Richard North, 24/02/2020  

If the Sunday Times is correct in its claim that Johnson's Brexit team has been ordered to draw up plans to "get around" the Northern Ireland Protocol, then we are in an interesting, if not disturbing position.

The Protocol is an integral part of the Withdrawal Agreement and, as such, has the status of an international treaty. Conformity, under international law, is embodied in the Vienna Convention on the Law of Treaties (Article 26), which states: "every treaty in force is binding upon the parties to it and must be performed by them in good faith". This is the doctrine of pacta sunt servanda, translated as "agreements must be kept".

If there was any doubt at all about the application of this doctrine, it is dispelled by the Withdrawal Agreement itself. Article 5, with the heading "Good faith", states that:
The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.

They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.
As to the specifics of Johnson's "get around", this is a reference to the checks on goods passing from Britain to Northern Ireland, whence we are given to understand that officials in Taskforce Europe, run by David Frost, are working in secret on proposals to ensure that these are avoided.

And yet, the purpose of any checks is, on the one hand, to protect the integrity of the EU's Single Market and, on the other, to avoid a hard border between Northern Ireland and the Republic. On the face of it, even seeking to avoid these checks would appear to be an activity which could "jeopardise the attainment of the objectives" of the Withdrawal Agreement, and thus put the UK in breach.

The situation is complicated though, by a lack of information as to what checks will be necessary, and how they will be applied to the various classes of goods. In part, these issues are to be decided by the Joint Committee, established by the Withdrawal Agreement but yet to take effect. Doubtless, one of its first tasks will be to decide the criteria to be applied by inspection staff, which it will do so by way of a decision which will be binding on the parties.

Before that hurdle can be overcome, though, the precise nature, makeup and membership of the Joint Committee must be agreed, and it is this area which could become the first battlefield, delaying the implementation of the Irish Protocol and thereby preventing the adoption of an inspection regime.

It is this that is being suggested as a possible area which the UK will seek to exploit. But, if that is the case, the Johnson administration could be playing with fire.

Under Article 12 of the Protocol, European Union representatives have the right to be present during any activities of the UK authorities related to Customs and the movement of goods. Furthermore, if the Union representative asks for specific control measures in individual cases to be applied, UK authorities are obliged to carry them out.

It doesn't take a great deal of imagination to work out how EU officials could operate in circumstances where the Joint Committee had yet to establish inspection criteria, although here again there is an area which requires its intervention.

This is the requirement for the practical working arrangements relating to the exercise of the rights of Union representatives to be decided by the Joint Committee, upon proposal from the Specialised Committee. Presumably, without such arrangements being decided, the operations of EU officials might be hampered.

However, tucked into Article 12 is an obscurely-worded provision which appears to give the ECJ jurisdiction over the powers conferred on the institutions, bodies, offices, and agencies of the Union, invoking Article 267 TFEU.

In any or all respects, delays or obstruction in sorting out inspection details could place the UK in a position perilously close to a breach (or even multiple breaches) of the treaty.

Before we even get down to implementing the Withdrawal Agreement, therefore, we could be seeing dispute settlement proceedings being invoked. But we could even find ourselves arguing a case in front of the ECJ in Luxembourg.

Here, though, the EU is unlikely to treat any disputes as isolated affairs. Its attitude to the coming trade negotiations is very much conditioned by the UK's good faith in implementing the Withdrawal Agreement (together with the integral Irish Protocol).

Even at this stage, where the negotiations have not started, suggestions of bad faith on the part of the UK could bleed through into the Union's deliberations on its formal negotiating objectives, which are in the process of being concluded.

Union officials and negotiators are known to follow closely the British press, and can hardly be impressed by the claim in the Sunday Times that the new attorney-general, Suella Braverman, might have to give new legal advice to justify the UK's move to by-pass checks.

Still less will they be impressed by the assertion that she was appointed because her predecessor Geoffrey Cox was not willing to countenance action that would be seen in Brussels as a breach of the exit agreement.

In a situation where relations between the EU and the UK are on the edge, having deteriorated in recent weeks and the war of words intensified over the "level playing field" issue, this is precisely the sort of thing that will have EU negotiators under pressure from Member States to take a hard line during the talks, which are scheduled to start in the week commencing 2 March.

Various reports from Brussels and from Berlin and Paris, have already indicated that Member States are having difficulty in finalising the negotiating objectives, which are supposed to be published in their final form tomorrow.

There may, of course, be an element of grandstanding in what could be a leak inspired by No.10, couched in terms which are aimed to strengthen the UK's hand in the talks. This might especially be the case if "team UK" believes it can extract concessions from the EU, to be appended to any new treaty, which will have the effect of watering down the Irish Protocol.

That has not so much been hinted at, but when one reads between the lines, it could explain some of the recent behaviour by the Johnson administration. But it would tend also to strengthen the conclusion that Johnson himself is having difficulty in understanding where the EU's own red lines lie.

In the detail of the Protocol, the Union has probably gone as far as it can go and, in some respects, it might have gone too far, granting an overly favourable status to Northern Ireland. The chances of any further concessions being forthcoming, therefore, are probably as close to zero as makes no difference.

Thus, if the Johnson administration is playing games – a political version of "chicken" – this is singularly ill-timed. It is also unlikely to have any beneficial effect on the coming negotiations.

More to the point, there is a significant danger of collateral damage here. A certain amount of artistic licence is acceptable in the ritual pre-negotiation "dance", but if the UK acquires a reputation of playing fast and loose with treaty provisions, it could acquire the status of an international pariah, finding it very difficult to do deals with any potential partner.

Nonetheless, the official Downing Street position is that: "The UK will comply with all of its legal obligations". But with Johnson at the helm, these could be just words. It will be hardly surprising if, in Brussels, the political temperature has gone up a notch or two.

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