Richard North, 04/03/2021  

Responding to oral questions in the Commons yesterday was Brandon Lewis, secretary of state for Northern Ireland - he of breaching international law, in a "very specific and limited" way.

Asked what recent discussions he had had "with Cabinet colleagues on the EU's approach to and future implementation of the Northern Ireland protocol", his questioners could scarcely have realised that they were in for a second dose of Brandonism, only this time without the candour.

My Cabinet colleagues and I, he said, "continue to work together closely to ensure that we meet our protocol obligations in a pragmatic and proportionate way". But, he added, "We have heard the concerns raised by people and businesses in Northern Ireland and are sensitive to the economic, societal and political realities in Northern Ireland". That is why, he continued:
…we are taking forward a series of further temporary operational steps that reflect the simple reality that more time is needed to adapt to and implement new requirements as we continue our discussions with the EU. The steps include the new operational plan for supermarkets and their suppliers, committed to at the Joint Committee. I will lay a written ministerial statement detailing the steps later today.
The written statement was not long in coming and, at least, had the merit of being mercifully short:
As part of the pragmatic and proportionate implementation of the Northern Ireland Protocol, the Government is taking several temporary operational steps to avoid disruptive cliff edges as engagement with the EU continues through the Joint Committee. These recognise that appropriate time must be provided for businesses to implement new requirements, and support the effective flow of goods between Great Britain and Northern Ireland.

For supermarkets and their suppliers, as part of the operational plan the UK committed to at the UK-EU Joint Committee on 24 February, the current Scheme for Temporary Agri-food Movements to Northern Ireland (STAMNI) will continue until 1 October. Certification requirements will then be introduced in phases alongside the roll out of the Digital Assistance Scheme.

In addition, further guidance will be provided later this week on parcel movements from Great Britain to Northern Ireland to provide necessary additional time for traders beyond 1 April. Guidance will also be set out to help address practical problems on soil attached to the movement of plants, seeds, bulbs, vegetables and agricultural machinery. And the Government will write to the Northern Ireland Executive to confirm that flexibilities within the Official Controls Regulation 2017/625 are such that no charging regime is required for agri-food goods.
The EU's response, as one might predict, was swift, coming from vice-president Maroš Šefcovic, co-chair of the EU-UK Joint Committee on the Withdrawal Agreement and of the EU-UK Partnership Council.

Equally predictably, Šefcovic expressed the EU's "strong concerns" over the UK's unilateral action, declaring that it amounted to "a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement". Furthermore, he noted, "This is the second time that the UK government is set to breach international law".

Warming to his theme, he complained that this also constituted "a clear departure from the constructive approach that has prevailed up until now". It was, he said, "undermining both the work of the Joint Committee and the mutual trust necessary for solution-oriented cooperation".

This left Šefcovic "disappointed" that the UK government has resorted to such unilateral action without informing him. Issues relating to the Protocol, he said, "should be dealt with through the structures provided for by the Withdrawal Agreement".

Then it was the turn of Simon Coveney, Irish minister for foreign affairs. In his statement, he railed against the unilateral announcement which, he said, was "deeply unhelpful to building the relationship of trust and partnership that is central to the implementation of the Protocol".

That all this has happened only days after David Frost has taken over from Michael Gove cannot be a coincidence. It was anticipated that he would take a hard line, and those expectations have not been disappointed.

Šefcovic has now talked to Frost and informed him that the European Commission "will respond to these developments in accordance with the legal means established by the Withdrawal Agreement and the Trade and Cooperation Agreement". That actually gives the Commission some options, so we will have to wait to see which path they choose.

In the interim, one must wonder at the timing of the original announcement. Choosing budget day, with media attention focussed elsewhere, was a sure way of keeping the story off the front pages, if that was the intention. But, if the British government is deliberately picking a fight with Brussels, one might have thought that it would want to maximise the publicity.

However, if the government has already committed the UK to breaching the Protocol, it hasn't finished yet. Embedded in Brandon Lewis's statement was a promise that there would be "further guidance" on the "soil attached to the movement of plants, seeds, bulbs, vegetables and agricultural machinery", in addition to which, inspection charges for goods entering Northern Ireland are to be waived.

Separate announcements to that effect can only inflame an already raw situation, provoking Brussels into a response. It seems inconceivable that the EU can take no action at all, not least because the refusal of the UK to perform border checks puts the integrity of the Single Market at risk.

Unsurprisingly, further responses, recorded by the Telegrapoh are not complimentary. Says one EU diplomat: "British diplomacy is very predictable these days: Chose confrontation. Because why on Earth would you want to respect an agreement you negotiated yourself? And why on Earth would you want to settle difficult issues in an amicable way if you can also take a confrontational approach?"

Another diplomat says: "Frost is acting as we expected. Under the agreement, a grace period can only be agreed by both sides. If it's not, it’s not a grace period but a violation of the treaty".

Given that the UK could have taken the legal step of invoking the Article 16 "safeguards", it certainly does seem as if confrontation is being actively sought. But, given that the EU is accused of bad faith, in failing to act with the "pragmatism" needed to make the Irish Protocol work, with its actions on shellfish are of dubious legality, perhaps London felt it had little option but to bring matters to a head.

Currently, though, the government is arguing that the move does not represent a breach of the protocol as it was "temporary" and "designed to deal with significant problems facing the province". The transparency of this argument cannot be calculated to smooth ruffled feathers in Brussels.

The odd thing about all of this, though, is that Johnson seems to be riding above the fray. Despite this being his own personal "oven-ready" deal, currently he is taking no flak for what is proving to be an unworkable shambles. For a prime minister, he is consuming industrial quantities of Teflon, but there must surely come a point when the mud starts to stick.

Also published on Turbulent Times.

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