by Frank Schnittger
Thu Jan 26th, 2023 at 08:48:51 PM EST
Cross-posted from Slugger O'Toole where it has topped 10,000 readers and 400 comments with many commenters saying it is one of the best opinion pieces they have ever read...
When I saw the headline to Brian Walker's piece, Rather than keep slagging off the DUP over the Protocol, let's recognise their better points, I expected to see a forensic analysis of the DUP's 7 tests for determining whether the Protocol had been adequately reformed to meet their requirements for re-entering the devolved institutions in Northern Ireland (NI).
I was looking forward to seeing what elements might be extracted from them that could be congruent with the EU and its legal and political obligations towards its member states. I was hoping for an exploration of any potential common ground that might lead to a settlement.
Instead, what we got was an expression of shared fury with the DUP, and a reduction of the Protocol to identity politics embellished by a gratuitous sideswipe impugning the EU Commission. I was moved to respond as follows:
People seem to forget that the Protocol is part of the Brexit which was imposed on NI despite 56% voting to remain. Where was the concern for cross community consent then?
As referendums are advisory under the UK constitution, there was nothing to prevent the UK pursuing different arrangements for NI, or indeed Scotland for that matter.
But the DUP blocked softer forms of Brexit which would not have given rise to the need for a Protocol because they wanted to undermine the Belfast/Good Friday Agreement (BGFA) and re-institute a hard border on the island of Ireland.
The other thing people forget is that the Assembly has the power to vote on the continuance of the protocol on a regular basis, so it is not lacking in democratic legitimacy in NI.
The DUP are blocking the Assembly because they are afraid of losing that vote, just as they are blocking the Executive because they don't want to serve with a SF First Minister.
Essentially the DUP want a unilateral veto on the protocol as a precursor to seeking the same on a border poll. They claim it is a constitutional issue and yet the BGFA provides for a 50%+1 vote, not cross community consent, on the constitutional issue.
Lastly, and laughably, this whole discussion is taking place as if it's all about the DUP. It's not. It's about the UK and the EU having agreed a solemn treaty also ratified by 28 governments, 29 parliaments, and the UK electorate in a general election called over Boris Johnson's oven ready deal.
Furthermore, it's about the technicalities of customs arrangements which require constant review by customs experts in response to regulatory divergence, risk assessments, intelligence reports, and discoveries of contraband produce within the single market.
Apparently 27 countries are supposed to put the integrity of their Single market, their standards, their consumers, and their own industries at risk, so that the DUP can save face.
And thanks for the compliment that "The Commission is a minimally accountable behemoth". The UK is no longer qualified to give an opinion on that. In fact, the Commission fulfilled the negotiating mandate it was given, and which had been unanimously approved by the member states. (It also happens to have less staff than an average English City Council).
It will be a long time before we take advice on democracy from a country with an unelected head of state; an unwritten constitution which means whatever the establishment want it to mean at any given time, and which the electorate cannot change; an unelected Chamber of Parliament some of whose members bribed their way into those positions; an Established religion for a privileged few; an electoral system which encourages polarisation and produces wildly skewed results; and a "free press" owned by a few non-dom billionaires who blatantly pursue their own interests at the expense of everyone else.
The BGFA makes no provision for "Direct Rule". It is never mentioned in the text.
It is however a solemn international Treaty which the DUP has refused to implement. Not only strand 1 - the Assembly and Executive - but strand 2 - the north south institutions, in defiance of a High Court finding that they were legally obliged to implement same.
The Irish people changed their constitution in a referendum in order to support and implement the BGFA. If unionists are not going to uphold their end of the bargain, the UK is technically in breach of that international agreement.
The EU should implement trade sanctions against the UK until such time as it is fully in compliance with the BGFA and the Withdrawal Agreement.
Rewarding intransigence by the DUP is the road to more intransigence.
Let's stop this self-indulgent, narcissistic, inward looking, other worldly, counter factual, mollycoddling of people who never supported the BGFA in the first place and show them the consequences of breaking international law.
Once the UK is in full compliance, we can discuss the finer details of how to tweak the implementation of the protocol for the convenience of all concerned without putting the integrity of the single market at risk.
All else is waffle.
I apologise if the above comes across as intolerant or intemperate, but unionists aren't the only people who are furious. Somehow it doesn't seem to matter that the Irish people changed some of the fundamental tenets of their constitution (Articles 2 and 3) to accommodate unionist sensitivities and to make the BGFA possible.
Many people, including soldiers and police, lost their lives and huge resources were expended helping to end the IRA campaign. Sinn Fein were censored at a time when they could speak freely in the north. My brother was very nearly caught in the Dublin bomb carnage on a day 33 civilians were killed and 300 injured. Responsibility was claimed by the UVF which had just been legalised by the British government and and there is considerable evidence they acted with active British security forces support.
The Irish government were blue in the face warning that a hard Brexit had the potential to upend the BGFA, and they were frankly laughed at. Brexit was none of their business. Yet to be invented technology would solve all problems. It would be easy to divide and conquer the EU and isolate the Irish. The Irish could always be starved into submission. The German car industry would tell Merkel what to do, and she really ran the EU. The TCA would be the easiest trade deal in history because the EU needed the UK more than the UK need the EU.
But somehow the "minimally accountable behemoth" that is the European Commission took Ireland's concerns on board, and 27 member states unanimously backed its negotiating mandate which included a requirement that the Irish land boarder be kept open. All they asked was that the integrity of the Single Market would not be compromised. The European Commission even insisted it wouldn't begin to negotiate the Trade and Cooperation Agreement (TCA) with the UK until the Withdrawal Agreement containing the protocol was signed, sealed and delivered.
But now that the TCA (and Irish constitutional changes) have been safely trousered, it seems that its open season for treating Ireland and the EU with contempt again. Apparently, the EU is being inflexible for wanting international law to be honoured. The Northern Ireland Protocol Bill proposes to flagrantly break the Withdrawal Agreement. The Retained EU Law (Revocation and Reform) Bill (REUL) proposes to dis-apply over 4,000 pieces of legislation, many introduced at the behest of the UK, without even considering what the impact of their dis-application will be.
And all in an attempt to show that Brexit has benefits when none seem apparent. Just wait for the howls of anger and outrage when UK goods are stopped at Single Market borders because no one knows what standards they have been produced to and whether the UK regulatory agencies even know what they are supposed to be doing.
I was going to devote this post to analysing the DUP's seven tests for determining whether they will accept the Protocol and return to implementing the BGFA. But frankly, I may as well analyse them in terms of the seven deadly sins of pride, greed, wrath, envy, lust, gluttony and sloth. Most relate to matters that are properly the concern of the British Government, and the EU would be accused of interfering in the internal affairs of the UK if it even discussed them. It is not the responsibility of the EU to deliver on the various contradictory promises Boris Johnson or his ministers made at various stages.
From an Irish point of view, the main benefits of the BGFA are that it enabled relative peace on the island and encouraged closer economic, social, and political cooperation throughout the island across an open border. We are not going to compromise on those gains.
We full respect the EU's concerns that Northern Ireland should not become a back door through which GB goods, or third party goods transiting from GB, can enter the Single market bypassing customs controls at Rotterdam or anywhere else. That becomes ever more vital as the regulatory regimes of the UK and EU diverge. Any concessions the EU make for Larne will have to be made for Rotterdam as well. Any concessions they make for Great Britain, will have to be made for all other trading partners under WTO `most favoured Nation' rules.
If a choice has to be made between our obligations to our EU partners, and the continuation of devolved government institutions in their current form in Northern Ireland, we will choose the EU.
However, the UK is under a legal obligation to operate the institutions of the BGFA, and direct rule doesn't meet that obligation. If the UK allows the DUP to stand in the way of the UK meeting its international obligations, there will be a price to be paid, and that price will be paid by the whole of the UK.
From an EU perspective, the protocol is about implementing the sort of customs procedures you get at Rotterdam or any other point of entry into the Single Market. It's about the technicalities of customs arrangements which require constant review by customs experts in response to regulatory divergence, risk assessments, intelligence reports, and discoveries of contraband produce within the single market.
It involves the occasional random or intelligence led check on a vehicle carrying goods deemed to be at high risk of smuggling or which could be damaging to EU consumers - hormone treated beef, anti-biotic resistant meat, chlorinated chicken, unapproved drugs, carcinogenic compounds, weapons, blood diamonds or goods from suppliers with a track record of poor compliance with regulations.
Now everyone's a customs expert and people who have apparently never read the Protocol or the Commission's October 2022 or June 2022 proposals for detailed operational procedures are furiously declaiming it as an identity politics issue. And all because the DUP needed some political cover for the consequences of their support for a particularly hard form of Brexit. They made it an identity politics issue so they could blame others for the consequences of their own actions, and anyone who accepts that re-definition is batting for the DUP on their terms.
If the Assembly wants to have a greater role supervising those arrangements, that is ultimately a matter for the UK government. All the EU will require is that those arrangements work in practice and that there are effective procedures in place to remedy situations where contraband goods do end up in the Single Market - as will inevitably arise. It need not be any more `political' than that.
If the DUP want to make a political song and dance about it, that is their privilege. The UK government, on the other hand, don't get to pick and choose which international laws they abide. Ireland makes absolutely no apology for pursuing its national interest in peace and prosperity on this island. If other people have other ideas, be it on their heads.
There may be some hurt pride to be salved. The DUP may have become a little greedy when they held the balance of power in Westminster. There is certainly plenty of wrath about. Perhaps also a little envy as Ireland powers ahead. Boris Johnson's lust for power at all costs is well documented. There was certainly gluttony when holding Downing Street parties during lockdown. And the sloth exhibited during the Brexit negotiations when the UK negotiating team frequently turned up without any preparatory papers, and now with the proposed bonfire of regulations without examining their purpose or effects, is truly astonishing.
What is perhaps lacking is a little honesty and humility. We all make mistakes. It's time to move on. The commission hasn't even asked for a mandate from the member states to renegotiate the protocol. They would certainly be refused one If they asked. For better or worse, Brexit has been Done. It won't be undone for at least a generation, if ever.
Some elements of the Tory party may feel they benefit from continued tensions between the UK and EU, and the DUP have no interest in better relations with anyone on this island but themselves. Ireland and the EU have no interest in poor relations whatsoever. And neither has the UK if it wants better relations with the EU, the USA and the rest of the world, a world that relies on a rules based international order to maintain peace and prosperity.
Some elements of the Tory party may feel they benefit from continued tensions between the UK and EU, and the DUP have no interest in better relations with anyone on this island but themselves. Ireland and the EU have no interest in poor relations whatsoever. And neither has the UK, if it wants better relations with the EU, the USA and the rest of the world, a world which relies on a rules based international order to maintain peace and prosperity.
Imperial powers get to break laws with impunity within their empires. Those days are gone within Europe. Ask Vladimir Putin. And those who would stoke ethnic or sectarian tensions for their own nefarious ends are the enemy we all need to face down, not mollycoddle.