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The Irish border problem: a better way

It is now clear that the EU/UK Withdrawal Agreement negotiated mainly by Theresa May was a capitulation to the Transnational Big Business interests in the Confederation of British Industry and other “Remainer” elements who knew that parts of it – in particular the Irish Protocol – would keep the UK entangled indefinitely in the EU and its Court of Justice.

It provides that EU rules regarding State aids and customs that were thought necessary in Northern Ireland to ensure that there was no physical border between North and South could extend to the whole of the UK. This would keep Britain as a whole under the jurisdiction of EU law post-Brexit – the Irish tail continuing to wag the British dog – which is what the “Remainers”, and of course the EU, have always wanted.

An alternative and perfectly reasonable approach for after the UK has left the EU would be for the UK Parliament to pass a new law requiring all exports continuing to the EU to meet all EU requirements on pain of criminal sanctions. As only about 6% of UK business firms are involved in exports to the EU, the other 94% could be exempted from EU laws without that having any adverse effect on the EU.

After all, the previous need for EU/UK border checks was removed when the EU’s Single European Act came into force, which was only possible because the House of Commons had passed the European Communities (Amendment) Act 1986 to approve that treaty.

If the existing UK law provides a sufficient guarantee to the Irish and EU authorities that there is no need to check imports from the UK at the North-South Border, as it does, then there seems no good reason why a new UK law could not also provide such a guarantee.

This proposal was advanced by a high-powered group including former senior British Commission official Jonathan Faull in an August 2019 paper entitled “An Offer the UK and the EU cannot refuse“.

Unfortunately both did refuse it. Tuilleadh

UK “Breakin’ the Law”?

The hysteria over the British Government’s statement that the will of the Westminster Parliament will override EU law in the UK post-Brexit reflects the dismay of “Remainer” interests that this prospect would disappear in the event of “No Deal” on a trade agreement.

The EU/UK Withdrawal Agreement and its Northern Ireland Protocol were drawn up by Boris Johnson’s predecessor Theresa May under pressure from the euro-unionists of the Confederation of British Industry (CBI) and other “Remainers”.

It provides that EU rules regarding State aids and customs that were thought necessary in Northern Ireland to ensure that there was no physical border between North and South should extend to the whole of the UK.

This would keep Britain as a whole under the jurisdiction of EU law post-Brexit – the Irish tail continuing to wag the British dog – which is what the “Remainers”, and of course the EU, have always wanted.

It is legal ABC that the unwritten Constitution of the UK is that the Crown in Parliament is sovereign and can therefore pass legislation that is in breach of any external treaty, and there are many precedents for that.

The international law of treaties governs relations between sovereign States. The EU does not claim to be a State, but an arrangement between States, so that any treaty with it does not have the status of a normal inter-State treaty.

Tuilleadh

How many people looked at the 500-page EU/UK Withdrawal Treaty to find out what the Irish backstop really says?

Most people think that it is about avoiding customs posts on the Irish border. But there is much more to it than that.

The letter below from David Trimble, former Irish ambassador to Canada Ray Bassett, Northern Ireland economist Graham Gudgin and others explains clearly why the backstop as it stands should be unacceptable to any genuine democratically minded person, whether Irish or British.

At present the UK can legally leave the EU under the terms of Article 50 of the Treaty on European Union. With this Irish backstop in place the UK could not legally leave the EU Customs Union, Single Market and Court of Justice jurisdiction unless it had the permission of the EU including Ireland. The could keep the UK under EU rule indefinitely.

The Irish backstop is therefore effectively a device that has been concocted by the Brussels Commission, the Irish Government and some of the UK’s own “Remainers” to frustrate Brexit and, if possible, prevent it altogether.

It seeks to set aside the vote of the British people in 2016 to get back their fundamental democratic right to make their own laws and decide their own governmental policies.

Ireland has surrendered this right to the EU, despite all its public talk about valuing democracy, sovereignty and national independence.

This Trimble/Bassett letter points out that the backstop as it stands undermines the principle of consent in the Good Friday (Belfast) Agreement. It drives a further wedge between Northern Ireland Nationalists and Unionists instead of encouraging them to come together for a shared future.

How this backstop was agreed to by UK chief negotiator Oliver Robbins is hard to understand. One wonders did Prime Minister May herself realise its implications when she went along with it initially, although the UK Parliament has now declined to approve it?

There are perfectly reasonable alternatives to the backstop that would avoid a hard North-South border in Ireland, while respecting the existing State boundaries and the Good Friday Agreement.

For example the UK Government could give an undertaking to the EU that it will not allow its territory to become a source of non-compliant goods leaking into the EU Single Market. Such an undertaking could be underpinned by a licensing system for UK exporters to the EU that would force them to meet EU requirements or suffer penalties under UK law. EU officials could be invited to assist in investigations.

This would address the fact that what matters for the integrity of the EU Single Market is not what goods may be in circulation within Northern Ireland – which should be no business of the EU once the UK had left – but only what goods cross the land border into the Irish Republic. Full regulatory alignment between the North and South of Ireland, or between the UK as a whole and the Republic, is not necessary for this purpose. After all only some 6% of UK firms export goods to the rest of the EU.

Daily Telegraph, Saturday 12 January 2019:

Sir, Much of the focus on the Withdrawal Agreement has been on the difficulty of the UK unilaterally withdrawing from the backstop. The Irish Protocol in the Withdrawal Agreement stipulates that the backstop will take force from the end of the transition period (i.e.from January 2021 or up to two years later). It will remain in force until superseded by a subsequent permanent agreement which must be compatible with the UK guarantee of ‘no hard border including no physical infrastructure or related checks and controls’.

Alternatively, a review procedure may release the UK from the backstop but only if matters have changed in ways which render the backstop no longer necessary to achieve the Protocol’s objectives.

The review procedure lists four Protocol objectives which must be met, only one of which is ‘the avoidance of a hard border’. The others are much wider and in the case of ‘addressing the unique circumstances on the island of Ireland’ and ‘protecting the Good Friday Agreement in all its aspects’ are impossibly vague. How such wording was accepted by UK negotiators will be a matter for historians.

The fourth condition, only slightly less all-encompassing, is to ‘maintain the conditions for north-south co-operation’. In the December 2017 Joint Progress Report the UK conceded that such maintenance ‘relies to a significant extent on the EU common legal and policy framework’. The National Audit Office has subsequently contradicted this for health co-operation, but the damage was already done. Again, it is hard to credit that such drafting was accepted

obvious consequence of all of this is that the EU’s common legal and policy framework must be followed permanently in Northern Ireland if the conditions for continued north-south co-operation as defined in the Withdrawal Agreement are to be maintained. This means Northern Ireland remaining permanently within the EU customs union and the single market as described in the backstop and in a way that undermines the Good Friday Agreement itself.

Moreover if the UK Government is to keep its promises of no impediments to trade between Northern Ireland and Great Britain the same conditions will need to apply throughout the UK.

It is important for those planning to support the Withdrawal Agreement to realise that like diamonds the backstop is forever.

Yours sincerely,

Ray Bassett, Former Irish Ambassador to Canada

Lord Maurice Glasman, House of Lords

Dr. Graham Gudgin, University of Cambridge

Dr Shanker Singham, CEO Competere

Professor Robert Tombs, University of Cambridge

Lord David Trimble, House of Lords

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