Thread by @GeorgePeretzQC

Some comments on @DavidGHFrost’s introduction to a paper on the Protocol published today by Policy Exchange. policyexchange.org.uk/wp-content/upl…

Frost asks the question why the May government - in the 2017 joint report - accepted that alignment with some EU rules would be needed to avoid checks and infrastructure on the Irish border.

There is an obvious answer to that question: that (the famous Trilemma) that the only ways of avoiding checks/infrastructure at the Irish border were (1)to align with EU customs/goods rules in NI, with checks/infrastructure over the Irish Sea or (2) UK alignment with those rules.

Frost puts forward three different rather different reasons. One is a version of “blame Whitehall”. Another is “blame Parliament”. But neither of those grapple with the Trilemma.

This reason tries to deal with the Trilemma. It’s a denial of its existence. But the reason given for denying its existence is a hopeless one.

Yes, pre Brexit, you had an open border with different currencies, laws, tax, and trading rules on each side. There still is such a border between 🇩🇰 and 🇩🇪.

But, critically, each side was in a common customs area, with the same tariffs and rules on imports from third countries. And each was in a complex system of alignment of rules on production and sale of goods.

(That some version of the latter is necessary for an internal barrier-free market to work is rather demonstrated by the UK Internal Market Act 2020, which replaced the EU framework in relation to goods regulation as between different parts of the U.K.).

Frost simply ignores that point. So he simply fails to grapple with the Trilemma. Blaming bureaucrats and blaming Parliament distract from blaming reality.

Again, blaming Parliament (Benn/Burt Act) not reality. Nor any mention of the selling of the agreement to the country as a “great deal” in the 2019 election or the decision (with a majority of 80) to ratify it.

Nor any explanation of why the opportunity wasn’t taken in the TCA to deal with aspects of the Protocol (eg Article 10 on State aid) where the conclusion of the TCA gave rise to a good case for adjusting the Protocol.

Note too the absence of any suggestion that the Protocol was unacceptable as a matter of principle or democracy. The problems are said to be with its “operation” and lack of “sensitive handling”.

But the role of the ECJ, and democratic issues, (the problems that now justify a full rewrite) are baked into the structure of what was agreed. They aren’t matters of “operation”/“handling”. If they were acceptable in principle when it was ratified in 1/2020, why aren’t they now?

NB too that much of the “handling” and “operation” was agreed by Gove in 2020. And the Commission’s October proposals make substantial moves in those areas.

The “intellectual framing” is the Trilemma. Wishing to “move beyond” it is helpless - mere denial of reality - unless you explain why it doesn’t exist.

See this thread by @pmdfoster making similar points.

https://twitter.com/pmdfoster/status/1455168858600390662