contracts with slipshod provisions all the time, and a treaty has more gravity than a garden variety commercial contract. It is bad faith to go off and say you’ll just make up your own provisions in place of inconsistent or overly vague or loose language. In the private sector, you’d amend the agreement. In the international context, you might enter into a side deal to clean up the defective parts.
But Sir Ivan Rogers appears to have anticipated a row like this. Recall that he warned several times that trade deals had always been done between parties that wanted to get closer, never ones wanting more space. The UK upending the table appears to be it acting out that it really doesn’t want to be hostage to the things that go into a trade agreement.
There was also a lot of fulminating on Monday as to whether the UK had violated international law or whether the relevant sections of the Withdrawal Agreement were so kludgey that it arguably hadn’t. The Government settled that issue on Tuesday:
? Brandon Lewis confirms the Government will break international law on EU Withdrawal Deal:
"Yes, this does break international law in a very specific and limited way". pic.twitter.com/6B8pU5M2cH
— Adam Schwarz (@AdamJSchwarz) September 8, 2020
This admission didn’t go over well even among Tories. From John Grace at the Guardian:
What followed was a near-universal pile on from both sides of the house, with only Iain Duncan Smith, John Redwood and Steve Baker rushing to Lewis’s defence. The kind of support Lewis could have done without as all three seemed to imply that Boris had promised them last year that he would renege on the Northern Ireland protocol, which was the only reason they had voted for it in the first place. Besides, it was vital that the UK could continue to offer state aid to tech companies, such as the one that had delivered the “world-beating” test and trace coronavirus app. By the end Lewis was all but begging them to shut up.
Theresa May was first to go on the attack. The UK had signed the protocol and it was our duty to abide by it. What would be the consequences for any other international treaties if the UK could not be trusted to keep its word? We would be no better than any of the other failed, rogue states the UK was always so quick to deplore for doing the same thing. Tory Simon Hoare made much the same point, as did a host of opposition MPs.
And there was plenty of other disapproval:
"The idea that you could re-write your part of the agreement is just unacceptable. It's a breach of international law."
In an exclusive interview former US Ambassador, Sir Kim Darroch, responds to suggestions the PM could modify the Brexit withdrawal agreement
22:45 | @BBCTwo pic.twitter.com/TYXE417xxi
— BBC Newsnight (@BBCNewsnight) September 8, 2020
No Attorney General in modern times has so condoned state illegality as Suella Braverman. At least one senior official has resigned over breaching treaty obligations. More expected to follow. Wholly unprecedented. The disintegration of the rule of law – the Brexit curse.
— Will Hutton (@williamnhutton) September 8, 2020
The Government’s top lawyer left in protest. From the Financial Times:
The head of the UK government’s legal department has quit over Boris Johnson’s proposal to row back on parts of last year’s Brexit deal relating to Northern Ireland.
Jonathan Jones, the Treasury solicitor and permanent secretary at the Government Legal Department, is the sixth senior Whitehall official to resign this year, amid growing tensions between the prime minister and staff at the top of the civil service…
Sir Jonathan did not explain his decision in a short resignation letter posted online. But two officials with knowledge of the situation told the Financial Times that he was leaving his position due to a dispute with Downing Street over its plans to challenge parts of the Brexit withdrawal agreement.
Those close to Sir Jonathan said he was “very unhappy” about the decision to overwrite parts of the Northern Ireland protocol, part of the 2019 withdrawal agreement, with new powers in the UK internal market bill.
An ugly part of this picture is the UK attorney general, Suella Braverman, appears as well qualified to hold that post as Marcie Frost is to head CalPERS. While that may not technically be fair, since Braverman does have a law degree, but Richard North reminds us that Marina Hyde has called Braverman, “leading invertebrate.”
Both the Irish Times and the Guardian quickly ran stories quoting Congresscritters saying that any UK action that would undercut the Good Friday Agreement would kill any US-UK trade deal.
Jolyon Maugham is also considering how to petition the courts to block the proposed bill. From his Good Law Project site:
As was reported on Monday and Brandon Lewis, the Secretary of State for Northern Ireland, confirmed today, the Government is making deliberate plans to break the law. It wants to breach the terms of a treaty it signed with our biggest trading partner only seven months ago.
That decision by Ministers would breach the Ministerial Code, a point confirmed in this recent Court of Appeal decision.
The widely respected head of the Government Legal Department – Sir Jonathan Jones – has resigned. The Financial Times suggests he did so after his advice on the unlawfulness of the Government’s conduct was contradicted by that given by the Attorney General, Suella Braverman.
Ms Braverman was appointed AG after a modest legal career and her appointment has been controversial…
Taking action is not free of difficulty but we have already initiated preliminary discussions with several leading Counsel around what seems to us to be a clear breach of the Ministerial Code.
The Government has argued (see here, for instance) that text in the Withdrawal Agreement (Chapter 7, Section 6) provides that “Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market” and so the UK would be within its rights to take the position it is asserting in its planned legislation. But this scheme has backfired between Northern Ireland Minister Lewis conceding that the bill would breach international law and Jonathan Jones resigning, whatever benefit the Government thought it might cinch domestically with this gambit looks instead to have turned into a black eye.
And that’s before getting to the fact that a move like this, so close to the drop dead date for a trade agreement, looks like just another poke in the EU’s eye. And it’s not as if the UK does not have some legitimate beefs about the EU’s posture, such as its extreme position on fishing rights (although Richard North has argued that any effort to divvy the resource is Solomonic, in a bad way, that the cost of inspection and enforcement would be so high that the UK would be better off to let the EU have all the fish and pay UK fisherman to take up knitting).
The real problem is that there is no way to preserve the Good Friday Agreement and not have a fudge for Northern Ireland that violates the UK’s obsessions with territorial integrity and not having the EU in its hair. Theresa May did work that out; that’s why her version of the Withdrawal Agreement treated the backstop as a “Don’t touch that button” feature, with strong requirements for both sides to work out some other remedy pronto. But May pinned her hopes on a techno-magical way out, and that’s not in the cards.
So it would be better if I were wrong, but it looks like the UK has officially thrown the steering wheel out the window and is going pedal to the metal for the hardest of hard exits. Good luck to our readers across the pond.
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A scurrilous accusation ! But probably the worst sort of accusation, a true (ish) one !
For the Irish Protocol which was indeed a fix to no infrastructure (or hard border) on the island of Ireland and the UK government’s fetishising for territorial integrity, I think it’s more a case of while the UK was okay, or fairly okay, with fudge of a particularly thick gloopiness (the establishment of the UK (NI) mini-Member State-lette which meant Northern Ireland adhered to EU Single Market rules for goods and phytosanitary products), it wasn’t at all okay with the imposition of Exit Declarations on goods moving East/West (from Northern Ireland into the rest of GB).
The Commission read that into the Irish Protocol. But nowhere will you find that explicit requirement in there.
The UK government has to legislate in the next few weeks to get the necessary statutes created to implement the Irish Protocol. Otherwise, it would be in breach of the overall Withdrawal Agreement because it wouldn’t have moved legislation to turn an airy-fairy treaty-like document into something a UK court (and public bodies, businesses too, for that matter) could enforce. But if it didn’t draft the legislation to include Exit Declarations somewhere in there then this would have crystallised the dispute over what is the correct reading of the Irish Protocol.
So the UK government had no other option. Either it didn’t move the required legislation (and be in breach of the Withdrawal Agreement) or it could just say, in effect, what the heck, we’ll just have to decide unilaterally what we think should happen (and be in breach of the Withdrawal Agreement). It chose the latter.
In effect, it called the Commission’s bluff. If the Commission thinks it can bounce the UK government into agreeing with its interpretations of the Irish Protocol, simply because the UK government will run out of runway, the UK government has decided it won’t play that game.
I didn’t mean it to sound pejorative but your stance for the last few months has seemed somewhere between devil’s advocate-y to pissed off at the EU, so Brexit defender by default.
And I am not certain about the hassle of the Exit Declaration. I assume the point is to make sure goods are really going to Great Britain and make it more difficult for them to be smuggled into the EU. This is the sort of thing Richard North is good at and if he addressed it, I missed it.
So if I am correct (and I may not be) that the Exit Declaration is seen by the EU as a way (and in their view less bad for the UK than other options to prevent smuggling) then the EU would perceive themselves as not having leeway (or at best, would see the onus being on the UK to suggest another remedy if this one sticks in their craw).
No, you were quite correct, and I suppose I am guilty as charged !
The problem with Exit Declarations is that, while Barnier is entirely correct to state that they are required to comply with the EU’s Customs Code (https://www.bbc.co.uk/news/uk-northern-ireland-53094965):
… the UK can comply fully with this by requiring shippers to account for them as Entry Declarations if they attempt (either accidentally or deliberately i.e. smuggling) to re-enter the EU from the UK. To simplify, it’s a perfectly valid and unarguable statement that all goods leaving UK (NI) for the GB mainland will be leaving the EU’s Single Market. Therefore why would anyone need to document this, it is a fact merely by their transiting across the Irish Sea. As the UK Government’s argument was detailed:
It was therefore up to the Commission to refute that argument and to explain how it could adhere to the “unfettered access” clause in the Irish Protocol.
If both parties (the EU and the UK) had — willingly — signed up to an agreement with contradictory clauses then it is beholden on both of those parties to agree a mutually satisfactory remedy. But all the Commission had to do (and it must have been aware of it and used it as a negotiating tactic) was to simply sit there and reject the UK government’s argument but all the while failing to offer either a counter-argument or a counterproposal which could meet the Commission’s obligations (“unfettered access for NI to the UK internal market”) and run down the clock.
The UK government would then have either failed to legislate (a breach of the Agreement), failed to comply with the Agreement’s requirement to resolve disputes in the Joint Committee (a breach of the Agreement) or cave to the Commission’s demand for Exit Declarations and the costs this would incur for NI business.
The failure of the Commission to table a solution which complies with its obligations to preserve unfettered access for NI to the UK internal market and certainly give the impression of running down the clock to force a concession isn’t the best example of good faith dealing I’ve ever seen.
The point is not re-entering the EU market. The point is safety, for example sanctions.
So if the EU has sanctioned target country, it will not allow the goods under sanction to enter any country that does not have it sanctioned too, as that would be clearly available for re-export.
Nothing to do with single market reentry.
So what would prevent a fix being that the UK agrees to mirror the EU’s sanctioned countries list? It’s difficult to foresee a situation where they wouldn’t be kept in synch (shared NATO commitments with many EU Member States and the U.K. being a UN Security Council permanent member — it stretches credulity that the U.K. wouldn’t follow its own UN resolution on sanctioned countries and the EU wouldn’t achieve much acting unilaterally without the US and the U.K. joining in with a new definition of a sanctioned country). And even if it were to happen, why couldn’t that be worked through in the Joint Committee?
Or conversely, what happens if the UK and the EU diverge in their classifications of sanctioned countries — presumably that would scupper the entire Irish Protocol (otherwise UK (NI) will need a different sanctioned countries list to the UK’s)?
It’s more complex than just sanctions, but in theory, yes, there can be an agreemtn on “safe” country, and the EU already has a few ones. But as I wrote below, the EU has no appetite for running a whole bunch of separate treaties ala Swiss.
The question is if the UK refuses to imlement it, will the EU force ED on any imports into the NI? I wonder whether that would technically break the protocol or not.
Ah, if only Barnier has explained his reasoning as to why Exit Declarations were not only a solution to the UK’s compliance with the Union Customs Code in respect of UK (NI) but the only solution. And, how Exit Declarations were not “fettering”.
But we can only speculate, given we’ve merely got his “non” to the UK’s policy approach.
Perhaps we’ll hear more from Barnier on this after his latest round of Brexit negotiations in London in the next few days. Even, though, if he says something by way of an explanation for the Commission’s stance, that’s not a good look. Because he could have said whatever he might be about to say in June when the UK Government published its Command Document. It’s telling that we’ve not heard the usual story from Barnier about “we don’t know what the UK wants…” — the UK government has been abundantly clear what its thought process is on this.
I’m trying to be neutral and keep an open mind on this one (as Yves said, being spot on, I’m always ambivalent in judging the UK government’s actions because yes, 1) they are hopeless, buy then 2) the EU are not whiter-than-white, either) but I don’t think Barnier emerges with much credit even in the most generous interpretation of events and — on a harsh interpretation — has himself breached the terms of the Withdrawal Agreement in respect of good faith dealing and being expeditious.
And the solution is a trade agreement that declares that the UK and the EU recognise each other as a safe country, and hence do not require export declarations. Which would very likely be included in any reasonably comprehensive trade agreement (but, given the “no more Swiss”, is unlikely to be created on its own).
Well I, for one, always look forward to your intelligent and incisive contributions, and not just on Brexit. Just out of curiosity Clive, how do you think the resignation of Mr Jones relates (if at all) to the UK’s decision as you read it?
I’d say that unfortunately he was nothing more than a victim of the Cummings purge of overtly Remain civil servants.
On the one hand, this is wrong because the civil service absolutely shouldn’t be at the whims of here today, gone tomorrow politicians (or their slightly strange advisors).
On the other hand, not a few in the civil service (I can’t say if this applied to Jones) did take it upon themselves to not be content to merely deliver ministerial decisions but to intercede in them, too. Too many civil servants pee’d on too many ministerial legs and tried to tell them it was raining. Consequences were inevitable.
I disagree with you. He clearly resigned and wasn’t victim of a purge.
I’m not sure why you keep trying to argue that this is some sort of normal technical legislation. Nobody, not the EU, the Irish government, the UK government, nor its advisors are pretending that this is anything but a direct breach of an international agreement.
Yes of course the Protocol was vague and occasionally contradictory. Thats the nature of Anglo-Irish agreements (or any such agreements), an element of creative ambiguity is essential to get them accepted broadly, and of course to get Boris off the hook. What is important is the core principles and objectives and those were clearly understood by all sides. And, as I said, nobody, not least the UK government, is arguing that this is not a breach of those core principles and objectives. This is a straight up bad-faith breach of international law, in both textual terms and in terms of the norms of international behaviour. Even the loony Brexiter fringe isn’t pretending this, they are just alone in thinking its a good idea.
Johnson may have had some sort of idea that he could pull off a Trumpian style bait and switch with this, but its gone very badly awry. Its pretty clear now that all trust has gone and certainly Ireland has now gone into full preparation mode for a no-deal, and the western Europeans will follow. And no doubt the the US, Canadians, Australians, and particularly the Chinese and Japanese will be paying close attention and working out its implications. I doubt their conclusions will be favourable for the UK.
See my above comment for a long-form overview of the nub of the disagreement. But the Withdrawal Agreement clearly creates obligation on both the UK and the EU to negotiate in good faith and expedite a conclusion to the future trading relationship. Specifically, Article 184:
If Barnier had truly believed Exit Declarations were compatible with “unfettered access” between NI and the UK internal market, he never explained his reasoning in public, at least not that I can find anywhere. Failure to explain your arguments and address counter-arguments is textbook bad faith negotiation.
All he has to say what I wrote below – “we expected the trade agreement with the UK, which both parties commited to, to include the mutual recognition as a safe country obviating ED”.
Which worked until it didn’t. If there is a reasonable probability of there being No Deal, the U.K. government is justified in assuming that the provisions of the Irish Protocol will kick in — with no amelioration in their impacts to U.K. internal market trade and the simultaneous requirements to address the Union’s Custom Code.
And at point the “unfettered” clause is vitalised and it then becomes beholden on the Commission to say what solutions it is proposing which comply with that.
The Withdrawal Agreement doesn’t say “the Commission can take every problem and dump it at the feet of the U.K. government and tell it it’ll just have to sort it all out itself”. It does say that both parties must, in good faith, make every effort to resolve issues — expediently.
The Irisih solution was _always_ going to be beholden to the comissions. The NI would have to, for continuing single market access, closely match any future EU development.
There’s no scenario where this could be broken and the NI solution remain.
This was true from the start, and the main reason why May never ever wanted special NI deal.
I’ll remind you it was Johnson who put the NI in, run it past the parliament post-haste, and then run the election on “look how great a deal we got”.
If you negotiate with me a bad deal, putting in a bad provision of your own will, crying over the spilled milk a year later is NOT my problem.
And yes, the EU has limited ability to do anything about it, except running a trade war on the UK.
Which, TBH, is what I believe Johnson wants, because inconveniently Covid detracted a lot of people from Brexit, resulting in Labour catching up, and way worse yet, for both Johnson and Cummings, Sunak starting to look to Tories who are famous regicides, as a more competent choice than Johnson.
So a good war, even if it’s just a trade war, is what Johnson feels is a good way to rally the troops behind him, shooting both Sunak as well as Labour at the same time. You could see it how Johnson was pining for Starmer to ask him about the “lawbreaking” on the PMQs, and how frustrated he got when Starmer ignored him on it and kept pushing Covid.
And re your last part – there’s no way anyone with half a brain would believe that a trade deal really can be done by end of this year, never mind Oct 15.
The best good will solution would be to extend the grace period. The EU could offer a concession in that it would continue negotiating a full deal, but it would come on-line partially – but if the parties did not finalise the whole deal in X years, the whole package would fall apart.
I haven’t seen a single part of the UK showing up and attempting to negotiate in a good faith so far. Explicitly stating they will break the law IS confirmation they negotiate in bad faith.
If the UK government thinks Barnier has been engaging in bad faith argumentation, then they should say so. But they haven’t.
All the potential issues with the Protocol and WA were flagged up earlier, everyone knew that there were contradictions there that had to be ironed out, in addition to some sort of quasi in-out status for NI if a satisfactory trade deal was to be made. Its the UK that has been caught up in the spiders web of its own creation. The UK created the problem, its not up to Barnier to sort it out for them.
And if the Commission thinks the U.K. government has terminally voided the Withdrawal Agreement — let alone any possibility of a Free Trade Agreement — it can say that, too. But that’s not happened, either.
In negotiations, when you get to this sort of situation, either party can escalate. Or both parties can make a token protest (I think Coveney has sent a minion to give the U.K. foreign office a good talking to, that’s seems to be about it) and agree, albeit tacitly, to de-escalate
The Withdrawal Agreement requires both the U.K. and the EU to work towards joint solutions. If neither party can come up with one which meets all the stipulations of all the clauses, then the Agreement will have to be reopened and a new negotiation started. Or, temporary solutions will need to be put in place until the Joint Committee can work out what to do. The U.K. government opted for the latter, in the absence of the Commission making policy which was able to address *all* the requirements in the Irish Protocol — and having its bluff called by the U.K. government if it was attempting to run down the clock.
They can’t say that it ‘has terminally voided’ the Agreement because its not passed yet. But they have made clear that they think its a step in that direction. Plus, of course, its the UK government that has said they want to change it, not the EU. You seem to be trying to push an argument that even the London government isn’t saying. Every legal expert says its against international law. The Minister responsible says it is. Everyone says it.
This is not the case. The Withdrawal Agreement is an agreement with no end date. It stands until it is mutually replaced, even if there is no deal.
Von der Leyen can huff and puff as much as she likes. But if the Commission genuinely thinks the U.K. government won’t be implementing the Irish Protocol as the Withdrawal Agreement requires (and has itself fulfilled all its legal obligations in that regard) then it has only three options.
1) it can accept the U.K. government’s interpretation (albeit under protest, if it wants to protest)
2) it can reject the U.K. government’s interpretation and say that unless the U.K. introduces Export Declarations (an interpretation which appears nowhere in the Protocol itself) it will consider the Withdrawal Agreement has been nullified by the U.K. government’s repudiation of one if its clauses. Optionally, it can pursue the U.K. government at the International Court of Justice (or the court of public opinion, if it prefers)
3) it can agree there are deficiencies in the drafting of the Withdrawal Agreement and renegotiate it because it contains mutually-incompatible (or unmeetable) stipulations
If the Commission does nothing (or just produces a load of hot air), it amounts to the same as what’s in Box 1.
But Barnier is trying to sort it out. I don’t believe he sees this as a win-lose deal, that helps no one. This in all appearance is never ending, the game is just getting started. Clive, Vlad, others always a joy to read your thinking.
I do tend to agree, up to a point. Barnier’s hands are tied with the mandate he has been given. Sometimes he seems just as frustrated with that nincompoop von der Leyen and the can-kicking / ostrich behaviour — I’m actually going to call it disinterest — in the EU27 leaders (some of them, anyway).
But then he does sometimes try to play his game, just because that’s what he sees as part-and-parcel of his role. If he does genuinely want a win-win, he doesn’t appreciate at all that, on the Leave side in the UK, we’ve seen this sort of thing for 40 years or more and just want out of it. It doesn’t serve the UK’s interests and it doesn’t, in my view, serve the EU’s future interests either. The EU — certainly the Commission, anyway — should, if it wants my advice, get a new strategy and drop this kind of legalistic shenanigan. There’s nothing more embarrassing than a grifter who, having had his grift discovered, persists in trying to think that he can still use the same old ruses, no-one will notice. Take it from me, as I know myself, when they’ve found you out for a charlatan, it’s time to come up with a more sophisticated scam. Say what you like about Donald Trump, but one thing he’s undoubtedly done is call out some really old, well past their sell-by date, geopolitical hucksterisms. The EU’s “rules based international order” hoodwinking being, if I recall correctly, just about the first he shot down.
But that’s just my musings, the EU27 can manage their own affairs and don’t need any help from me.
There’s a limitless cacophony of Remain voices who he can listen to and perhaps convince himself that they’ll sway the Johnson administration if he (Barnier) is skilful enough to marshal Remain sentiment into some form of influence. But that ship has sailed and it isn’t coming back.
I think we can agree that there was a way forward for the UK in proposing an interpretation of Art 6 that would have been controversial, and in the view of many people perverse, but was at least within the accepted rules for interpretation of texts. Provided the UK had stayed within the accepted boundaries of the discussion, then it’s possible that Barnier could have got the agreement of major players to bend the interpretation of the rules a bit. But the UK didn’t do that: it announced that it didn’t like what was in the Protocol and was intending to violate its provisions. Politically, that makes it impossible for Barnier to negotiate, and I rather suspect that there’s some kind of legal impediment as well, or at least states might try to stop Barnier reopening an text which had been agreed by states just because one signatory didn’t like it. Remember that we’re dealing with a highly legalistic tradition of administrative law here: nothing like what happens in the UK.
And this is a different issue from the “rules based order”, which everybody recognises as a polite fiction; It’s not about rules (except keeping your word) but about knowingly and publicly violating a legally-binding agreement. You can say it’s ambiguous, you can say it’s unfair or unreasonable, you can say whatever you like, but you can’t say you didn’t sign it.
I’m completely convinced that Barnier’s hands are tied in a way that the UK government’s aren’t with regards to not being able to do wheeler-dealing and bounce ideas around. I’m also convinced, too, that the UK government is either intentionally being — or even unintentionally being, depressingly enough — clueless that Barnier can be approached in the off-the-cuff discursive negotiating style they make out like he can do.
But on this narrow point (and it is not, though, a trivial point, it is pivotal to Northern Ireland’s commerce) it’s not like the UK government was guilty of its usual wobbly blancmange in lieu of properly-considered policy detail. The Command document (or as it was rather pretentiously formally titled, the “The UK’s approach to the Northern Ireland Protocol”) was published on 27th May. It was copiously evidenced, logical in its methodology and clear in the resultant policy conclusions. Bariner had three months or more to do plenty of nemawashi round the Commission and the Heads of Government / Heads of State. There were at least three Council meetings in this period.
Ample opportunity, then, for Barnier to not only reject the UK’s interpretation (which he was perfectly at liberty to do) but then to advance reasons why it wasn’t acceptable, why it couldn’t even be used as an interim measure with a waiver for 6 or 12 months while the Joint Committee made policy on the subject, why he wasn’t going to offer a solution which would satisfy the Commission other than Exit Declarations or, if he was going to hold out solely for Exit Declarations how these were, in fact, able to meet the criteria to not “fetter” East/West trade.
Now, it could be that the Commission wasn’t just trying to play for time and bounce the UK into accepting its only interpretation of the Irish Protocol and it was, rather, that Barnier was trying his best to resolve the seemingly irreconcilable demands of the Protocol but ended up merely spinning his bureaucratic wheels in the Berlaymont. But that, even if it is true just shows how impossible the EU is to deal with and how inadequate the arrangement — an arrangement it chose to foist on the UK where the Heads of Government / State couldn’t be bothered to thrash the UK’s exit from the EU out in the Council session but rather delegated it to the Commission who delegated it to Barnier via his mandate — was for resolving the issues which were inevitably going to crop up.
My own view is that it was probably a combination of both — playing for time by the Commisison as gamesmanship but then, when it all got whacked by Johnson with his decision to “break international law” (sic) then the Commission couldn’t react fast enough to head that off. I eat lame bureaucracies like the Commission for breakfast and this is all-too-often the kind of too-clever-by-half bind they can get themselves into. But we’ll have to wait I think for the facts of the matter to emerge, rather than my speculation.
On the BBC 6 o’clock news, European correspondent Katya Adler just filed a report saying, to cut to the chase, that while the EU was “very concerned” etc. etc. etc. there was also an element of “let’s not be hasty in all this” https://twitter.com/BBCkatyaadler/status/1303670549118410752 which lends credence that it might have been an EU bluff and Johnson called it. And I’m going to turn deaf ears to any suggesting that oh, Johnson, the cad, the braggard, the (insert ritual denunciations here), how could he be so dastardly, the poor EU, innocent and virtuous little child that it is, to be treated in such a fashion (and so on) — and how terrible it all is and who could have predicted yada yada yada.
Like they didn’t know exactly what they were dealing with here. It is ironic that both the Commission and the UK government are parting ways. They both deserve each other as I see it. We, the people, though, deserve neither of them.
I think Barnier (the EU) is bring ver careful in order to avoid the blame for a breakdown in negotiations. And Johnson (Cummings) is doing his best to provoke Barnier in order to get him to walk out. (A self defeating, and completely pointless exercise for the rest of the British population). For Blackadder (very highly regarded UK comedy series from back in the day) fans, Johnson (Cummings) has reached the “I have a cunning plan stage. (In the comedy this is where a complete inane plan would be suggested).
The idea of Johnson as Baldrick has a certain ring to it……
I’m glad that Marina Hyde and John Crace of the Guardian got a shout-out in the main post. They are both required reading, and a heck of a hoot too.
For myself, I’ve bought put options on FXB Oct 16th expiry since this kerfuffle has the potential to go really bad.
Very interesting, in the apocryphal Chinese curse sense.
I was surprised not to see any mention in the UK press of the impact on UK-US FTA in light of Nancy Pelosi’s blunt warning that any attempt to water-down the GFA would lead to an immediate and bipartisan rejection of any FTA in Congress. Now bumbling incompetence is a Boris Johnson trademark, but he is also desperately angling for a FTA before the November elections.
If I were a member of the Irish-American caucuses, in light of yesterday’s stunt, I would put any FTA on freeze until the NI WA provisions were actually implemented, and to the RoI’s satisfaction.
Its been almost unanimously ignored in the UK press, but its not gone unnoticed elsewhere that there is absolutely zero chance of any UK-US trade deal getting past Congress without a nod from the Irish government. The Irish-American lobby may be just a thin shadow of its former self, but it can still call on enough support to block anything they don’t like. What its lost in Democrat Irish-Americans, its gained recently in Republican Irish-Americans. Pelosi was quite explicit on this point when she made her visit to Britain and Ireland last year. This makes all the posturing by London pointless and comical. They’ve been checkmated for years now, but still refuse to face up to this reality by inventing non-existing carrots and sticks that they think they can use in negotiations. Going by her recent comments, even Theresa May seems to understand this now.
The cousins appear to be carrying on all of their recent legal proceedings with a certain consistency. Witness (cough) the courtroom of Magistrate Vanessa Baraitser whose eagerness to brutalize and ultimately railroad Julian Assange is on display daily. My revisionist understanding of English law is that it is merely de jure to not extradite a person accused of a political crime whereas the political elite de facto can do whatever suits them.
I believe at least Norway and Swiss have agreements in place that mean goods moving between them and the EU do not require Export Declaration.
So, given the WA’s assumption there would be a deal, it’s easy to assume a similar provision would be in any “comprehensive deal” with the UK.
Richard North has gone on about how Norway and Sweden do have a hard border. He’s shown pix of the customs posts. Admittedly both sides try to be as nice about it as possible….Norway may still get away with the arrangement you suggest by being an EEA member. The EU won’t cut the UK the slack it does for little EEA members, particularly since the UK has made clear it wasn’t a nice partner even before Brexit.
And the EU has repeatedly said the UK cannot look to Switzerland as a precedent.
Export Declaration is a safety issue (“EU legislation requires, as a general principle, that all goods brought out of the customs territory of the Union, regardless of their final destination, shall be risk assessed and subject to customs control before departure “), so it doesn’t preclude hard border otherwise – the documents (customs or others) aren’t processed on the borders.
You’re right that the EU would not do a seprate agreement just for this. But there’s no reason why it could not have been part of a comprehensive deal, except there’s unlikely to be a comprehensive deal.
My point was that if the EU assumed a comprehensive deal covering the goods security arrangements (and it was implied in the WA tha was the goal), then by implicatin the NI-into-GB problem would never show up.
What constitutes a hard border? I take the E6, which is the main artery from mainland Europe to Oslo, several times per year into Norway and I can only recall being stopped once. Last time I took the ferry across they checked my Swedish driver’s license and waved me in.
Were you driving a lorry?
No, and my question wasn’t intended to be snarky! I remember reading something, I think on North’s site, that lorries are only supposed to use designated crossings but I haven’t noticed any signs about that at smaller crossings.
Switzerland & Norway certainly do require Export Declarations. This has got confused because what they are talking about are Exit Summary Declarations which for most countries on export the safety & security data is included in the Export declaration. The problem is now that if a CHIEF entry isn’t required the EXS still is and needs to be done seperately.
Ok, so in the aboves the Export Declaration should be replaced by EXS, right? That is, the NI -> GB would require EXS, not ED, but EXS can be removed by a similar treaty that Norway/Swiss have?
Yep that’s correct, an export entry to any special territory or EEA country has a different code in the declaration type which then doesn’t require that safety and security data.
There may or may not be a breach of international law – my understanding is that the breach is currently contingent on some power being exercised in future (the example of a precedent given at one point was the Finance Act 2012 which provided for the disapplication of tax treatment otherwise available under double taxation treaties should HMRC deem a particular tax scheme to be abusive). The international lawyers will have to wait a bit to get their fees if that is the case.
What is clearer is that a breach of the Ministerial Code, if arguable, does not seem to be a crime or even a tort. If Jolyon Lost Cause Maugham wishes to allege misconduct or misfeasance in public office, he can go ahead, but he’s lost three for three of his last Brexit pleadings so he should stick to bludgeoning foxes to death where at least he has form (and a fetching dressing gown). I don’t think individuals have a responsibility to uphold treaties, that’s an ecumenical, sorry, intergovernmental matter, Ted.
After reading the news about this development, I began to wonder if this was Boris Johnson planting a poison pill in the EU negotiations so that it would be so unacceptable and that the only recourse for the UK would be to bust out of the EU without a treaty in place. If so, it has been a spectacular own goal as it has not only poisoned his government but apparently relations with the US as well, not that old Boris will ever have a price to pay for what he does. And like chuck roast, I too noted this unique stance on what the law means in the UK whether it is with the EU negotiations or with Julian Assange’s trial. In an idle moment I began to wonder if Attorney general Suella Braverman and Judge Vanessa Baraitser read law together when they were younger. This will not end well.
Creative ambiguity is often the rule in such texts, but for it to work, all sides have to have interpretations which are at least compatible with each other, if not identical. The exception is where there’s no expectation that the provision will ever be put into effect, and so the text can mean different things to different people. That’s obviously not the case here, since it was obvious at the time that this was going to be an issue in the transitional phase. I can only assume that Johnson and co signed up to this language in that most fateful of political moods: “we’ll worry about that later, and something or other can be sorted out.”
An intelligent British government (no, scrub that, a government with two neurones to rub together) would have tried to use the ambiguity of the text as a support, or at least as a bargaining counter. The words pretty much write themselves: “the legislation the government proposes to introduce is, in the UK’s view, consistent with the spirit and letter of Art 6, though we recognise that some partners may feel differently and we are happy to clarify our position as needed.” There, solved it for you. But. They. Didn’t. Do. That. They gratuitously and wantonly picked a fight, and declared themselves guilty in advance. Amateurism doesn’t cover it. You need a complete new vocabulary.
Now to be fair, the government hasn’t actually “broken” international law yet, except insofar as its statements could be said to contravene the Vienna Convention on Treaties. But I think actually passing an Act of Parliament would do that (any international lawyers in the house?) and certainly implementing it would. So Parliament would be associating itself with a very deliberate and avowed breach of international law for the first time in its history. More to the point though, any conceivable AG in the past would have resigned by this point (the Treasury Solicitor isn’t so much involved in this kind of thing) and I can’t understand why the FCO Legal Adviser, whoever that now is, hasn’t reigned as well.
Yes, there’s a massive differenc between “we believe we’re acting within the law” – even if they clearly are not, and “we know we’re going to break the law, a bit, in a very specific way”.
The first, everyone does. Yes, it’s a hypocrisy, but that’s the social glue that allows people to negotiate compromises without anyone being corners.
The second one is nailing your flag.
What are the chances the UK are basically going to dare ROI to establish a hard border?
I believe the Good Friday agreements got the hard border removed. No one wants a return to the troubles which preceded the Good Friday agreement.
Please correct me if my recollection is wrong.
What are the chances the UK are basically going to dare ROI to establish a hard border?
Or, more explicitly, put the EU in a position where that organization will try to force ROI to build and enforce a hard border, on top of the fact that ROI will already be the EU member state suffering the most economically from Brexit?
It’s a very good bet the UK is prepared to do that.
Why wouldn’t it want to threaten to do as much as damage as it can in return if the EU is intransigent in its demands for the UK — although out of the EU — to continue to subscribe to the EU’s neoliberal no state aid, no industrial policy rule?
Because, sure, the Johnson government is awful. But the whole point of being out of the EU is to be out of the no state aid rule — the ‘fairness’ doctrine as the EU calls it in its Orwellian double-speak. The EU really is the quintessential neoliberal organization existing in the world today, as you’d expect given the influence the Mont Pelerin crowd had in its formation.
‘But the whole point of being out of the EU is to be out of the no state aid rule ‘.
A UK resident, I do not recall one single principal Leave supporter arguing that this was the point of Brexit in 2016.
By the way, the EU does not forbid state aid, but imposes restrictions (largely drafted by the UK, as it happens).
For most, the arguments were ‘sovereignty’ and the ability to end freedom of movement (where the principal concern was Eastern Europeans coming to England). Sceptics think that for many the ‘sovereignty’ argument was really cover for the second concern (xenophobia when people are being blunt).
Indeed.
Tories were always against the state aid, the EU provisions on state aid as you say were often work of the UK with a help of Dutch, the EU approved 95% of the last year’s state aid requests, number of EU countries have well functioning state owned rail and utilities (hell, Czech Budweiser is state owned!)
Massive corona-related state aid packages were waved through this year, and there’s nil evidence that the UK would not be able to do so if it just wanted.
As an international consultant and lawyer on international law, per se, like any good lawyer I’m not so much interested in who is guilty but who has the better story. Those who say, and even love to say, “but it’s the law”, “it’s a treaty”, and “a violation”, etc., are missing the point as far as lawyers, the law, and judges go. I’m not using irony, not being sarcastic, only explaining the job. Clive as I understand it has employment in the FIRE section of the economy and I’d guess there are the rules and then there are the “rules”. Even rules about rules. I enjoying his writing and general take on things. As to Dr. North, it is instructive that he is always the first one to point the violation of some rule, generally very obscure, of what absolutely, positively can’t be done. Yet, ‘it’ is always done. How? They change the rules. Almost always they change the rules. New rules, old rules uncovered, and no rules that apply. It’s got the makings of a good country song. Lot’s of things people ain’t supposed to do, but do and here we are.
Most of the time, in my experience the goal is to avoid getting legal and rather, solving the problem at hand. Boris & Dominic are up to something and this fits in — how? Subject for another day. I don’t think the German high court ruling on the EU has fully been absorbed by policy makers and their advisors. Things aren’t as ‘legal’ as they used to be. Further, the EU may be done with the Swiss, but the Swiss aren’t done with the EU, and either way there is the problem of precedents. If the ‘main’ issue is safety than I wouldn’t flog the UK about following rules, nobody likes to be nagged. And as far as the UK and Japan, China, & the US goes the first rule is what is in it for me not are the UK playing by the rules. In 40 years I’ve yet to hear that from those calling the shots. Brexit was destiny it turned out, but a strange one. This problem will get ‘solved’ like all things Brexit – strangely. And thus we live in the time of high political theater. As Buddha would say “it’s all good”.
William,
I think there is a lot of truth in what you are saying. I wouldn’t underestimate the EUs and UKs ability to “kick the can down the road”.
My daughter joked that she could see the two living in some kind of nether land for a 100 years, and then suddenly deciding the UK should formally rejoin the UK. By then the old Brexiters will all be dead, and no one will remember what all the fuss was about.
When the Brits say “Hold my beer and watch this!” at least it’s decent beer.
In the USA it’s usually Bud lime.
Why does any American Congressperson care about this? I don’t understand how it could be a significant domestic political issue or how they can use it to line their own pockets.
Who are we – America to tell anyone what to do? As the Irish were in fact hated for many years, I’d be surprised that everyone now in America would see that as a burning issue. At least the Irish – both sides have healthcare. Maybe they could help us. Dominic has wondered aloud about the breakup of the UK for several years now. I wouldn’t be surprised if this was part of some grand plan.
Optics, preparing to capitulate to the EU because the fat cokehead in Downing Street can’t be bothered to do anything that is remotely like work. I mean, Brexit is neither here nor there. If you were stupid beforehand you’ll be stupid afterwards, and if you were poor beforehand you’ll be poor afterwards, and if you lost your job to a foreigner then you’ll still have lost you’re job to a foreigner. Nowt much will change in that respect. So I would have expected that government would have got it’s act together and done the hard work to make the new reality work. Instead, they chose to go and do a few more lines in the bogs and have a few self-important meetings and win the 48 hour news cycle.
All this breaking international law will never come to pass. Johnson is reversing the result by hiding it’s capitulation behind such nonsense manoeuvres designed to win the 48 hour news cycle (incidentally the new covid rules came out in this news cycle). He’s going to sign the capitulation papers and declare a victory. All this talk of Northern Ireland and withdrawal agreements (this is one withdrawal agreement that Fat Boy Alexander will stick to) is pointless.
Those that voted for Brexit are far too stupid to understand that a capitulation is taking place and one that is designed to minimise the distance from the EU and then the British state will reverse the result bit-by-bit through never-ending negotiations.
The EU for it’s part is too useless to walk away like any other power would have when the first inkling came. It’s proving useless against Turkey in the Eastern Med as well – I’m quite sure even the current incumbent in Downing Street could have helped the EU reign in the worst instincts of the cokehead Napoleon with the Oedipus complex and brought Greece and Turkey to the negotiation table instead of letting a government be threatened with Nuclear weapons when said government (Turkey) is already questioning why only a few countries are allowed to possess nukes.
Congratulations EU, you’re about to get an aggressive and unfriendly nuclear power neighbouring your south eastern borders and there’s nothing you can offer them to make them less unfriendly.
The always interesting Mark Elliot has a useful analysis on his blog:
https://publiclawforeveryone.com/2020/09/09/the-internal-market-bill-a-perfect-constitutional-storm/
I think he’s the first to have spotted that Clause 45 says that regulations made under the act are valid not only if the contravene the WA but also if they contravene existing UK law. So in other words the judges can **** off. Revenge for the prorogation defeat last year?
Finally for today— and I’ll dump it down here where no one reads anyway — because it is hoisted from the Daily Telegraph comments section (so hardly what you’d call the gospel truth necessarily) I’ll leave everyone with this little doozie:
so i suppose the eu could also over ride the WA too?
As if it needed more life than Lewis’s statement gave it all by itself.
Does not the Vienna Convention on Treaties trump everything ? ie. International treaties take precedence?
I would have thought so – see my comments above.
Goodnight Clive – I’m off to bed as well. But I’d just ask why, if the second paragraph is true, the government didn’t use that argument. All it needed to say was “our reading of the WA means that we have the power to overwrite its provisions with primary legislation.” That would be a much easier argument to defend, and there would be no need for bellicose rhetoric about “breaking international law.” Maybe someone can explain why a purely UK piece of legislation, to which Cash contributed his famous section 38 is supposed to override, or at least help override, an international agreement.
If the legal reasoning is true (and, indeed, both the Withdrawal Agreement (EU instrument under the TFEU) and the EU Withdrawal Agreement Bill (U.K. primary legislation) are drafted the with effect they are claimed to have — big “ifs” which is why I’m skeptical until I see big proofs) then they do indeed give the U.K. government, to use a computer system term, root access (or admin rights) over the Withdrawal Agreement.
But as anyone who has ever had such privileges over a complex installation knows, you might have the ability to make any and every change you see fit in theory, but if you’re not very careful and circumspect, you can wipe out the entire system. Push too far and the EU will renege citing unforeseen events.
Or, if it doesn’t do that it could pursue remedies for either mutual or unilateral mistake (i.e. either the U.K. or the EU or both never intended the Agreement to end up with the effects it did — or may have done!) — either rescission or rectification. Both options are fraught. It would be impossible to even start to think about a Free Trade Agreement until the Withdrawal Agreement has been remedied.
So the U.K. government, thick as two short planks as it is, would know it couldn’t overplay its hand. It can tweak the difficult to accept bits of the Irish Protocol only (the Exit Declarations and maybe waterproof the EU state-aid rules back door via NI risk), be seen to be taking its lumps for “breaking international law” (sic — sick as a parrot) but otherwise not take the EU’s fingernails out by making brazenly advantageous demands (lest the EU think the least-worst option is to itself throw the whole thing in a skip).
Hopefully real experts in the international law field will be all over this in the next few days and we’ll see for sure.
It isn’t. It’s shockingly insane.
All countries can, by virtue of being soverign, always pass ‘primary’ legislation to do whatever they want. Which ultimately doesn’t matter, as the EU 27 are also soverign – There is no legal wheeze that keeps them from doing what the Irish want. In international relations might makes right, not law.
And any nonsense about legal niceties wont magically stop the EU from retalitating.
Suella Braverman has the technical qualifications she needs as Attorney General: a law degree from Cambridge (arguably, the UK’s top program), two years at the Sorbonne, studying French and EU law, years of practice before entering Parliament.
But like Kris Kobach in Kansas – another academically gifted but empty-headed politician – she is short on practical experience and street smarts. Braverman is a placeholder, putty in others’ hands. Which makes her eminently unqualified to stand up for what she knows is correct. Just the type Dominic Cummings likes in his ministers, especially the ones whose jobs give them the power to say, No.
One question I have is how long the UK is willing to go without having a bilateral trade deal both with the US and the EU. Does/Can the UK hold out for let’s say four years until you could conceivably have full Republican controlled government in Washington? Or does the UK start playing hardball not with the EU but with the US in order to force Pelosi into a more pro UK position? The UK could for example expel the free reign US military and intelligence personnel have in the UK or even withdraw from NATO itself. While all this seems rather unlikely I would argue in a historic sense Pelosi is becoming one of the most anti British US leaders in well over a century something I would have not predicted a few years back.
**The raw economics of having WTO only status with both the US and EU are not the end of the world but it would be a huge hit to the prestige of the UK and as anyone who has followed UK politics for the last 50 years prestige is a very big thing for London.
A bit late to this thread, but do people think a reunification of Northern Ireland and the South of Ireland, could allow a back door for Ireland to have a currency other than the Euro?
If a border poll passes, and Northern Ireland refuses to change its currency (lets assume for simplicity it had its own independent currency, not Sterling) – and since this is not the same as a new member state joining the EU – then what would be the legalities of this? Would it not be unconstitutional to refuse reunification, just because NI refuses to adapt the Euro?
I wonder if Euro countries merging with non-Euro nations, may be a way out of the Euro while staying in the EU. Ireland is a unique situation though, even above that, due to the Good Friday Agreement.
doubtful that any EU country would want merge with a non EU country (or even an EU country….just because of history…)
but were it to happen doubtful that they would get to stay in the EU. course i suppose it depends on how the merger works. if the EU country is the new country then maybe. if not, not going to happen.
sort of like Germany and Russia deciding to merge, if the new country is Russia, then no, if its Germany, then maybe
Kris Kobach was bright enough to author a conspiracy between himself and other GOP Secretaries of State (who, in the US, are responsible for elections) to fix the 2016 presidential election by illegally not counting or not allowing to vote at all millions of legal votes and voters. And he got away with it. And the Democrats blamed Russia, Putin and Julian Assange. The only person in the US holding him to account is Greg Palast, to whose volume How Trump Stole 2020 I commend to your attention. And the Democrats are blaming Russia and Putin again, in advance, while Palast is ignored, as he was in 2016.
What is ironic is we are right back where we started regards the negotiations but everyone is pissed off. Johnson has taken the UK backwards…
What an idiot.