Thread by @AntonSpisak

Some thoughts on the UK's new Command Paper on Northern Ireland, what it means, and where it leaves us.

(A thread)

The first section - the Govt's take on "how we got here" - is an extraordinary attempt to rewrite history.

We are told that we are in the current mess because of (1) Theresa May, (2) Parliament (Benn-Burt Act), & (3) the EU. Everybody but the man who agreed to the deal.

Then, there is a section describing how the Govt did not foresee those issues. Except that the Govt's own IA of the WA/NIP from October 2019 clearly stated the consequences of the Protocol, and Johnson kept quiet about it to win GE 2019.

https://twitter.com/AntonSpisak/status/1395669774655500291

Moving on, the Govt lists all the problems with the Protocol to argue that "the circumstances exist to justify using Article 16". It talks about trade diversion; economic problems; and political & community instability. It says that "it has carefully considered action" under A16.

But because there are "limits on the actions that can be taken under Article 16", the Govt says that it "concluded" decided against using the mechanism at this point. The careful wording here suggests that there may have been divergent views inside the Govt on this.

In my view, the main reason for not using Art 16 now is that Art 16 is deeply insufficient for the Govt's level of ambition - to rewrite the Protocol, not to merely tinker with its technicalities and implementation. (More on this below)

Art 16 wouldn't help here. Any measures that the Govt would take under Art 16 would have to be temporary; proportionate to the types of problems; and its justification would've been almost certainly subject to a legal challenge by the EU before the arbitration panel. Not easy.

So, what does the Govt want instead? Here we get to the crux of the document: the proposal to find "a new balance for the Protocol".

The Govt proposes to renegotiate key aspects of the Protocol - those addressing trade in goods and the entire governance framework. A big ask.

There are 4 main areas where the UK wants changes.

1. On customs and manufactured goods moving GB>NI, it wants businesses to declare whether goods move to NI or IRE and waive customs formalities if destined for NI. There would still be customs formalities on goods moving to IRE.

2. On SPS goods, here the Govt wants to extend the same model as described above. But full EU SPS requirements would be applied for goods destined for IRE. Live animals would need a different approach.

The result is a dual regulatory regime in NI. All goods, produced either to UK standards or the EU's, would be accepted on the NI market as long as they are labelled appropriately. Underpinning this, the Govt says, would be data-sharing arrangements and market surveillance.

3. Crucially, the Govt proposed renegotiating governance of the Protocol. Currently, EU law within the Protocol is policed by the EU institutions and enforced by the ECJ. Johnson/Frost hate this and want to scrap the role for EU institutions and esp the ECJ.

4. Lastly, the Govt also wants to scrap the state aid provisions (the infamous Article 10) and make NI subject to the UK's new subsidy control regime rather than EU state aid rules and the Commission's enforcement of those rules.

This all resembles a proposal that the UK tabled to the EU in September 2019, before the crucial Johnson/Varadkar meeting. The EU rejected those proposals. So, this is broadly, though not wholly, a recycled set of proposals that were already discussed and didn't go anywhere.

Is there a merit in any of these proposals? To be fair, I'm sympathetic to some of the Govt's objectives here. As I've said many times since last year, it's clear that the Protocol leads to various legal ambiguities and practical and political challenges. And...

I suggested a similar solution in June. But (!) I intended for the principle of mutual recognition to be applied on a more limited basis - only to a special class of SPS goods and medicines, not as a blanket principle to justify renegotiating the Protocol.
prospectmagazine.co.uk/politics/how-t…

Overall, I have three big concerns with the Govt's proposals:

(i) Scope of the dual regime: I can see how this could avoid problems for sensitive goods, eg medicines, chilled meat, etc, but I don't see the rationale for extending this principle to all goods, inc manufactured goods.

Also, extending this to all SPS goods, rather than a special class of sensitive goods, will make this a non-starter for the EU. They could justify certain exemptions from EU law for important imports into NI (eg medicines, food), but how justify the blanket principle like this?

(ii) Governance: A trust-based solution like the one suggested by the Govt today requires more, not less, governance. In the absence of strict rules, robust governance provisions become a means of institutionalizing trust between partners.

But the Govt, completely nonsensically, demand scrapping all governance while also suggesting a highly trust-based regime. A complete misjudgment by the UK which only shows how little understanding there is of the EU and how it operates.

Also, it makes literally no sense to request scrapping a role for the ECJ in the dispute settlement procedure when there will still be EU law within the Protocol. The Commission will never agree to this because their hands are tied by the jurisprudence on the autonomy of EU law.

And, most importantly, (iii) the tone: The Govt has put forward some sensible ideas, but the overall offer (esp on governance) and the tone have completely undermined their own objectives.

How the hell do you want to convince the EU to agree exemptions from EU law if you are literally asking them to blatantly ignore their own legal order? It shows a complete lack of understanding, a bad judgment, and no diplomatic skills from the current team in No10.

Where does that leave us? The EU will reject this proposal; mutual trust will be lower than ever; and, due to the extreme positions presented by the Govt, the two sides won’t find common ground to talk about the types of flexible solutions that are actually necessary.

Instead, the EU will most likely press on with the next stage of the legal challenge that it has so far resisted. I’d also expect a second dispute, for the UK’s failure to implement the Protocol in good faith. That in turn opens up the possibility of x-retaliation in the TCA.

After the EU rejects these proposals and the Govt faces another decision to extend the grace period for chilled meat beyond September, the UK will feel justified in using Article 16 at that point.

Rather than trying to advance the talks constructively, the Govt put forward a document filled with self-pity in its tone and ill-considered suggestions in its contents. In doing so, it has burnt all the little trust that remained with the EU and capitals.

The consequence of all this is that the people and businesses in NI will face more uncertainty than before; the political and diplomatic relations with the EU will deteriorate more; and we’re in for a series of legal fights that the UK will most likely lose. (Ends)