“A tiny little effort” from the UK is needed to make the protocol work, says the EU. . Will Johnson make it and take the DUP with him?

Is there any hope that Boris  Johnson will at last begin to deal straight with all parties on the protocol?  He arrives in Belfast on Monday without a coherent position. Without one, what has he got to offer?  He has yet to pronounce where he stands. The cabinet is clearly divided on Liz Truss’s vow to go it alone unilaterally.  However much he sympathises with their cause , he must oppose the DUP’s deep boycott of the Assembly.  No 10 has declared “ his respect for “ Sinn Fein’s mandate”  as well as  unionist opposition to the protocol.

Perhaps he can persuade the DUP to take part in the election of a Speaker.  This would at least allow the Assembly to develop a position on the protocol in a cross community spirit which acknowledges the strength of unionist reservations while recognising the unfeasibility of tearing the protocol up. Good luck with that. If Johnson is remotely honest he will stress that he still favours a deal with the EU and that any final solution will take many months at Westminster that NI can ill afford.

He will pledge to consult the Assembly on progress and recognise their veto power of a simple majority vote in 2024. This is unlikely to be exercised.

The future does not favour the DUP.  More elections,  potentially  for the Assembly in the late autumn and for Westminster by 2024 are unlikely to strengthen the DUP’s position.  Meanwhile pressure for some Assembly reform will mount from all quarters to create a more stable system  that will reflect the  DUP’s  permanent -looking  weakened strength.

Later…

Tony Connelly, RTE’s Europe editor  reports that Johnson and Truss will urge EU national leaders to stretch  the Commission’s brief to limit checking to agri- goods heading for the south of the border and other flexibilities; the prize being Peace and the restoration of the Assembly.

Sources say the thrust of the UK strategy is to convince member states to give Maros Šefčovič a new mandate to restart negotiations.

London wants to scrap virtually all customs formalities on goods that are clearly going to stay in Northern Ireland, and to exempt food products from sanitary and phytosanitary (SPS) controls on the basis that UK food safety standards are just as high as the EU’s.

The UK says it would subject goods going south to full SPS checks at Border Control  Posts (BCPs) at NI ports of entry..

Officials are also proposing “enhanced biosecurity cooperation” where specific risks emerge.

According to a state of play memorandum circulated by the European Commission at the end of February, the UK had promised to submit a delivery plan to complete the construction of BCPs, with “concrete timelines, deliverables and milestones towards the completion of full-scale BCPs, which need to be able to perform all the [EU SPS] controls required…”

London says those BCPs would be completed but only to check on agri-food products only crossing the land border.

It’s understood London does not regard its demands as a wholesale renegotiation of the Protocol.

Officials suggest that if the European Commission is perfectly capable of convincing member states to adopt new EU laws, then Šefčovič should be able to convince capitals to stretch the EU’s position, if the prize is a restored Executive.

Meeting the UK’s demands, say sources, would not amount to stripping out the Annexes to the Protocol, which spell out which single market legislation applies in Northern Ireland.

Rather, the EU could be much more flexible and “proportionate” in how it applies those rules.

This seems a tall order, especially given the way the UK is going about its negotiation. The EU seems unlikely to radically relax its food safety approach given how politically sensitive the issue is for big food producers like Italy and France.

According to one diplomat, briefed on the difficult Truss-Šefčovič phone call on Thursday, Šefčovič “appealed to her to go back to the table, that [the UK] had never really explored the possibilities of the October package [of EU proposals] and that unilateral action wouldn’t work”.

Can he persuade the DUP on the one hand and  Emmanuel Macron on the other to play ball?To succeed he will need to build fresh trust by showing consistency of approach to each. Good faith would start by completing border posts to the EU’s satisfaction, the task so bitterly resisted by Edwin Poots and militant loyalists. He might remind  the DUP that if they’re stuck on identity the GFA  which they are now so stoutly defending, defines NI people as British, Irish or both, a position  obviously compatible with the protocol.

As I show below , the fortunes of Northern Ireland were always collateral damage at the heart of  Johnson’s negotiating from 2019 onwards. Perhaps it  made a kind of hard  sense to “ get Brexit done”.  But what is the point of pursuing a hard line on the protocol now? This time there  are surely few votes in it for him.

Truss’s stance has attracted  execration from most sides including the centre of the Conservative party . Perhaps the hard line  will act as cover for fresh negotiations on details within the terms of the protocol.  In an interview with the FT on Thursday EU chief negotiator  Maros Šefčovič, said:  

if the UK decided to override the protocol, Brussels would have to impose customs and animal health checks on goods, but did not say how or where these checks would take place…

Šefčovič acknowledged that the protocol has affected intra-UK trade and has proposed fewer controls on freight from Great Britain that is destined for Northern Ireland. “If we work together, we know how to reduce the checks by 80 per cent and we are proposing express lanes. The same for customs procedures, cutting them at least by half.”

Šefčovič said he could only discuss such changes if the UK implemented the measures it had already agreed, such as allowing EU officials to access real-time, complete customs data. “This is really a tiny little effort the UK has to do to make sure that this system works,” he said. “There is a basic pre-requisite [for concessions] that we have also to feel that the UK is ready to meet us halfway . . . that we would get access to the IT system, that they accept the fact that there has to be some minimal checks.” He added: “I want this to end well for EU-UK relations because I think we just really need to close this chapter and build a new one.”

The position of Johnson’s government has  been constantly marked by mixed messages and schizophrenia  over whether to defy or comply with EU terms  up to and beyond the Withdrawal  and Trade Cooperation Agreements. It has been exposed in excruciating detail l in a riveting account by Andrew McCormick the former senior NI civil servant to the think tank the UK in a Changing Europe.  Sam McBride has provided a handy summary in the Belfast Telegraph. From as objective a position as we are ever likely to get, McCormick, for a  time the acting  head of the NI civil  service,  exposes the incompatibility  between civil  service preparation  for a sea border required by law, and  the wrecking effect of Johnson’s cheer lines that it will never happen.  He was clearly frustrated by the lack of an NI strong voice in the earlier absence of the Assembly and by  poor consultation by a Whitehall coping with  contrary political instructions.  Severe damage was done to the DUP when Edwin Poots took Johnson literally.

McCormick interview extracts

2019

My strongest criticism of the Commission is that they went along with some very Delphic language in the Protocol. I think the wording should have been clearer – especially on the key fact that the many aspects of EU law that were still to apply in Northern Ireland would mean significant and extensive controls: the recital referring to the “shared aim” of “avoiding controls at the ports and airports to the extent possible…” strikes me as actually misleading – it’s a bit like saying: “I will cross a busy motorway avoiding the traffic to the extent possible”.

The October 2019 deal contains much that is an exact replication of the backstop text, so I am in no doubt that UKG Ministers and officials must have understood fully the implications of the deal they did on the Protocol. So maybe my passionate belief, that it would have been helpful to have got down to practical discussion about what the Protocol meant, starting in October 2019, was naïve: I now have a worry that they wouldn’t do that not because they didn’t understand it, not because their expectations were wrong, but because they actually did understand it, but had some reason not to really get down to the detail – notably on SPS and medicines – at a much earlier stage.

In his statement to Parliament on 9 December 2020, Michael Gove said that that agreement delivered on the Government’s promise to “…ensure that the important Great Britain-Northern Ireland trade flows, on which lives and livelihoods depend, were not disrupted…”. In response to questions, he went on to say: “… we have been talking to traders, supermarkets in particular, to make sure that they are ready for any export health certificate requirements. We know that some supermarkets are already ready. One or two others need time in order to get ready, and they requested a grace period. … We have managed to secure three months, which is sufficient time, we understand, to ensure that supermarkets are ready.” Yet, before the end of February 2021, the Government was saying instead that the supermarkets needed over a year to be ready, and indeed since then the grace periods have been extended indefinitely. I find it hard to believe that, in December 2019, the supermarkets had, in truth, given the Government the assurances that they could ready within three months.

Maybe this is a good time to talk about border control posts. The NIO would ask: “what’s the Executive’s position on that”. “Well, sorry, the Executive doesn’t have an agreed position.” Now, that leads clearly to the substance of that issue, where there was a chasm between Boris Johnson’s rhetoric about no controls and what UKG officials were doing and saying….

Q But the correspondence made it very clear that UKG wanted the BCPs to be established as quickly as possible..

I was told in the spring of 2020 that this very clear and basic requirement became the touchstone (and, notably, UKG officials were not disputing the alarming fact as stated, because, as I said earlier, they knew and understood what the Protocol meant). If the EU couldn’t see the UK making visible progress on that, nothing else would have any credibility – but only we as the devolved administration could fulfil the obligation. Stepping back from the detail, this now looks like a burden far too great for the immature and divided devolved administration to carry, so I feel strongly that the key responsibility for all that happened subsequently is with the UKG.

Q But  later Edwin Poots tried to stop the work proceeding did he not?

AMcC: Yes..Now the DUP had made it clear that the most difficult point for them was the appearance of new infrastructure – the visible manifestation of an internal “border”. But the very, very clear message from London was that it was necessary. When DAERA officials were instructed not to issue the tender documentation – the next key step on the critical path towards creation of the BCPs – we had clear responsibilities to advise Ministers on the implications of the possible courses of action. This led to a very difficult meeting of the Executive on the evening of 10 September 2020, which has been reported extensively in the media, so that the only new point of fact I am stating here is to identify my own involvement. I had to set out the facts, notably that if the work did not proceed, the Executive would be in breach of domestic and international law. The next day, a letter arrived from the DEFRA Secretary of State, George Eustice, basically saying what I’d been saying, and underlining that the UK Government expected DAERA to proceed with the necessary work without delay. Hence by the time an opinion

Q How does any of this square with the line from the Prime Minister that there would be no checks on goods moving from Great Britain to Northern Ireland?

AMcC: That is, of course, the enormous question – and the answer is that it doesn’t – not at all.

The statement in NDNA (paragraph 10 of Annex A) is consistent with that position: “To address the issues raised by the parties, we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021.” (emphasis added – to the identical phrase as used in December 2017). It was self-evidently impossible for the UKG to make a commitment to unfettered access in both directions as that would have been obviously going beyond the Protocol.

I don’t think anyone can take seriously the idea that they didn’t really expect the Protocol to be as problematic, that they were duped or that the EU were not clear in what the provisions of the Protocol would imply. Any attempt to run that argument ignores the plain fact that there were intense and detailed discussions throughout 2020. All the points that have been described as overly demanding – or pettifogging – were addressed in that process. So having asked for certain mitigations, it’s not remotely credible to say that the UK expected the EU to have granted them – are they in effect saying – “you see all those things we asked for and which you said weren’t possible – we thought you would actually give them to us”!! So at best, there is a serious problem of mixed messages. It is hardly surprising that the EU distrusts them when they changed their stance so radically. The TCA and the Protocol.

Q: And what about intergovernmental relations within the UK?

AMcC: Arrrgh. So, the best, the apogee, was Cardiff in January 2020, at a meeting of the JMC(EN). Just after Ministers were back, there was constructive discussion on the “three rooms” model – the negotiating room, a ministerial anteroom where the devolved administrations would meet with the UKG negotiators, and, supporting that, an official anteroom. It seemed to be accepted that the second room was where there would be discussion that would genuinely influence what the UK would take into the negotiations with the Commission. And the third room was official level brokering and preparation to inform ministerial discussions. The UKG appeared to accept that, so that’s why I’d describe that as a high point. But the three-room model was never applied. There were some discussions with officials but there was never a real opportunity for devolved ministers to influence the negotiations.

Q in retrospect, what might have made a difference to the outcomes that we have today? I suppose structural issues, resourcing issues, political issues.

AMcC: Well, I think the fundamental point for me is that I find it hard to dispute the idea that London did not actually prioritise solving the issues arising from Brexit that affect Northern Ireland, but used those issues as tactical considerations in the bigger game. They accuse the EU of using Northern Ireland as a pawn , but I think the key difference is that the EU spelled out the choices that London would have to make. The commitment to avoid a hard land border was strongly expressed by all sides, and the dilemma – or the famous “trilemma” – all flows from that. So, could we as Northern Ireland have stuck up for ourselves more? Maybe, if it had been possible to get something thrashed out between the DUP and Sinn Féin, they did in the McGuinness-Foster letter of August 2016, but maybe it was never possible.

Q: I suppose here also one of the big things that we did not have in Northern Ireland was the Executive in place. Do you think that would have actually created a situation where there could have been more exposure of what London was doing?

AMcC: Yes. And I think much more chance, you know, much more chance of a local voice being listened to. Again, getting an agreed position would have been difficult. I go back to Martin McGuinness’ resignation letter in January 2017: RHI was the pretext, but Brexit was among the reasons that I think it was part of why the Executive fell in January 2017. Maybe Sinn Féin thought there was no chance of progressing Brexit constructively and that, actually, there was an electoral advantage for them in exploiting the issue. I just struggle to see how things could have been better.