“A customs territory generally involves the removal of all internal tariffs, and a common approach to external trade partners. Regulatory regimes can vary within a customs territory but the removal of internal tariffs and associated barriers is generally considered to be fundamental to the nature of a customs territory. This fundamental reality is central to the way the Protocol needs to be implemented, given its clarity that Great Britain and Northern Ireland form one customs territory.”
Rump UK and the inner-British border
June 22nd, 2021. The tensions between the European Union and the United Kingdom over the Northern Ireland Protocol to the EU-UK Trade and Co-operation Agreement are not a legal dispute but a power struggle and should be seen as such. Failure to come to a working solution that would remove the inner-British border and further weaken ties within the United Kingdom of Great Britain and Northern Ireland could lead to far more than a trade war between the EU and UK. The future of both the EU and the UK are at stake.
It is 2030. Ireland is unified following the 2029 Border Poll, albeit facing serious disruption from a large and angry Unionist minority. In 2028, Scotland also left what was left of the United Kingdom following a 2025 referendum which Whitehall botched, and is now mired in an economic and financial crisis as Edinburgh’s public finances collapse and is desperately pleading with Brussels to allow accelerated membership of the EU. England and Wales are still together but angry, isolated and divided. Much of the blame for the destruction of Britain is aimed at an incompetent London that for far too long had too often spent too much time obsessed with the irrelevant, whilst too often failing to grip the fundamentals of power and change and how to manage them. Few Britons properly understood the full implications of B Brexit until it impacted them and their families. However, blame is also aimed at Brussels for creating the conditions that led to the collapse of fragile post-Brexit Britain. Fantasy? Paranoia? There are those in the European Commission who would be only too happy to see such an outcome. They fear that if Britain that makes a success of diverging from EU rules and regulations others will be tempted to take the same route and they will go to great lengths to prevent such secession.
Leaked figures from the British Government tell a stark story about the EU’s implementation of the Protocol. The EU is now imposing more than 500 checks each day on the transfer of goods between the mainland and Northern Island across the Irish Sea. Up to May 23rd, there were 41,807 documentary checks at the now imposed inner-British ‘border’, of which 36,702 were documentary checks whilst 2,831 physical inspections of goods also took place. As of June 81,000 checks in 123 days have taken place averaging 650 each day. As a result, trading patterns have been transformed. British exports to Ireland are down 39 percent in 2021 whilst exports to Northern Ireland from the Republic have increased by 40 percent compared with the equivalent period in 2020, and are 54 percent above 2018 levels. Trade from Northern Ireland to the Republic is also 61 percent above 2020 levels and 111 percent above 2018 levels.
In other words, the EU is carrying out more checks at the inner-British border than along the entirety of the rest of the EU’s external border for fear that goods crossing the Irish Sea might enter the Union and damage the integrity of the Single Market. The EU is thus demanding a far higher test for the ‘integrity’ of the Single Market along the inner-British border than anywhere else around the EU’s external border. President Macron let slip the EU’s political ambitions implicit in such figures when he suggested last week that Northern Ireland was not really part of the UK. What is also clear is that London has profoundly miscalculated the attitude the EU would adopt in the wake of Brexit. The Northern Ireland Protocol was only ever going to work if both parties to the agreement interpreted it in much the same way as the 1998 Good Friday Agreement which brought peace to the north of Ireland – creatively and in a spirit of constructive co-operation. The European Commission has no such intention and seems intent on taking the hardest of hard lines over how it interprets the Protocol. It is strategic coercion dressed up as EU legalism. The lack of an effective mechanism for the settling of disputes is now all too apparent. .
A Struggle to the death?
Why? There are no more dangerous adversaries than two fragile powers because relatively small matters can threaten their very survival and rapidly lead to a zero sum game. Unfortunately, the United Kingdom is not the only fragile polis coping with the consequences of Brexit. As Europe begins to move out of the pandemic the economic and political damage done by COVID-19 will become apparent along with the coming struggle between the European Commission and several Member-States over the next phase of European integration. After all, it was Jean Monnet who suggested Euro-federalists should never waste a good crisis.
That is the context for the just launched Conference on the Future of Europe. It is really a metaphor for how the EU might spend far more of other people’s money. Or, to put it more directly, the future Europe will have four interlocking elements none of which will prove politically comfortable: the transfer of far more of Germany’s budget surplus and the relative ‘wealth’ of the northern and western European taxpayer to the east and south of Europe without upsetting the German taxpayer too much; mutualisation of much of the incurred debt of most EU member-states so that all EU taxpayer’s become responsible; increased borrowing powers for the European Commission thereby giving it the powers (and appearance) of a state; and alignment of the fiscal policies of EU member-states to enable the Commission to better impose discipline on the spending plans of said EU member-states.
All of the above takes place when both the EU and Britain are engaged in a series of power struggles both within and without that will ultimately decide the future of both. However, post-Brexit Britain is not the only country with which the Commission is engaged in a power struggle. On June 8th, the European Commission launched legal proceedings against Germany over a decision by the latter’s highest court, the Constitutional Court that the Commission considers to “…fundamental violations of EU law”. The German court’s ‘crime’ was to reject the decision by the EU Court of Justice that the October 2020 issuing by the Commission of €17 billion so-called European social bonds were legal. In a direct challenge to the authority of the ECJ the German court stated that the Luxembourg court had acted “ultra vires,” and gone its competence. Brussels fears that the German decision might encourage Poland and Hungary, both of which are battling Brussels over the relationship between EU and national law. The Commission is pursuing the case even though the issue at hand, the issuing of Eurobonds which began week ago, has been settled. The Commission claims that the German judgement “…constitutes a serious precedent both for the future practice of the German constitutional court itself and for the supreme and constitutional courts and tribunals of other member states”. In other words, and as Commission spokesman Christian Wigand stated, “This could threaten the integrity of [EU] law and could open the way to a ‘Europe a la carte’”. In short, a power struggle. In fact, if any precedent is being set it is the issuing of bonds by the European Commission which will ultimately have to be guaranteed by the European (i.e. German) taxpayer.
It is against the backdrop of the geopolitics of Europe that the struggle over the inner-Irish border is taking place and why the Commission’s fears Brexit could pose an existential threat to its vision of ‘Europe’. Ideally, the Commission and its backers would like to use the Northern Ireland Protocol to force the whole of the UK into compliance with EU rules and regulations. However, so-called ‘dynamic alignment’ would mean the British accepting EU rules without any influence over them. No self-respecting sovereign state, let alone a major power, could accept such an imposition.
There is no alternative?
The European Commission backed by President Macron also claim there is no alternative to the Protocol? Really? If one goes back to December 2017 and the so-called ‘joint report’ between the EU and the UK the principle of consent was established. The Commission seems to have conveniently forgotten this by effectively invalidating the democratic legitimacy upon which the Protocol is meant to be based. Article 18 of the Protocol is designed to ensure the Protocol is aligned with the Good Friday Agreement. In 2024, the Northern Ireland Assembly will vote on whether to maintain the trade elements in the Protocol and thus keep the inner-British border. The Commission seems to be gambling that rejection of the Protocol would lead to such trade friction as to render Article 18 of the Protocol little more than a fig-leaf of political legitimacy for London. Equally, if the Commission pushes things too far London can trigger Article 16 of the Protocol and unilaterally suspend part of it, although that will almost certainly trigger a trade war with the EU. Brussels and London came close to that last week as end of the so-called grace period for the transition approached. However, London sought a three month extension which has merely postponed the coming reckoning.
The real tension is most revealed by the relationship between the Protocol and the Good Friday Agreement which both sides claim to be intent on upholding. Central to the ‘GFA’ is the concept of full freedoms across both the inner Irish border AND the Irish Sea. It is because of his profound concerns about the impact of the Protocol on the Good Friday Agreement which led Lord Trimble to highlight the fact that there are now more inspections taking place at the inner-British border than in Rotterdam or the entirety of the EU's eastern external border. In other words, under the GFA there can be no inner-British border.
Last week at both the G7 and NATO summits a central theme emerged; the need for the democracies to stand together in the face of big world challenges from autocratic powers such as China and Russia. This past weekend’s ‘elections’ in Iran show the scale of the coming challenge. Central to any such effort will be unity of effort and purpose between the major democratic powers. Indeed, such Free World unity was implicit in the New Atlantic Charter whilst the NATO Summit Communique showed the vital need for Britain, France and Germany to lead Europeans together towards a much higher level of defence-strategic ambition. Such ambition will be vital if the Alliance’s growing deterrence crisis and the over-stretch of US forces is to be eased. However, such a vision will never be realised if Europeans retreat into yet another introspective ‘war’ over who runs Europe. Worse, a ‘war’ in which the EU in effect seeks to dismember one of Europe’s Great Powers ‘pour encourager les autres’.
At some point France, Germany and, yes, the US will have to decide how far they will permit the ideologues of the Commission to push a hard political line against Britain in the name of Euro-legalism. To be fair to the British they have made proposals that would remove the inner-British border but Brussels, Berlin and Paris (for that is the trinity that matters) have shown little interest in making the necessary compromises. That begs a question. Is it really in the interests of France, Germany and the US, let alone NATO, to see the United Kingdom humiliated and even broken up? Those are the stakes and that is clearly what some in the Commission would like to engineer. France clearly wants to push Britain into a corner, primarily because President Macron wants to crush any lingering attraction ‘Frexit’ might have for the French. France will sooner rather than later have to decide which is more important for the French interest: punishing Britain for Brexit or rebuilding the vital strategic defence relationship between Europe’s two power projection nuclear powers which currently lies in tatters. France cannot do or have both.
There were many reasons why I decided that on balance Brexit was a bad idea. First, it was bad geopolitics. In today’s world Europeans need to be looking out at the world together, not tearing each other apart from within. Second, it was bad politics. The EU is too important to Britain for London to abandon any influence over its future direction. Third, I feared that the UK had become too fragile, too divided and too poorly governed with too many competing poles of power to survive the inevitable consequences of Brexit. Indeed, even though I harbour deep and profound concerns about the future of democracy in the face of the European Commission’s power legalism I campaigned against Brexit for fear of what could now happen. Some might see the Northern Ireland Protocol as a legal technical treaty issue. It is a power struggle. However, with good will on both sides pragmatic solutions could, indeed, can still be found to ease frictions at the inner-British border, such as the broad adoption of ‘trusted trader’ agreements. In the absence of such good will, which is in precious short supply, there is every chance that the struggle over the Protocol will turn into something much more dangerous, a struggle to the death between the EU and UK. Let’s avoid that please.