In the tortuous negotiations over Brexit, Boris Johnson’s government believes it has learned one big truth: hardball tactics with the EU work. It is convinced it extracted concessions by threatening a no-deal exit in late 2019, and again last year by preparing to override parts of the withdrawal agreement it signed months earlier. With talks on reforming the post-Brexit protocol on trade with Northern Ireland seemingly stuck, Downing Street is indicating it is ready to trigger a clause that would suspend key parts of that accord. Forceful negotiating tactics are one thing. Carrying out the threat would be a grave mistake.
Like any “safeguards clause”, Article 16 of the protocol exists to be used, by both sides, if applying the agreement leads to “serious economic, societal or environmental difficulties” or reduces trade. Corrective steps can be taken unilaterally, but must be restricted purely to what is needed to remedy the situation. With two buses set alight by masked men in the past week, a Northern Irish first minister forced to resign in the summer, and trade being crimped, Downing Street argues the threshold to pull the alarm cord has been met.
But the article is supposed to apply to unforeseen issues. There may be truth in Britain’s argument that the EU has applied the protocol in overly legalistic fashion and, until last month, was slow to offer compromises. Much of what the UK objects to about how the protocol is working, however, was entirely foreseeable. It flowed directly from the hardline Brexit Johnson’s government insisted upon. Unless all of the UK stayed in a customs union with the EU, Northern Ireland had to remain in the EU’s single market for goods, to prevent a destabilising “hard” trade border being created with the Republic.
Downing Street set out in a July paper five desired changes to the protocol — including removing the right of the European Court of Justice to settle disputes — that amounted to a rewrite of key elements. If the UK used Article 16 not in a narrow, limited way but to try to force these changes, that would fall well outside the clause’s purpose. It would be tantamount to one party using the safeguards clause to unravel the deal and compel a renegotiation.
Britain would almost certainly lose ensuing EU legal action, on those grounds. But that would take time. The UK government hopes it could, meanwhile, establish facts on the ground and allow it to demonstrate that its preferred approach — involving, in essence, no border in the Irish Sea but in-market surveillance — is workable. That would entail two unacceptable risks.
First, since maintaining the integrity of its single market is an EU article of faith, it is not inconceivable — as Ireland’s foreign minister Simon Coveney has warned — that the EU might respond by setting aside the post-Brexit Trade and Cooperation Agreement with the UK. That would need 12 months to take effect. But it would create a new potential “no deal” cliff-edge — just as supply bottlenecks, labour shortages and rising energy costs are creating a cost of living crisis. Damage to the economy, and the government’s political fortunes, could be severe.
Secondly, it would torpedo the UK’s credibility as a reliable partner as it seeks trade deals across the world. Negotiated solutions exist to the Northern Ireland frictions, similar to the EU’s veterinary and dispute resolution agreements with Switzerland. Downing Street has played chicken twice on Brexit and thinks Brussels swerved. It should not assume it will happen a third time. And in a head-on collision with a much heavier vehicle, there is little doubt who would come off worse.
Source: Economy - ft.com
