by Frank Schnittger
Thu Oct 14th, 2021 at 11:03:52 AM EST
Newton Emerson, the most articulate unionist political commentator, has a good piece up articulating the unionist perspective on the current "negotiation" over the protocol. (Irish fury over Frost seems aggravated by London taking unionism's side).
In summary, he thinks Lord Frost is playing a blinder and has the EU on the back foot. Having declared it wouldn't renegotiate the protocol, the EU is now busily doing just that. For him its time to push the boat out a bit further and see what more concessions the UK can get.
As usual unionists live in a small world centred on their own tribal concerns to the exclusion of all else. I have tried to put the "renegotiation" in a larger context in a comment below his article:
It is important to put this "negotiation" in a larger context, which is:
The efčovič proposals are a last gasp attempt to stop a minor regional problem triggering a major crises with a trade war between the UK and the EU. Newton, like all unionists fundamentally misunderstands how big the issues at stake are for both sides. If these issues can be contained with "practical solutions within NI" then all well and good. If the problems metastasise into a UK/EU trade war, it is end game UK and only relatively minor problems for the EU as a whole. Ireland will survive surprising well no matter what happens, but Frost is playing with fire and doesn't seem to realise it. Newton and unionist leaders are busily providing the firelighters. It will be a bonfire of the vanities. They don't realise what could hit them if these negotiations go pear shaped.
- The Polish threat to the entire legal order of the EU, which has the CJEU at its apex
- French anger at the AUKUS deal, Jersey fishing rights, and the upcoming French Presidential elections
- Political transition in Germany
- The Biden administration's hostility to the Johnson regime
- A global need to uphold international law in the face of the cynicism highlighted by Cummins' comments that the UK never had any intention of upholding the agreement they signed
- UK relative economic decline and associated political fragmentation
- The need to distract from Brexit related upheaval in the UK economy
- Rampant Irish economic growth and the opportunity for NI to share in it
- Demographic and related political change in NI
- A growing government financial crisis in the UK which puts the NI subvention at risk
- The growth of SF, especially south of the border.
- The upcoming NI assembly elections and its role in determining the future of the protocol
One can question the wisdom of going ahead with the publication of the proposals when the UK government had rejected them in advance, and insisted on making the jurisdiction of the CJEU a red line issue - something with implications way beyond N. Ireland. Timing is everything in negotiations, and you have to wait until your counter-party is in "solution seeking mode" before offering substantial concessions. Otherwise whey will just pocket them and demand more.
For whatever reasons the Johnson regime is currently in conflict seeking mode, and offering concessions now will just feed that beast. But I think Newton is radically under-estimating the repercussions if the negotiations don't go well and the UK triggers A.16. Unlike most trade agreements, the Withdrawal agreement, of which the Protocol is part, allows for proportionate retaliation, if A. 16 is triggered.
And who gets to decide whether any EU retaliation is proportionate? The CJEU. It's hard to see the UK taking the EU to that court if it considers any EU retaliation to be disproportionate. With the incipient signs of the actual implementation of Brexit having a seriously detrimental effect on the UK economy becoming ever more evident, the UK's bargaining position is becoming ever weaker.
Dominic Cummins may have said that the UK never intended to honour the protocol, and insistence on its inviolability is the purvey of small minds and junior lawyers attempting to make a living. He forgot to mention that it is only an overwhelmingly more powerful party to a Treaty which can get away with such transgressions. The UK may be about to find out its real place in the post Brexit world order.
Meanwhile efčovič may have set a trap for a UK caught up in its own bombast. No one will be able to accuse the EU of inflexibility or unreasonableness if this all goes south. The ball is now in the Frost/Johnson corner. Will they overplay their hand again?
The irony is that the N. Ireland Assembly due to be elected by May 2022 will have the power to determine the fate of the protocol by majority vote. Based on current opinion polls, pro-protocol parties (Sinn Fein, SDLP and Alliance) will have a majority in the chamber. Frost's manoeuvrings are designed purely to ensure that even a unionist minority will have a veto on its continuing effective operation - something the EU did not concede in the Withdrawal agreement negotiations. Does they EU really want to open that pandora's box again?