If the EU is stupid enough to retaliate over the NI Protocol, it will mainly be hurting itself
Britain is in a much stronger position than when we signed the treaty – we should call Brussels’s bluff
‘We must refrain from unilateral actions that would undermine our unity and our Western partnership against Russian aggression,” said Roberta Metsola, the new president of the European Parliament. And she was spot on – though not in the way she intended.
The Maltese Christian Democrat was in Brussels opening the first meeting of the Parliamentary Partnership Assembly, which, depending on your point of view, is either a body to discuss the ongoing UK-EU relationship, or a forum for institutionalised Brit-bashing. Most delegates nodded vigorously at her implied criticism of Boris Johnson. MEPs hummed and gurgled in support. British Europhiles grinned at one another approvingly.
But the real danger to the unity of the West is not the careful removal of some pointless checks on goods moving within the United Kingdom. It is the EU’s determination to treat Britain as a wayward province rather than an ally.
There is a categorical difference between what the UK is proposing to do and what the EU is threatening in return. Whatever your view of the Protocol, no one seriously doubts that Liz Truss is trying to remedy identified problems. She wants to ease the flow of goods, and so enable the return of power-sharing at Stormont, while respecting the EU’s concerns about leakage across the border. She is, in other words, acting to alleviate harm, not to cause it.
The same, sadly, is not true of her Brussels counterparts. When the EU freezes the UK out of Horizon Europe – a programme for the funding of universities and scientific research establishments – it does so in a peevish spirit, and at some cost to itself. When it drags its feet over the electricity trading arrangements that were supposed to come into effect last month, it damages all sides, stalling the development of renewables in the North Sea and prolonging Europe’s dependence on Russian energy. When it rejects mutual recognition for conformity assessment on products, it makes everyone worse off.
You might not like the plan to disapply the most burdensome aspects of the Protocol, but you can’t seriously claim that it is motivated by animosity. The EU, by contrast, talks openly of “retaliation”, even of suspending parts of the trade agreement – actions that have no conceivable purpose beyond hurting Britain. Remind me again: who is undermining “our Western partnership against Russian aggression”?
I won’t itemise the full case against the Northern Ireland Protocol again on this page. It was an unequal treaty, signed under duress when continuity Remainers in Parliament were making it impossible for Britain to leave on better terms. No one in Brussels had thought to propose anything so absurd until 2017, when their British auxiliaries won a parliamentary majority.
The Protocol is supposed to chafe. It was designed to ensure that Britain suffered for leaving. Michel Barnier, the EU’s chief negotiator, was caught on camera telling Eurocrats that the border had to be neutralised before trade talks began, lest Ireland, which needs easy trade with the UK, held out for too liberal an overall deal.
Trade between Great Britain and Northern Ireland is equivalent to 0.0008 per cent of the EU’s GDP. Yet Brussels conducts about 20 per cent of all its goods checks on this trade. Some of the current arrangements – making people fill in forms to send a parcel to another part of the UK, for example, or making them pay to take their pets with them – are plainly meant to irritate.
So, what can Britain do about it? And how might the EU respond?
The striking thing about the Government’s approach is how conciliatory it is. The UK could simply say, “We won’t put up any infrastructure on our side of the border; what you choose to do on your side is your business.” But it is not doing that. Instead, it is going to considerable lengths to keep the border invisible on both sides.
Truss is not proposing to scrap the Protocol, but to alter parts so that it meets its own stated goals of preserving the integrity of Britain’s customs territory and upholding the Belfast Agreement. She wants a green channel for goods whose destination is local, with checks applying only to those at risk of crossing the border. She wants Northern Irish firms that do not export to be free to choose either British or EU standards. She is offering Brussels unprecedented real-time access to Britain’s customs database.
At the same time, the Foreign Secretary wants to alter the absurdly lopsided deal whereby the EU gets to set some of Northern Ireland’s taxes, and where the ultimate arbiter is the
European Court of Justice, rather than a neutral tribunal. These mechanisms could be rolled into the wider UK-EU trade deal, which was, after all, supposed to supersede the Protocol.
Having spent a year suggesting practical reforms and getting nowhere, Britain now proposes to make the changes itself, in a measured and sensitive way.
How will the EU react? Ask a Eurocrat or an MEP and you get a Lear-like response: we will do such things, what they are yet we know not, but they shall be the terrors of the Earth! Yet the EU’s legal options are more limited than many commentators realise. Article 16 specifically provides for action by one party:
“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”
Economic difficulties? The Protocol is adding perhaps £10 billion to the cost of goods crossing the Irish Sea. Societal difficulties? The basis of the Belfast Agreement was power-sharing resting on joint consent, which the Protocol is wrecking. Trade diversion? The fall in GB-NI commerce is matched by a 50 per cent increase in trade across the Irish border.
Britain, in short, is on strong legal ground – much stronger, certainly, than the EU was in January 2021, when it briefly invoked Article 16 with the specific aim of imposing an Irish border so that vaccines should not reach the UK. Eurocrats hate being reminded of that decision, and protest that it was swiftly revoked. So it was. But never again can they pretend, as they did during the talks, that their aim was to preserve stability in Ireland.
Article 16 allows them to “take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance”. But what imbalance will the EU have suffered? Even if we take seriously its claim that the single market would be imperilled by a Tesco chicken sandwich entering Donegal, why would this be any more likely than now?
The EU might, in theory, seek to scrap the entire trade deal with Britain. But this would be a decision for its national leaders, most of whom (Emmanuel Macron excepted) see it as demented to start a trade war with the EU’s biggest customer at a time when their economies are tipping into recession. It is not even clear that “trade war” is the right term, since there would be no conceivable victory for the EU, nothing that left it better off. The chief effect of putting tariffs on British goods would be to drive up prices in the EU – an odd thing to do during an inflation crisis.
Elsewhere, Eurocrats have already fired off their ammunition. Britain allows EU financial-services providers to operate here under their own regulators, but Brussels refuses to return the favour (though it grants equivalence to, among others, China). Britain lets EU nationals use its passport e-gates, but only our oldest ally, Portugal, has reciprocated. Britain led the EU’s satellite programme, but has been frozen out of it. And so on.
There might be unilateral French action, legally unrelated to the dispute in hand, but politically linked. For example, we might see a go-slow by the French officials who, under a bilateral deal, operate at Dover.
But consider the timing. Britain is doing most of the heavy lifting in assisting Ukraine – not because Russian troops threaten us, but because we are committed to Europe’s freedom and prosperity. We have just extended our nuclear guarantee to Sweden and Finland, tiding them over that dangerous moment between applying to join Nato and admission.
Yet Macron seems far keener on conciliating Russia (“We must never cede to the temptation of humiliation, nor to a spirit of revenge”) than Britain (“Nothing is negotiable, everything is applicable”).
Is it really conceivable that the EU would pick this moment to escalate its quarrels with the UK? That it would limit its trade with Britain while continuing to buy oil and gas from Russia? Surely not. For doing so would mean calculatedly ending the Western alliance.
The real danger to unity is the EU’s determination to treat Britain as a wayward province rather than an ally