As the drama over the Northern Ireland Protocol continues—with no imminent end in sight—I’ve written a paper @InstituteGC on where we are now, where we might be heading, and what could be a way forward for the Protocol.
Despite the “softening” of the tone from the UK, there’s been very limited substantive progress in the negotiation room so far. A bit of movement on medicines—where the two have been reasonably close since EU’s October offer—but there’s been little progress on other issues. /1
The knottiest questions of governance of the protocol and role of EU institutions, and CJEU in particular, have been virtually untouched. In reality, the softer tone disguises unwillingness to even discuss two points of principle over which the two sides disagree completely:
A softer tone from both sides, but there's been a little substantive movement thus far. Medicines are the easiest piece of the jigsaw. Still a long way to go for agreement and my assessment remains that the chances of a deal before the end of this year are slim.
The most significant development, IMO, is on the UK's side. Following a recent Cabinet Cttee discussion on Art 16, and with a weakened PM, ministers are now starting to question Lord Frost's level of ambition for the new protocol and his strategy with Art 16. Eg Gove today.
At some point in December, the PM will have to start engaging with Brexit and NI again and make a decision: (i) take what's on the table from the EU, imperfect as it is, or (ii) push harder with Art 16 despite the risks, or (iii) kick the can down the road into January.
To be clear, Lord Frost said: "our proposals in the command paper don’t require [moving checks to the Irish border]". In other words, the UK is saying, 'look the Commission, we know you prefer our proposals to an unenforced border, agree to it and we'll all be happy.'
Which might give us a sense what the govt's strategy could be: UK wanting to find negotiated solution until last minute > EU not budging > Art 16 bang due to EU intransigence > Command Paper implemented unilaterally > UK proven right > EU accepts Command Paper as new protocol
The biggest flaw in this, I think, is that the EU wouldn't let the UK establish new facts on the ground. It would seek to retaliate soon and firmly enough so that the costs, both economic and political, are evident and deter the UK from putting its plans in place.
N Ireland Protocol latest: I understand there are some discussions in Whitehall on whether the protocol can be amended under Art 164 of the withdrawal treaty, which gives the Joint Committee powers to "correct errors, address omissions, or address unforeseen situations". /1
This is seen as one potential avenue to amend the text without "renegotiation" of the treaty, which the European Commission has so far resisted and says it would require a new mandate from the EU27. /2
My own view is that Art 164 could be used to empower the Joint Cttee (UKG + EU) to address specific parts of the protocol that are shown to be the result of "unforeseen circumstances".
But I doubt it can be used for wholesale changes the UK outlined in its July Command Paper. /3
Lots of discussions about how the EU would respond to the UK invoking Article 16 as a cover to implement its July command paper. However, I continue to think that the EU's response will be more cautious, even if it is robust. /1
The biggest risk for EU is that it overreacts with respect to the TCA (eg with a 12-month deadline for suspension), but UK proposals turn out to work reasonably well in practice. That would mean eventually having to back down, or impose a barrier between IRE/EU. Not great. /2
Which is why I think EU is more likely to retaliate with unilateral, asymmetrical measures that will have a deterrent effect but don't yet touch TCA and its provisions. Likely to include temporary suspension to data adequacy, Horizon Europe, and stepped up border enforcement. /3
Yesterday was the anniversary of the birth of the first Czechoslovak Republic, formed 103 years ago. It was a unique state; founded on democratic principles and tolerance in a multi-ethnic society, before Czechoslovakia experienced two authoritarian regimes for half a century.
My grandmother was born in the first Republic. Then she lived in a Nazi-occupied Protectorate of Bohemia and Moravia, spent most of her live under the totalitarian communist regime and, one day in 1989, it was a democracy again. She had a profound distrust in authorities.
She was a very ordinary woman. Uneducated, grew up in poverty and had to earn everything she ever had. But the political events of the 20th century that changed the face of central Europe shaped her life, and the lives of so many in her generation, in most extraordinary ways.
"The £30bn exchequer cost of Brexit each year has forced the Chancellor to choose between respectably-funded public services and keeping taxes low. Sadly that’s one legacy of the past 11 years the government doesn’t yet seem willing to revisit."
"Adding flexibility to the fiscal rules is sensible given how many have been discarded in the face of unforeseen developments over the last decade. But in other respects, the Chancellor’s new rules look to be a repeat of past mistakes," says @JamesBrowneRTC on the fiscal rules
"Yet another freeze in fuel duty suggests that the government has its head in the sand about the electric vehicle transition and the threat to tax revenues," say @timbolord and @PalmouChristina on the fuel duty
A nuanced but important point: this doesn't preclude the ECJ getting specifically involved in interpreting what EU law means, like in the dispute settlement body of the Withdrawal Agreement and the Swiss IFA. Ultimately, it is the arbitration panel that makes the final decision.
Another important point here is that the UK is explicitly arguing for arbitration - a quasi-judicial way of settling disputes - not merely political dispute resolution (as is often the case in international treaties).
If UK argued that dispute resolution should be purely political (and, as such, there would be no risk of an external tribunal interpreting EU law, to which the ECJ is downright allergic), it would just about possible to leave the ECJ out of all this.
Having taken a bit of time to read through the EU's N Ireland proposals, here're some reflections on what they mean, what it means for the future of the Protocol, and where we're heading in wider UK-EU relations.
Before I get to practical and tactical considerations, there's an important "philosophical" point to make first. These proposals are significant because they move us away from general application of EU rules to NI to a world where aspects of EU law can be exempted for NI. /2
This is a big shift for the EU. The Commission had previously insisted that it operated in a constrained space where "bespoke ideas" weren't mostly possible. So, yes, the EU did move, on the point of principle, and that is important. /3
The two most interesting things to watch out for in Lord Frost's speech on the NI Protocol today will be:
1. Does the UK set out its view of when it is legitimate for it to invoke Article 16?
Most people, including myself, think that this will most likely be the "trade diversion" condition in Article 16.
However, zooming in on "trade diversion" would risk undermining its Article 16 case, if the UK seeks to use its opposition to the ECJ as the main grounds for rejecting the EU's proposed changes to the Protocol.
There’s a clear landing zone on the ECJ issue in the NI Protocol, which I tweeted about yesterday. The problem, as ever, is politics: the Commission conceding on this fundamental point would signal to the UK its readiness to fundamentally alter the Protocol. /1
This is the landing zone which I floated previously. Replace Art 12 of the Protocol on the role of EU institutions with the text from the EU-Swiss IFA, to which the EU had previously agreed in a context of applying EU law in a third country. /2
However, such changes would require a bigger discussion among the EU27. It’s hard to see how this can be done now when a) there’s a serious trust deficit in the relationship with UK and b) Poland openly threatens to undermine fundamental principles of EU law and the ECJ. /3
Big news from the Czech Republic where Andrej Babis is set to lose the parliamentary election. The coalition Spolu and the Czech Pirates/Stan likely to form the next coalition government, ending the last 7 years in which Babis was in government.
It’s not just about Babis narrowly escaping the first place, but also that the Czech social democrats (CSSD) and the communists will not pass the 5 percent threshold, meaning that they won’t be able to enter Parliament and be Babis’ potential coalition partners.
It’s also the first time in over 30 years - since the 1989 Velvet Revolution - that the communist party will not be in the Czech Parliament. Its share of vote was usually around 10+%, but this time the party failed to meet the necessary threshold.
True, the UK has asked for the impossible on governance. But — please stay with me — there’re easy concessions that the Commission can give to the UK, both on the ECJ and on NI involvement in the pre-legislative process (“decision-shaping”). /2
Why do I think those are “easy concessions”? Because not that long ago, the EU gave a more balanced governance offer to Switzerland, in the EU-Switzerland Institutional Framework Agreement negotiations. Exactly of the kind that the UK would want for NI. /3
Excellent piece by @pmdfoster on an important issue which didn’t get enough attention when it was announced a few weeks ago.
I wholly agree that the Govt’s proposals to amend the special status of EU retained law risk creating significant uncertainty. /1 ft.com/content/e5a7c9…
What’s more, it risks a hugely complex domestic legal environment and undermining the Union. True, UK Govt may choose to amend EU-inherited rules as it wishes. But it has to be mindful of the consequences; in many areas the devolved administrations will make their own choices. /2
There’re also some notable constraints on what the UK Govt can, and cannot, do with the EU-derived jurisprudence under the Withdrawal Agreement (and, indeed, the current NI Protocol). It won’t be as straightforward for UK ministers to shake up the system as they may wish. /3
Looking at the list of regulations for reform announced by Lord Frost, most have nothing to do with the EU. So many random ideas, it's as if you asked government departments to come up with any ideas, and as quickly as possible. Embarrassing. assets.publishing.service.gov.uk/government/upl…
What exactly does the National Underground Asset Register have to do with EU regulations?
I think there’s an enormous value in adaptive policymaking. It starts from mapping the environment, identifying uncertainties, and assigning values to possible outcomes. Doing this for the long term is inherently uncertain. /1
Whether Brexit is good or bad in the long term is inherently uncertain because we don’t know what the future will be. But what we know is that it’s contingent on two major variables: (a) the UK’s capacity to outperform EU in key aspects of policy, (b) EU ability to carry on. /2
Re (a), how likely is it that the UK outperforms the EU in domestic and intl policy? That a smaller market will exert greater influence globally? That it will be able to do freely what it wants domestically? And that it will not be diminished by the unraveling of the union? /3
Some thoughts on the UK's new Command Paper on Northern Ireland, what it means, and where it leaves us.
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.