The offer by the EU to significantly reduce checks on goods, especially food, on the Irish Sea border, and the promise to legislate for British authorisation of medicines supplied into NI and therefore the Single Market, takes away the salience of complaints of barriers to the supply of goods from Britain into Northern Ireland. The solution of the medicines issue was promised long ago and the EU was never going to allow itself to be held up to criticism for preventing the supply of medicines, including cancer treatments, to NI. The non-issue of British sausages that was already hardly alive was killed once again by the EU breaking with its policy on chilled meats entering the Single Market.
This does not mean that these issues are solved. One reason that the existing border checks did not work was because the British and Unionist minister at Stormont made sure that they didn’t. The scope, or motivation, for a repeat approach by the British in the enforcement of the compensating mechanisms proposed by the EU for the abandonment of checks at the sea border remain to be seen.
Instead, the question of the role of the EU’s European Court of Justice (ECJ) has been held aloft by the British as the key requirement in negotiation of a new Protocol. Of course, the unionists don’t want any Protocol but that could only be the outcome if the UK and EU entered a trade war that none would benefit from, especially the British. The unionists aren’t worth that price for the British so they will just have to sell as a victory whatever Johnson and Frost agree to in the end.
However, if both the British and unionists wanted to declare victory now is the time to do it. The EU declared it would not negotiate and it has; its restrictions on food imports and requirement for authorisation within the EU for medicines circulating within it are important elements of its Single Market but have been given up in this case (the former to an extent). It can bypass them only because it believes it can contain these concessions within the Protocol, that is within its arrangements for the North of Ireland. It obviously takes the view that there will be no leakage into any other trading relationship and no precedent set that could be exploited by other trading partners.
Both the British and unionists could therefore claim that not only has it forced the EU to negotiate the Protocol, which it still denies, but that they have compelled the EU to surrender much of what it said it could not do. It has political coverage for this not only for the reasons just set out but also because for its Irish member state and for Northern nationalists what matters is that there is no Single Market land border down the middle of the country. As long as the checks along the Irish sea are held to be working, they are happy.
But this will remain an issue. The more the British depart from EU regulation, the greater the scope for unapproved goods to circulate into the Single Market and therefore greater risk to the integrity of it. The compensating proposals from the EU would therefore have to have meaningful effect and will grow in impact as Britain diverges from EU requirements, whether arising from its own decisions or from those of changed EU rules.
This is not the declared reason for the new prominence of the ECJ in British demands. Instead, it is what a NI business representative called “nothing but a Brexit purity issue.” For him the ECJ “it is not a practical or business issue.” In fact, for business the Protocol gives unique access to both the UK and EU markets. Were the British market certain to continue to be the much more lucrative and important the unionists would have little to fear from this parallel opportunity. However, the growing trade between North and South and the reduced trade between the Irish State and Britain means that their opposition to the Protocol on political grounds is justified even if nationalists deny it. Unfortunately for unionist leaders this political opposition is detrimental to the people they represent, which will not have short term importance but will in the long term.
The unionist commentator Newton Emerson has argued that Irish and EU complaints about British negotiating tactics are a ‘slight loss of perspective’ and that their annoyance is mistaken. In effect, both sides are at it and it’s a case of ‘all is fair in love and war’ . . . and trade negotiations. He is however wrong to say that “the fact that Frost is tearing up his own deal is a redundant complaint. The protocol is being negotiated.” It matters that the negotiations that are now being conducted are not a first stab at an agreement but follow bad faith negotiations by the British who never intended to implement the deal they signed.
It matters because all the arguments made by Emerson about the ECJ not being necessary for Single Market governance must face up to this. It is not a matter of whether the NI Protocol can be made amenable to Swiss type arrangements or those governing EU relations with Norway, Iceland and Lichtenstein, which insert arrangements that put ECJ competence at a greater distance.
Why would the EU agree to Swiss governance arrangements when the British have just rejected Swiss trading arrangements? Why would they seek to introduce arrangements involving numerous bilateral treaties that they already find too onerous and have sought to dispense with? Why would they seek the governance arrangements applied with Norway etc. when the British specifically rejected the EEA option as the form of Brexit they should seek? Part of the reason why the EU will not want to agree is that the British cannot be trusted.
If Emerson wants to critique the statements of Irish politicians in relation to the British approach to negotiations he would be better to start with Varadkar’s nonsense that “for decades, for centuries, British people in many ways were renowned by the fact that they were an honourable people; people whose word you could trust . . .“ And by “people” it should be understood to mean the British state.
Has he not heard of Perfidious Albion? Has he no knowledge of the Anglo-Irish treaty, with its Boundary Commission, or the promise by the British king in 1921 that the new Northern Ireland parliament would be “an instrument of happiness and good government for all parts of the community . . .’?
The British may reject the mitigations of border checks and alternative arrangements and may demand removal of any role for the ECJ. If they do, they may proceed with Article 16, which will lead to further negotiations but also opens up the possibility of retaliatory measures against them by the EU. Tory Brexiteers are still bloviating about the EU needing Britain more than the Brits need the EU but only the blinkered continue to entertain such nonsense.
It is reported that Article 16 may be triggered by the British on narrow grounds that may avoid a fuller EU retaliatory response but we would have to see what such narrow grounds might be and the EU has indicated it is weary of British negotiating tactics.
Even if the EU were to agree to some intervening body between the operation of the Protocol and adjudication by the ECJ, this would not essentially change the fact that there would be a Protocol that would involve a trade border between NI and GB and none between the North and South of Ireland. It would not change Northern Ireland membership of both the UK and EU markets or the economic dynamics released by this arrangement. It would not put to bed the problems that will arise if the British decide to increasingly diverge from EU rules. It would not change the enforcement mechanisms ultimately available under the Protocol or wider Trade and Cooperation Agreement and it would not change the power imbalance between the UK and EU.
The attitude socialists should take to all of this should follow from their opposition to the whole reactionary Brexit project, which seeks to reverse the internationalisation of capitalism and the long-achieved broaching of nation state constraints on the productive forces. Such an international development of capitalism is precisely the material basis for socialism and the unity of the working class irrespective of nationality.
Some on the left have opposed Brexit only by registering its English nationalist clothes and necessarily xenophobic and racist expression, without appreciation of this more fundamental basis. For some, not even this has dawned on them and they have supported Brexit without being able to demonstrate that it has led to any compensating advance by the working class.
Just as nationalism feeds off other nationalisms so the Brexit war of words has involved Priti Patel advocating the threat to Ireland of food shortages from a no-deal Brexit and the French threatening to deny power supplies to the Channel Islands. Socialists must oppose all such offensive nationalist threats. Opposition to Brexit does not mean defence of the policies of the EU but simply recognition that we do not oppose the development of capitalism by demanding it regress to a more primitive form less suited to creation of a new society.
In terms of the Protocol, we oppose the creation of a land border in Ireland as a strengthening of division on the island and recognise that this could only come about from increasing the separation of Britain from the EU, most likely from acrimonious conflict that would have the effect of dividing workers, and not only in Ireland.
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