14th February 2023
The negotiations for the final shape of Brexit continue, even though the United Kingdom departed the European Union three years ago.
Of course: it would have been more sensible to have concluded these negotiations before the United Kingdom departed (as some of us pointed out at the time), but both the United Kingdom and the European Union wanted to press on and get the formal departure over with as soon as possible.
But the price of that speed has been a lack of finality.
The current news reports indicate that a deal may be on the offing about the dispute over the Northern Irish Protocol.
You may recall that this dispute was once so urgent that the United Kingdom government, with a straight face if not a straight bat, maintained last year that its envisaged domestic legislation that would enable the United Kingdom to breach the protocol even met the test of “necessity” under international law.
That was balderdash, as anyone sensible at the time knew – and it is no surprise that the enabling legislation has been frozen.
The one sticking point appears to be something that is both fundamental and trivial: the role of the European Court of Justice.
Fundamental because, to the extent that the laws of the European Union apply in respect of Northern Ireland being inside the single market, the European Union understandably want those laws to be interpreted in accordance with the European Union treaties and consistently across the single market.
And the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice, for that is what that court does.
But for Brexiters this smacks of the European Court of Justice having jurisdiction in Northern Ireland, which it should not have, because of Brexit.
And it is also trivial, because few other than obsessives care and in practice it would not make much difference.
Given all this, there will be some fancy choreography and packaging.
What will probably happen is that the substance of European Union laws being applied in accordance with the European Court of Justice’s jurisprudence will be maintained, but it will somehow look as if this is not the case.
The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.
And this predicament of the Irish border – although obvious – was not thought through by those who clamoured for Brexit.
Other problems may be addressed – if not resolved – by the establishment of “lanes” and the use of technical “real time” data.
However, getting the two sides to a sort-of-agreement is one thing, getting the endorsement of the United Kingdom parliament is another.
And unless the deal can be framed as a great British victory (and Brexiters swallow this) then either the deal will not pass parliament or the passage of the deal relies on opposition support and thereby breaks (further) the governing party.
No wonder the Prime Minister’s circle are making noises about quitting the European Convention on Human Rights and persisting with its daft legislation on repealing retained European Union law.
The Prime Minister needs all the distractions he can muster, as getting this deal past his own backbenchers is not going to be easy.
And we may even end up – as with 2017 and 2019 – with the run-up to a general election being dominated by parliamentary splits and rebellions over the question of Brexit.
Brace brace.
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“the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice” … also the ECJ has recognised the EFTA Court as being able to do this. Likewise a modified EFTA Court with a UK judge on it might seem more acceptable than an entirely foreign Court.
Brexiteers say they don’t like the EFTA Court either, but really what they don’t like is the EEA Agreement, because the EFTA Court is constrained to follow that. If the agreement becomes acceptable, then the dispute resolution may follow.
Forgive my punditry but yours is a very appropriate post for Valentine’s day
https://www.cocopotamus.com/pages/History-of-Fudge.html
I agree with most everything you say, save one (not insignificant) assertion, namely that the ‘noises’ about 1) quitting the Convention and 2) the (truly daft) bill on repealing retained EU law (BEUL) come from ‘the PM’s circle’ and are ‘distractions’ that he has somehow ‘mustered’.
It’s very true that getting ‘this deal past his own backbenchers is not going to be easy’, but the fact that the PM has lost control of the political agenda to the extent of countenancing discussion of the reintroduction of the death penalty (which would be enabled by leaving the ECHR, and is supported not only by ‘30p Lee’, his new Deputy Party Chair, but by his Deputy PM, as well as by Ms Patel), and envisaging the planting of a mass minefield of delayed action bomblets through the BEUL legislation, suggests to me that this is not some devious and carefully planned set of distractions, but rather a government that is unravelling at a rate of knots.
The outcome in respect of the NIP may not be too different (indeed I endorse your entirely plausible prognostication), but differ in my assessment of the cost to the PM of cobbling together any sort of majority in favour of the deal that is apparently being so artfully crafted by much finer minds than Frost’s.
It could break him, and leave a well-nigh irreparable legacy.
If only he were in control of his party to the extent you appear to believe!
What an unholy mess Brexit has been right from the pre-referendum debates. Roll on a rejoining with the EU in whatever form that might take.
Careful! The only thing we could do that would be more stupid than Brexit would be to commit to rejoining without regard to the terms. We shouldn’t make the same mistake again and should have definite terms before deciding whether or not to accept them.
It is the middle of February 2023.
In less than 2 years, a process will be required to seek “democratic consent” in Northern Ireland to continue the NIP, in accordance with article 18 and the UK’s unilateral declaration.
As things stand, that could happen before the next general election is called. Or even in the interim period after the present parliament is dissolved at the latest on 17 December 2024 and before the next one assembles.
It seems the “interesting times” may never end.
It is possible that the General Election may become the vehicle for that NI “democratic consent”, in much the same way that IndyRef2 may also use that General Election as a vehicle. That’s not really the correct usage of a GE, but when people keep frustrating the pathway for other vehicles then one uses what is available. There is only so long that a political reckoning can be postponed.
Meanwhile the economic reckoning of Brexit is running amoc in the real economy. UK automotive production was 1,817k vehicles in 2016 (Brexit referendum) and has shrunk down to 775k in 2022 (latest) which is a 55% reduction. And no, that is not due to Covid ! These and many other economic consequences are – for now – being masked by the termination of legal immigration, hence relatively full employment. And rampant borrowing. But unlike politics the economics just keeps happening.
None which comes close to meeting the Brexit manifesto promise, and therefore the democratic legitimacy of the current administration, of ‘taking back control of our borders’.
The ONLY land border between the UK & the EU is the one in Ireland, also (thanks to our not having joined Schengen) the only one that we didn’t already have control of, and so COULD take BACK control of.
The promise was NEVER compatible with the GFA nor CTA and was unachievable.
As the Graun says today, the real issue with this for Sunak is whether Johnson decides that this is his moment for a comeback.
As a certain distinguished blogger might say,
Brace, brace…
The NIP was never about trade – I think the penny ( or at least the cent or even to the pretence) has dropped in Brussels & Dublin. More fool the UK for signing up to a bad treaty – but then in 2019 was a rouge/remainer Parliament & Johnson was faced with Hobson’s Choice. We move on.
Even the ultra nationalist, Leo Varadar has accepted that an over zealous implementation of the NIP might have led to the impasse and democratic we currently face. Bertie Ahern wasn’t far behind.
Whilst I’ve little time for the DUP, I can (reluctantly) see the issue they raise which effectively boils down to ‘taxation without representation’. A difficult circle to square.
I’m convinced a fudge will be found to accommodate what is affectionately called the ‘democratic deficit ‘. I’m sure too that the fudge will hold for a period. The challenge will be in a few years when the UK and EU divergence will become more apparent – bad Treaties, a bit like bad contracts, don’t tend to survive.
A remainer parliament? The majority of it’s MPs voted for Brexit in the form of article 50, with the two largest parties, each led by Brexiteers, whipping their MPs to vote for Brexit.
This is just more Brexiteer revisionism to excuse their infighting over exactly what flavour of turd sandwich they want to force on the rest of us.
Au contraire – you’ve a short memory.
The Benn-Cooper-Letwin Act effectively took a no deal Brexit off the table, effectively tying the (then) minority government’s hands.
This is just history, evidence based – not contentious even if one (I) didn’t like what happened.
Subsequently, there was a general election, at which point the Article 50 clock,as long predicted, would run out – & thus the NIP /WA, cobbled in haste was also signed in haste.
At least now, both sides appear to have worked out that the implementation of the NIP was poor.And, couldn’t work in practice.
I’m looking forward to the fudge ‘n’treacle that is likely being concocted to get a new ‘temporary’ agreement over the line.
Benn – voted for Brexit in Parliament
Cooper – voted for Brexit in Parliament
Letwin – voted for Brexit in Parliament
So how does that back up your assertion that it’s all the fault of a “remainer” parliament again?
Interesting – the trick is to think like a politician and go for the longer game.
I’ve no doubt that Benn, Cooper and Letwin all to give PM May permission to invoke Article 50 – that’s fine and dandy & a matter of record.
But politicians /MPs vote tactically to get their strategic aims.
It’s on record too that Benn, Cooper and Letwin were all remainers as was roughly (ok estimated ) 65% -75% of the the 2017-2019 ‘Remainer ‘ Parliament.
Sometimes it’s important to look ‘behind’ the headlines or superficially obvious.
The NIP is about dealing with the conundrum that a) the GFA demands an open border between Ireland and the UK and b) Brexit created a hard border between an EU country and a now third country. Start with your fantasies from this reality and then try to move on. And don’t be surprised when a fudgy adjustment of the NIP turns out to be exactly what the EU proposed in the first place.
It’s encouraging to read you have little time for the DUP. Brexiters and their guru’s have generally shown to have no time at all for the residents on both side of the inter-Irish border and the existential problems their ultra-nationalistic English project might cause.
I just want to point out, if I may, that PM May’s 3rd attempt to get her brexit deal through was defeated by 58 votes. Of which 34 were Tory MPs who defied the whip. Of the 34, 28 are the so-called Tory brexit spartans. You will find this data on the Conservative Home website, alternatively you can navigate to Sir Julian Lewis MP (Con) website. Hardly a ‘remainer’ parliament. Perhaps all 34 should have been expelled from the Tory party.
“The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.”
It sees to me there’s one very obvious way the two could be compatible. Removing the last remaining outpost of English colonial rule on the island and having a united Eire.
The main source for suggestions that the EU and UK are on the verge of a deal on the Protocol seems to be opponents of agreement intent on undermining Sunak. If that is the case, there remains good reason for scepticism that a deal will be done even if both sides fervently wish to resolve the issue, as indeed seems to be the case. What is open to negotiation in any event is confined to the practical implementation of the Protocol and on that the EU has long adopted a flexible position, once EU Commissioners recovered from their shock over Johnson’s blatant opportunism in politicising the issue. But while business in Northern Ireland is basically pleased about the EU’s approach on the Protocol (which the majority of people and parties in Northern Ireland support), the issue has now been politicised by the DUP to the point that no conceivable agreement on implementation between the EU and the UK is going to meet its tests for a satisfactory outcome. The party might back down in the face of near unanimous support in GB for a deal, but that seems most unlikely, given divisions within the Conservative Party. It would suit many people if Northern Ireland would simply go away, but this isn’t going to happen any time soon. It is just about conceivable that there might be a vote for a united Ireland but that would only follow – not precede – breakdown in GB, through, say, the exit of Scotland from the union. Otherwise, there is no getting away from the principle that the UK agreed at an early stage of negotiations on exiting the EU, which was that the open border between the Northern Ireland and the Republic of Ireland would be safeguarded, whatever happened. The choices are much closer alignment with the EU or special arrangements for Northern Ireland. There aren’t any other options.
The intransigents of the DUP and ERG are incapable of compromise. The idea that the DUP are trying to defend the Good Friday Agreement is despicable in its hypocrisy as they voted against it at every turn from the very beginning (the only party I believe). I’m not sure how much Anglo / Irish history the ERG fanatics understand or ever understood; in that they never foresaw that Northern Ireland would be the Achilles heel of Brexit, which it was and is. The EU will make some compromises but I think it will be impossible for the emasculated Brexiter-by-political-expedience Sunak to get it past a Tory party now riven into three, if not four, internecine factions.
The DUP must be confronted. This had to happen to get the GFA and will need to be done again.