The Sunday Telegraph

The Protocol is not set in stone – what we need is compromise

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According to some parts of the press, the Prime Minister is between the devil and the deep blue sea on the matter of the Northern Ireland Protocol. It is assumed that he must choose between a trade war with the EU if he abandons it, or the end of the Good Friday Agreement (GFA) if he retains it. This is a hugely mistaken analysis that has informed the flawed and sometimes deceptive briefing that has taken place in Washington to members of Congress.

How did we get here? Let’s remember that Boris Johnson inherited Parliament’s Brexit mess when he became Prime Minister. Then-speaker John Bercow, and other hardcore opponents of Brexit, were intent on carrying out what was, in effect, a coup d’état against the British people and their democratic decision.

Their efforts culminated in the passing of the Benn Act which ostensibly tried to prevent a no-deal Brexit but was, in fact, intended to block any Brexit at all, a situation only resolved by electoral victory in December 2019. By this time, a revised Protocol had been agreed, though it still contained incongruit­ies. Many MPs were unaware of the details.

Yet the Protocol is not set in stone. It contains powers for the Joint Committee to amend the agreement. It also contains a mutual commitment to avoid “controls at the ports and airports of Northern Ireland to the extent possible” and the possibilit­y of replacing the protocol itself by agreement under article 13.8.

There was never any need, in terms of trade or trade law, to have what came to be known as “a hard border” between Northern Ireland and the

Irish Republic. Many of us who were Brexiteers in Theresa May’s cabinet believed that the developmen­t of “maximum facilitati­on”, using the latest technology, could deal with the technical trade questions. After all, only 0.2 per cent of EU trade was exported from NI to the Republic and divergence was not a problem, as the UK was using the same standards as it had during EU membership. Nonetheles­s, we were obstructed and undermined by anti-Brexit elements of the civil service at every turn.

This is particular­ly appalling as neither the UK Government nor the Irish government wanted to see border controls. The EU, however, believed that they could use the threat of the destructio­n of the GFA to force the hand of both. The Commission believed that keeping NI within the EU orbit would punish the UK for Brexit and perhaps even lay the ground for a return later on. But the Protocol’s hybridity has turned out to be its very weakness, trying to put Northern Ireland, part of the UK’s customs area, within that of the EU.

So, what are the practical alternativ­es? In the absence of willingnes­s to develop concepts of maximum facilitati­on, an attractive solution would be the concept of “mutual enforcemen­t” set out by Lord Trimble, one of the GFA’s architects. He and his colleagues at the Centre for Brexit Policy suggested each side make a reciprocal legal agreement to enforce each other’s rules on trade. It would be an offence in UK law to export goods from Northern Ireland to the Republic that did not conform to EU rules, and vice versa. Punitive penalties would operate both ways as a disincenti­ve to rogue traders, while necessary checks would be made at company premises and in company records rather than at a physical border. This can still be made to work if both parties are willing to do so.

The Protocol is unacceptab­le because it leaves Northern Ireland’s people as second-class citizens, breaching the terms of the act of Union, which guaranteed their equal treatment. Far from being a belligeren­t character, the PM has been notable in trying to keep the temperatur­e down on the issue. With goodwill on both sides, the flexibilit­y to renegotiat­e the Protocol, contained within it, could be used to defuse the current tensions. There is a choice of whether to seek compromise or confrontat­ion. History will be a harsh judge of the wrong decision.

There are solutions to the issue of the trade border – but we need goodwill on both sides

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