David Lidington is a former Cabinet Minister and Europe Minister. He is Chair of the Royal United Services Institution (RUSI), and of the Conservative Group for Europe (CGE).
The United Kingdom and the European Union and its member states have an essential common interest in maintaining and deepening peace, stability and reconciliation in Northern Ireland. Today, that process is far from complete. Northern Ireland is still a long way from being a genuinely shared society.
The outcome of the 2016 referendum added to the challenge. Overall, 56 per cent of voters in Northern Ireland backed staying in the EU. But that figure concealed important variations. While Nationalists voted overwhelmingly for Remain, roughly 60 percent of Unionists voted to Leave.
The UK’s decision to leave the EU’s Single Market and Customs Union means that there have to be controls on trade somewhere. Both Theresa May and Boris Johnson rejected any kind of North/South border. It would be impossible to enforce, provoke large-scale civil disobedience and be seen by large numbers of moderate Nationalists, otherwise content to let sleeping dogs lie and stay within the United Kingdom, as a threat to their Irish identity, pushing them towards supporting a border poll and unification with the Irish Republic.
The deal that was then negotiated by the Johnson government and endorsed in its 2019 General Election manifesto, involved instead accepting checks and paperwork between Great Britain and Northern Ireland.
Some such arrangements have been in place since well before the referendum: most obviously on livestock, where the treatment of the island of Ireland as a single animal health zone meant that cattle or sheep shipped from Great Britain to Northern Ireland needed various bits of paperwork and physical inspection. But the regulatory and inspection regime required under the Protocol has proved in practice to be much greater.
The Government’s deal has given Northern Ireland businesses, uniquely, the enviable advantage of being able to sell freely into both the UK and EU markets. At the same time, consumers and businesses relying on supplies from Great Britain have faced additional costs and bureaucracy.
Politically, the Protocol is seen by a very large proportion of Unionists as undermining their identity as British and pushing them by stealth towards a united Ireland.
We are now in the situation where the Northern Ireland Protocol seems likely to be the defining issue of the Stormont election due next year, with opinion dividing along sectarian lines. Hopes of building a shared society seem more distant.
It is in the interests of neither Brussels nor Westminster to let these divisions fester. Both the United Kingdom and the European Union have a duty to overcome the lack of trust that currently bedevils negotiations and to compromise.
For the United Kingdom, I believe that compromise has to involve accepting the implications of the Protocol that the present Government negotiated and ratified after campaigning at a general election for its deal to be endorsed.
As for the EU, it should not only bring forward the bespoke solutions that it has drafted to address such things as ensuring supplies of medical drugs from Great Britain to Northern Ireland but also initiate measures to, in Michel Barnier’s phrase, “de-dramatise” paperwork and inspections so that they become a much less onerous burden for business and consumers. The proposals published by the Commission yesterday are a welcome step, though clearly much depends on the detail.
It is possible to go still further. The majority of the checks and paperwork currently required concern food and agriculture. Yet the EU and the UK in almost every respect follow identical standards for food safety and plant and animal health. Those standards are embodied in both European and United Kingdom law, enforceable by our respective courts. Find a way to bridge the gap between London and Brussels on these matters, and much of the burden on business and customers falls away.
The Conservative European Forum (CEF) paper published today proposes a self-standing, time-limited treaty between the UK and the EU to uphold defined animal and plant health and food safety standards that reflect the very substantial degree of alignment of those standards in the different jurisdictions.
It would last until 2025, when we’ll know the outcome of both Stormont’s vote on whether to continue the Protocol and the scheduled review of the Trade and Cooperation Agreement (TCA) between the UK and EU. There would be four years for London and Brussels to rebuild trust, collect data and do the detailed risk analysis for a long-term Northern Ireland-specific solution.
Such a treaty would not infringe UK sovereignty. Negotiating and ratifying an international treaty is a fundamental expression of sovereignty.
Under such a UK/EU treaty, the EU would apply checks and non-tariff barriers on a category of goods only if the UK did in fact diverge from current sanitary and phyto-sanitary (SPS) standards instead of, as now, applying them because the UK could diverge. The UK would have full control over its own regulations and at any time could choose to change them, for example by agreeing a trade deal that required more generous rules on imports from that other country. The Government would have to weigh up the potential effects, in terms of increased regulatory checks, of divergence from the standards included in its treaty with the EU, but would be free to make its own choice.
The treaty would sit alongside the Northern Ireland Protocol and be consistent with it. But, like the TCA, it would have its own mechanisms for dispute resolution and independent arbitration and these would deal with any disputes over SPS rules. The role of the European Court would in practice be limited to a claim of inconsistency with the Protocol or where the Commission was alleged to be acting in a way not allowed under the EU’s own treaties.
This proposal is offered as one possible route to rebuild trust and reach a good compromise. At a time when the West faces huge strategic challenges from Russia and China, it is self-destructive folly for us to be feuding amongst ourselves.
However any of us voted back in 2016, the electorate’s decision was to leave. Brexit has happened. The task now is to shape a new, different but close and friendly relationship between the United Kingdom and the EU. Nothing could be more important than concerted action to resolve current differences over Northern Ireland and stop the current descent into more sectarian division.