THE RECENT UNILATERAL British decision on the Brexit Northern Ireland Protocol was, without any doubt, a further breach of the spirit of a binding international agreement.
Whether it was also a breach of international law will only be formally determined when the legal proceedings being taken by the European Commission reach their conclusion.
However, many reasonable people may already take the view that the main lesson the Johnson Government learned from its similar stunt last autumn is not to announce publicly in the House of Commons that it intends to break the law.
The EU, reflecting its own unqualified attachment to the rule of law, is challenging by legal means what it considers to be a serious breach of the law.
Different approaches
This is the right approach but will necessarily take some time. Therefore, it may be more practical to focus for now on the breach of the spirit of the Protocol which is immediate and unquestionable.
To recognise the disturbing breach of that spirit, one need only glance at the sensible shared work that the British and European negotiators, Michael Gove and Maroš Šefčovič, had been taking forward to implement the Protocol.
On 11 February they issued a joint statement committing both sides to intensify their work on the Protocol in order to address all outstanding issues and find workable solutions.
Following a further meeting on 24 February, they took note of the progress being made and “acknowledged the importance of joint action to make the Protocol work for the benefit of everyone in Northern Ireland”.
A mere week later, Gove’s replacement, David Frost, came blundering into the china shop with all his trademark subtlety and announced that the UK would now, out of the blue, act unilaterally on some of the issues that were being discussed jointly and could have been resolved amicably and sensibly.
This breach of the spirit of the Protocol, and inevitably of trust, has six inevitable and predictable consequences.
First, it makes the work of the various UK/EU joint committees, relating both to Northern Ireland and other issues, more difficult to take forward. It is hard to play marbles with someone who threatens at every moment to pick up his marbles and go home. If someone’s word is not consistently their bond, the value of that word is diminished.
If the EU had similarly breached the spirit of the shared work on implementing the Protocol, the British response would have been nothing like as measured as that of the calm and admirable Šefčovič. Despite the provocation, the EU will continue to try to keep the work as close to on track as possible.
More delays
Second, the date for ratification of the overall EU/UK Brexit trade deal is now in doubt. Even though that deal reflects the UK’s disappointing level of ambition for the future relationship, it remains far better for both sides than “no deal”.
The European Parliament is in effect being asked to sign off on another deal with a negotiating partner that has chosen to place a further question mark over its commitment to an earlier deal. I nevertheless hope and expect that the Parliament will in due course ratify the deal.
Third, there are many areas, beyond the Brexit trade deal itself, in which the future EU/UK relationship still needs to be thrashed out and in relation to which mutual trust is essential.
For example, the Governor of the Bank of England, Andrew Bailey, has criticised the EU for its reluctance to grant “equivalence” to UK financial services, even describing the EU approach as of “dubious legality”. It is surely clear that Bailey’s first port of call in pursuing his not unreasonable objectives should be Downing Street rather than the Berlaymont.
Fourth, in riding rough-shod over the ongoing procedures under the Protocol, disrespect is being shown not just to the European Commission, which plays well in the British tabloids, but to 27 sovereign democratic countries, including Ireland.
The Irish Government and, I believe, the vast majority of people across the British administration will continue to work sincerely to nurture Irish/British relations in the post-Brexit world. But many, on both sides of the Irish Sea, will also recognise that Frost’s impulsive swagger is an impediment.
Needless to say, the ultimate responsibility for his behaviour lies at a higher level.
Special relationship
Fifth, with utter predictability, the move has drawn the Biden administration back into the debate. The UK has said that its recent action is strictly temporary. If it turns out not to be, or if it drags on indefinitely, or if it is followed by further challenges to the Protocol, the US Government will weigh in.
Of course, the UK’s approach to an international agreement that it has signed and ratified will also be noted with relish by malign actors further afield.
Finally, the EU shares the UK’s aim of responding to concerns in Northern Ireland about the implementation of Protocol, by applying the maximum degree of flexibility compatible with its effective implementation.
However, any hint that implementation is entirely in British hands, or that timelines are infinitely flexible, will not encourage the necessary acceptance by critics in Northern Ireland that the Protocol is a balanced, irreversible, legally-binding international commitment.
Bobby McDonagh is former Irish Ambassador to the EU, UK and Italy. He is an executive coach and commentator on subjects around EU and Brexit.
To embed this post, copy the code below on your site
have your say