It is simply wrong for the belligerent and antagonistic EU to referee the Protocol
The EU’s ambassador to London gave the game away in a Telegraph interview on Friday. “The European Court of Justice needs to be the ultimate jurisdiction, there is no way around that,” said João Vale de Almeida. “You have to understand that when you play football, you need the referee; the referee of the single market is the European Court of Justice.”
Hmmm. When you play football, the referee is not meant to double up as one of the team captains. What the EU is insisting on here is something utterly outrageous, namely that a bilateral accord should be arbitrated by one of the two signatories.
There are several problems with Mr Vale de Almeida’s claim that ECJ control is needed so that Northern Ireland can participate in the single market. For one thing, Northern Ireland’s prosperity depends primarily on its participation in the British single market: it sells nearly twice as much to Great Britain as it does to the Republic of Ireland and the other 26 EU states combined. For another, even if this were to cease to be true, it would hardly be for Brussels to tell Ulster where its interests lay.
But the most obvious objection to the ambassador’s assertion is that it is untrue. The three EEA states, Norway, Iceland and Liechtenstein, are fully within the single market, but they have never accepted ECJ jurisdiction, relying instead on a two-pillar system where the ECJ and the EFTA Court operate in parallel. Switzerland, which as a partial member of the single market is perhaps a closer parallel, had similar arrangements.
This is not really about practicalities. It is about preserving the amour propre of the former ruling power. Brussels is, in psychological terms, where Westminster was 100 years ago. In 1921, when 26 Irish counties broke away, Britain at first struggled to let go emotionally. It recognised Irish independence but demanded, in return, some residual symbols of suzerainty, including an oath of allegiance to the Crown.
Ireland, to extend the analogy, was where Britain is now. Having accepted the 1921 treaty under duress, it promptly set about removing these symbols, breaking its constitutional links with London, declaring itself a republic and leaving the Commonwealth.
Pointing out these parallels drives a certain kind of Irish republican into paroxysms of fury. How dare I compare nasty Brexit to Ireland’s noble struggle for self-government?
What a typical Little Englander! (Seriously, guys, do you think “Daniel Hannan” is some old Devon name? Not being English by birth or ancestry, I am often struck by how commonly the word is deployed as an insult – something few other nationalities have to put up with.)
George Orwell wrote that no nationalist can ever acknowledge the equivalence of anyone else’s nationalism. While the two situations are not identical, they are analogous. In both cases, most people felt a national identity that they did not share with the rest of the political union. In both cases, there was a dissenting minority (though many Irish Remainers were forced out after 1921). In both cases, the former power was stung by the rejection – though, it must be said, Britain eventually adapted to the new reality and accepted Irish independence with an equanimity that Brussels has not yet managed to find over Brexit.
We now see, with all the barnacles
and encrustations scraped away, what the row has been about all along, namely sovereignty. The EU has, for the first time, displayed some tactical nous. By apparently moving on several of the practical issues where it had previously been truculent, it has created the impression of compromise. In fact, its proposals on form-filling are less significant than the hype suggests. Most of them, when examined in detail, amount to a promise to look at possible solutions if Britain does X and Y – the main exception being on medical supplies, where there is a genuine shift.
Still, in PR terms, Brussels has played a blinder. Its declared readiness to be practical about sausages, pet passports and the like now looks like a concession rather than the abandonment of an indefensible position. This has served to distract attention from what was always the real issue, namely whether part of the UK should be governed by foreigners.
It can’t be stressed too often that this was what Brexit was all about. Leavers resented being under the jurisdiction of an overseas court. Remainers, though they publicly scorned concerns about sovereignty as some kind of 19th-century hang-up, were every bit as hardline when it came to defending the prerogatives of the EU institutions.
The institution that mattered most to both sides was the ECJ. It mattered because it was an actor rather than an impartial arbitrator.
Its judges are not required to have spent a single day on the bench in their home countries, and many are former politicians or federalist academics. The ECJ has repeatedly disregarded what the law says in favour of what it thinks the law ought to say. On issues ranging from welfare entitlements to employment rights, it has bent the rules – always in the direction of deeper integration.
For example, the euro bailouts were patently illegal – not just in the sense of having no basis in the treaties, but in the sense of being expressly prohibited. Yet, when the moment came, the imperatives of political union were deemed to matter more than the rule book.
The single most integrationist measure in the history of the EU – the ruling that its laws had primacy over those of its member nations – was the result of an ECJ power grab, recognised only much later in a retrospective treaty amendment.
I can’t speak for every Leave voter, obviously, but this was the issue that made me a Brexiteer. The supremacy of EU law was what turned an association of states into a federationin-the-making. As the late Lord Neill, the brilliant lawyer who served as vice-chancellor of Oxford and warden of All Souls, once put it, “A court with a mission is a menace; a supreme court with a mission is a tyranny.”
The idea that the role of the ECJ is a second-order issue for Britain – or even, as the Irish foreign minister, Simon Coveney, suggested, an excuse to break off the talks – is preposterous. Coveney should ask himself how Ireland would react if it were suggested that the way to allow the smooth flow of goods across the border were to follow British regulations.
In reality, there is no need to have harmonised standards to keep the border invisible. There are some different technical standards today, as well as different VAT rates, petrol duties and so on, none of them requiring checkpoints. Sure enough, in the immediate aftermath of Brexit, the British and Irish governments began work on how to extend that principle, allowing divergence without intrusive checks.
Then the 2017 election happened, the Commons got an anti-Brexit majority, and the EU saw an opportunity to overturn the referendum. Ireland abandoned the talks on technical solutions and went along with the pretence that any divergence in standards would mean a hard border. Yet, in the event, the only time a hard border was formally proposed was in February by the EU – proposed, remember, so as to prevent vaccines from reaching the UK.
If the EU’s actual concerns are the ones it states in public – maintaining the single market without imposing a border – they can be accommodated. Britain has already offered a system of mutual enforcement though, frankly, I’m not sure we’re especially fussed about enforcement on the EU side, being ready to trust its standards.
The trouble is that much of what we have seen these past three years suggests that there are other objectives: preventing Britain from being too competitive; blocking trade deals that might result in our importing food from the Americas rather than Europe; diverting trade, so as artificially to create an all-Ireland economy; and, above all, showing that Britain has paid a heavy price for Brexit.
Does the EU believe, as Martin Selmayr was reported to have said during the negotiations, that that price should be Northern Ireland?
Is it prepared to upset the political balance there out of pique? Is it ready, in consequence, to lose any hope of lasting alliance with its single biggest customer, the United Kingdom? I guess we’ll know soon enough.
This has served to distract from the real issue – whether part of the UK should be governed by foreigners