Richard North, 15/02/2020  

An excitable piece on the RTÉ News website from their Europe editor, Tony Connelly, wrongly suggests that the UK could face the ECJ if it does not implement the Irish protocol and fails to carry out checks and controls on goods going from Great Britain to Northern Ireland.

This comes just at a time when the Telegraph has published a long article suggesting that the Johnson administration is thinking about "de-dramatising" checks on goods coming in to Northern Ireland from the rest of the UK.

The concern among EU officials, we are told, is that the UK will decide that such checks can be done in a way, on a risk-based basis, away from the border and without any new infrastructure at the ports.

This, in itself, might prove contentious as the Withdrawal Agreement specifically excludes the UK from acting as a "leading authority" for risk assessments.

But, according to the Telegraph, the Government does not dispute its obligations, which are enshrined in the Withdrawal Agreement as a jointly ratified international treaty. Instead, it seems to be intent on stretching the envelope, implementing those obligations with a feather-light touch which would most definitely not meet with the approval of Brussels.

The situation is further complicated by another RTÉ report which has the new Secretary of State for Northern Ireland, Brandon Lewis, trotting out a familiar Johnson line, saying that there will be no border between Great Britain and Northern Ireland.

Thus, apparently, the scene is being set for a major confrontation between Brussels and Whitehall, with RTÉ's Connelly ramping up the pressure by running the ECJ story.

He actually claims that, if the UK does not put in place a checking regime or if it fails to carry out the correct checks and controls, then the EU can take infringement action, potentially leading to the European Court of Justice.

Supporting this, he cites an extract from Article 12(4) of the Irish Protocol, which states: "In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties", to which he adds text which is not in the Agreement, stating that this applies "in respect of how checks and controls are applied".

Actually, Art 12(4) reads back to Article 267 of the Consolidated Treaties (TFEU) which allows for the ECJ to deliver a ruling to a tribunal that needs a decision on the meaning or implementation of Union law.

And that's where it stands in respect of the Withdrawal Agreement. Disputes are handled initially by a Joint Committee and, in the event that the matter cannot be resolved, it is referred to arbitration. The ECJ only enters the fray if the arbitration panel needs to clarify an aspect of Union law, or the interpretation of the Withdrawal Agreement.

In that case, the ruling is addressed to the arbitration panel and it is that panel which rules on the dispute, the recommendations of which are binding on the parties. There is no direct involvement of the ECJ.

If the party in default fails to comply with the ruling, the arbitration panel can impose a lump sum or penalty payment to be paid to the complainant and, if the respondent persists in not complying with the arbitration panel, the complainant is entitled to suspend any provision of the treaty, other than that relating to citizen's rights.

The outcome of any dispute between the EU and the UK, therefore, is determined by an arbitration panel. The end stage could be the suspension of the Irish Protocol, leading to a hard border between Northern Ireland and the Republic.

But, if RTÉ is making mischief with its dose of misinformation, the outcome is serious enough and could signal a serious breakdown in relations between the EU and the UK. That is what is at risk if Johnson pushes the issue too far, and then digs his heels in, refusing to accept the outcome of a dispute procedure to which he (and this Parliament) has agreed.

Nonetheless, the Telegraph, with evident glee, is headlining that a "major clash" with the EU after "increasing rumblings" in Westminster that Johnson might not have been bluffing – and that the UK might actually not institute physical checks at the (Irish Sea) border.

However, while Johnson's "de-dramatised" checks (which would only take effect after the end of the transition period), might raise the temperature in Brussels, the dispute provisions would then kick in. Initially, at the Joint Committee stage, the parties would have three months to resolve their differences. The arbitration panel is then allowed another six months.

Implementation of non-compliance procedures, up to the suspension of the treaty, could take another year. With other delays built into the system, from complaint to the "nuclear option", we are basically looking at two years of a multi-stage process.

If it ever went that far, with the UK refusing at any stage to accept the rulings, this would be an unprecedented situation, putting the UK in breach of an international treaty and thus in breach of international law.

The ramifications of this would be huge, to say nothing of immensely damaging, and it is almost inconceivable that relations could ever deteriorate to this extent. It would be the first time in living memory that the UK has gone out of its way to break a treaty.

One suspects, therefore, that this is sabre-rattling on the part of the Johnson administration, perhaps in expectation that some of the provisions of the Irish Protocol can be modified by the "future relationship" treaty. There certainly is provision for that in the Withdrawal Agreement. 

Something of this looks to be in the statement by Brandon Lewis, who was happily chirping about Barnier being "the man who said we couldn't open the Withdrawal Agreement". But, he says, "Our Prime Minister got that agreement open, got a new agreement. We've got it through parliament, we've left the European Union".

From this, we might infer that there is a plan to reopen the Irish Protocol and seek better terms for the UK. This is far preferable to the idea that the UK is embarked on an action that will have it breaching international law. By the time the media has finished its mischief-making, however, this is not at all clear.

Nevertheless, any such ambition could also be considered recklessly optimistic. The Union has made it abundantly clear that it will take any measures necessary to protect the integrity of the Single Market. So the very last thing it is going to do is leave a wide open back door, in the form of an unregulated Irish land border.

The very idea that Johnson apparently believes this is even a possibility itself says a great deal about the man. Or, as Pete observes, at this point I start to wonder if our politics functions in a parallel universe.

It's bad enough, he says, that the minister for Northern Ireland believes it but the rest of the party probably does as well. Is the penny ever going to drop? What happens when it does? How long will they keep making excuses for Johnson?

Well, I suppose that, as long as he can get lurid headlines out of it, the Johnson tendency will be to play to the gallery. But in due course, playtime will be over and the grown-ups will set the agenda. And, at that point, some of the more prominent players in the current soap opera might look rather foolish.

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