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Monday, October 25, 2021

As the EU concedes on border checks, optimistic Brexiteers are at last vindicated

Pro-EU commentators are baffled as to why Lord Frost gave his keynote speech on the Northern Ireland Protocol from the Portuguese capital, Lisbon. It may not have occurred to them that Portugal is our longest-standing ally (since the signing of the Treaty of Windsor in 1386), and that there was a world before the hegemonic behemoth that is the European Union.

These are the same commentators and former politicians, some now well paid advisors to big business, who cheered on Theresa May’s disastrous decision to sequence the Article 50 talks after the 2016 referendum entirely in the EU’s favour – placing negotiating the Northern Ireland Protocol and a generous deal on citizens rights and a financial settlement before trade talks. These folk also gave us the unloved, incredible and unworkable Chequers deal, which would have locked the United Kingdom into a permanent customs union and single market for goods, and into a subservient role as a client state, rule taker and milch cow for Brussels, lacking democratic accountability or the means to escape such purgatory.  

There is not the slightest hint of a mea culpa, however. The very fact that today the EU will resile from its hitherto absolutist and inflexible approach to the Protocol by agreeing to practically barrier-free access from Great Britain to Northern Ireland (‘tweaks” is the technical term), easing customs checks, standing down diktats on sausages (bizarrely described as ‘identity products’) and medicine supplies, and agreeing to proper and regular consultations via the Joint Consultative Working Group, gives the lie to the idea that the negotiated Protocol was inviolate and set in stone. Perhaps the EU has also properly comprehended the realpolitik around the Good Friday Agreement, something absent in their pronouncements since 2016. 

In fact, in September 2018, during the interminable Tory Brexit civil war, the European Research Group published proposals, based on EU precedents and examples such as the Norway-Sweden border, for so called Max Fac technical solutions to avoid a hard border in Ireland, allowing remote physical checks away from the border, the use of trusted trader schemes, data sharing and computer-based customs procedures, and an All Ireland Biosecurity Zone, which would protect the customs and regulatory integrity of the European Union’s single market while safeguarding the political and constitutional position of Northern Ireland as a constituent part of the United Kingdom. Of course, they were ignored by the May government.

I might add that the rejection of this sensible policy was the reason David Davis quit the Cabinet as Brexit Secretary in July 2018, but, as in so many ways, he has been largely vindicated. Even the born-again Eurosceptic and putative French presidential candidate Michel Barnier was honest enough to concede the merits of such an approach.

Meanwhile, we were told that we had a weak hand and the EU had all the cards and early capitulation was imperative.That hasn’t really turned out to be the case, has it?

Brussels now faces the real prospect that the Johnson Government will invoke Article 16, effectively ripping up the Northern Ireland Protocol. It has the legal bona fides to do so, as a number of legal scholars concede after perusing the treaty text. 

Even with concessions on customs and border issues, the continued supreme jurisdiction of a foreign legal entity, the European Court of Justice, over the 1.8 million British citizens in the province, which renders Northern Ireland a de facto EU colony, remains anathema and a firm red line to many Brexit supporters. It is unresolved and must surely be addressed, perhaps by the creation of a judicial body separate to the British Government and the EU, which could adjudicate between the two parties in the operation of the revised and improved Protocol.

Hard-liners in France and Germany may threaten to terminate unilaterally the UK’s trade deal – the Trade and Cooperation Agreement  – in response, but that leads down a dark road of animosity and mistrust which ends in a hard border between Ireland and Northern Ireland and withdrawal of UK defence, intelligence and security assistance, such as the UK military help given to France in policing its former colonies in Africa. 

It won’t happen.

We’re not yet at crisis point. The EU has shown that it can be flexible and imaginative, and Lord Frost clearly wants a deal. Recent history shows it’s the most likely outcome, even if it means (for once) playing hardball with our ‘friends and partners’ across the Channel.

Stewart Jackson is founder and director at UK Political Insight and was a Conservative MP and Chief of Staff to former Brexit Secretary David Davis MP 2017-18

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