The protocol must work, not work to rule

What with it being August, and what with the humiliation of the US in Afghanistan, you have not heard much about the Northern Irish Protocol recently. That is about to change.

Despite the Afghan fiasco, the Biden administration has found time to deliver two “demarches” to the British Government. It accuses Britain of not abiding by the protocol properly. As a guarantor of the Good Friday Agreement (GFA), America claims the right to interfere.

Last week, the French president, Emmanuel Macron, was in Dublin. He told the Irish they must get rid of the low corporation tax rate which has done so much for the Republic’s economy. “I’m not one to put pressure on my friend… But…”, was how he silkily put it.

He sought to reassure Ireland that, on the Northern Irish Protocol, “we will never let you down”.

Like the attempt to raise and equalise the corporation tax rate – an idea led by President Biden – these interventions on the protocol are injurious to Ireland: they make trade so sticky. They are harmful to the consent in Northern Ireland on which the GFA insisted to ensure peace.

The protocol, in parts, does not work. Its processes are absurdly cumbersome. Take the issue of which goods entering Northern Ireland might be “at risk” of entering the Republic. HMRC is seeking to reverse the burden of proof so that it would be assumed, unless there were reason to the contrary, that the goods would not go south. No, says, the EU: everything must be checked. It takes 400,000 customs declarations to produce £1.5 million of revenue in duty, a crazy amount of work for such a puny result. Britain’s Trader Support Scheme, which holds the hand of British companies as they struggle through the maze, costs £250 million a year.

There is also a massive task for Royal Mail, which has to scrutinise all parcels destined for Northern Ireland to work out whether they need declarations of goods worth more than £150. It is the United Kingdom, not the EU or the Republic, that bears the burden and most of the costs.

Currently the new systems can be made to work only by temporary “easements”. Some of these end in September, some in October. Our Government wants their extension agreed; but if there is no agreement, it says it will have to extend them anyway to ensure the flow of goods. This could lead to the suspension of the protocol. Trouble looms.

The obvious weakness in Britain’s position is that we agreed the protocol. Deferring to the erroneous idea that any sort of border on the island of Ireland is contrary to the GFA (and failing to drive home that it was the EU, not Britain, that insisted on such a border unless a deal were reached), we signed. Our excuse – politically understandable – was that we must get Brexit done. The price was dangerously high.

The Government could do much more, however, to make the argument from reality. Any agreement has to operate in practice; all agreements need tweaking in the light of that fact. Not for nothing is a “work to rule” a traditionally obstructive trade-union device in disputes with employers, rather than the normal state of affairs. The protocol is dysfunctional at present: it is the duty of both sides to make it function – rules that work, rather than a work to rule.

The fact that Britain is failing to get its message across suggests that government is not coordinated. Lord Frost’s toughness in negotiation needs the support of colleagues. Mr Biden’s hereditary closeness to Irish nationalism is well known, and it is said that the US secretary of state, Anthony Blinken, is a keen francophile. All the more reason for our Foreign Office officials to be working hard to persuade, yet I gather that our able ambassador in Washington, Dame Karen Pierce, has yet to receive instructions on the issue from her boss, Dominic Raab.

Dame Karen is married, as it happens, to Charles Roxburgh, the second permanent secretary of the Treasury. Perhaps this powerful household should make their own trans-departmental demarche to HMG to get started.

Hartley Shawcross was the chief British prosecutor at the Nuremburg trials. His opening and closing speeches were famous, the latter especially powerful. In her book about the trial, Rebecca West wrote that Shawcross’s words were “full of a living pity, which gave the men in the box their worst hour”.

In the BBC’S current radio “docudrama” on the trials, the playwright Jonathan Myerson cuts Shawcross out of the story and has his deputy, David Maxwell Fyfe, deliver the famous orations. Maxwell Fyfe certainly played an important part, skewering Goering in his crossexamination, but he simply did not make those two great speeches. Shawcross did.

Myerson pleads the need for dramatic unity, having decided to make Maxwell Fyfe, who did most of the wider Nuremburg work, the lawyer-hero. The result is supposed to be history for a younger generation, but it is not historical. It is almost as if a drama about Britain in 1940 took it upon itself to steal the “We shall fight them on the beaches” speech from Churchill, and have it delivered by his deputy, Clement Attlee.

By the way, you can listen to Shawcross’s actual closing speech on Youtube. It is much more dramatic than any radio play.