By Barrister Steven Barrett.
Rishi Sunak’s ‘deal’ on the Northern Ireland Protocol is finally out.
My first impression is that it is no ‘deal’ at all: the version of the text published by the government is a document with no legal effect that is possible to enforce. It’s a wish list of vague commitments.
The document is patronising in places: it refers to ‘saving money on a pint of beer, buying Cumberland sausages in a supermarket or visiting a garden centre for seeds and plants’. But there are also deeper concerns. Take paragraph 52:
‘We also recognise, as we have done since 2020, that the Government needs to ensure that we monitor and tackle risks of regulatory divergence within the UK internal market‘
The chance that the UK might, at some point, have different laws from the EU is described as a ‘risk’. It focuses here on internal divergence; but divergence internally only happens if we diverge from the EU – do you see how that works? This is the idea that the UK might diverge from the EU and pass a law that is better than one passed by them. Given that Brussels rolled back animal welfare standards, put in place to stop mad cow disease, is that so hard to imagine?
EU laws will continue to apply in Northern Ireland.
This fear amounts to the opposite of sovereignty or independence from EU law. It is what the EU has demanded since the referendum: ‘Sure, leave (after you pay us), then do as we say,’ it effectively says. Now we appear to be falling into line.
But perhaps the most worrying part of this ‘framework’ is the difference between the EU text and the UK version. The latter is a soup of words. Indeed, anyone interested in knowing what the EU has done – and what our government has agreed – is far better placed reading the EU text. Here we find the truth about the ‘deal’:
‘The envisaged amendment does not amount to a change of the essential elements of the Withdrawal Agreement’
Why are UK readers not told the same? It makes you wonder whether the EU has put out the real law, while Brits are being given a fluffy document to read.
Perhaps the most worrying part of this ‘framework’ is the difference between the EU text and the UK version.
The reality is that, for all the publicity surrounding this week’s ‘launch’, the EU has not given much away. The Northern Ireland Protocol – which the UK Supreme Court ruled is subjugating the union and Northern Ireland’s place in it (paragraph 68) – is going nowhere.
What this agreement means then is that the EU will effectively run Northern Ireland, and the UK can have a voice on the Joint Committee that will do the actual work of running Northern Ireland. But only if the rest of the UK also does as it is told and does not diverge from EU law.
EU laws will continue to apply in Northern Ireland. EU requirements for animal health and plant health remain fully in place, including the animal feed laws I wrote about two years ago. There is still going to be a border in the Irish Sea. Retail goods will be checked at 10 per cent rate dropping to 5 per cent by 2025 with additional checks at the EU’s whim.
You may have heard of a ‘Stormont Brake’ – which purports to allow Northern Ireland to say no to a specific EU law (remember the EU makes hundreds every year). It is a complete fantasy. Exposed, to his eternal credit, very quickly by an accountant called Peter Donaghy as completely unworkable. There’s almost no circumstance in which its high bar is met, something which the EU itself admits:
‘That mechanism could be triggered, in the most exceptional circumstances and as a last resort.’
In the extremely rare event the Brake is ever used, the UK will end up compensating the EU in huge sums for perceived harm to markets. Why? Because the deal lets the EU submit a claim for loss caused by the Break. What checks are there to make sure the EU doesn’t produce its own sums? It is not clear.
In the extremely rare event the Brake is ever used, the UK will end up compensating the EU in huge sums for perceived harm to markets.
And the European Court of Justice is still there, too. Northern Ireland is still under EU rule – but no one need notice this if the whole of the UK agrees to their regulations. Time after time that seems to be the real purpose of the EU’s negotiations with the UK: it has given itself mechanisms (such as the trusted trader scheme it controls) to punish the UK if we dare to self-govern. VAT laws on a variety of products, for example, must match the EU – no competition allowed.
There are two takeaways from reading the deal. Firstly, that the EU were terrified of Boris Johnson’s Northern Ireland Protocol Bill and were determined to stop it. Secondly, that the EU is obsessed with stopping the UK from diverging from EU laws because it fears that the UK might just be successful on its own.
The EU were terrified of Boris Johnson’s Northern Ireland Protocol Bill and were determined to stop it.
The EU has written this agreement in order to ensure that the whole of the UK follows EU law. They might (they only said might) be kind enough to let a ham sandwich travel from Liverpool to Belfast unhindered if we all agree to do what they say (and put a humiliating label on it). But it looks very much like they turned up to our government with a pre-written deal and told us to like it or lump it – and then sold it to the public at all costs (remember, we haven’t even had time to draft our mirror laws yet.)
Yet if the deal passes the EU has countless levers to control the UK – no government of any kind will be able to upset it. The EU will effectively call the shots.
The role of the UK government in this looks like pure window dressing. That is presumably why we got the fancy graphic and folksy text, rather than any real law. This deal is dynamic alignment with a fresh coat of paint.
The UK itself is now under the EU’s control.
Steven Barrett is a leading barrister at Radcliffe Chambers who read law at Oxford and taught law at Cambridge.
This article first appeared in the Spectator on 28th February 2023.
Photo: Prime Minister Rishi Sunak at the joint press conference this week with the President of the European Commission Ursula von der Leyen in Windsor Guildhall. Picture by Simon Walker / No 10 Downing Street. Photo licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic License.