Waterloo Day Lecture - ‘The Future of the Union’

 Panelists: Barry Legg (Chair), Lord Dodds of Duncairn, Sir Bernard Jenkin MP, James Webber

Lord Dodds, former Westminster Leader of the DUP:

• On the recent resignation of Edwin Poots: resignation provides the opportunity to "move forward…in a more constructive way"
• The imposition of the NI protocol has been the main contributory factor to the instability in NI
• NI, like any other part of the Union, has the right to leave the EU with the UK -> The DUP's view has always been that whatever form of Brexit, NI should be in the same position before or after Brexit, so there can be no border in the Irish Sea
• Some say the May Government's UK-wide backstop should've been accepted by the DUP as it would've meant that NI left in the safe condition as the rest of the UK, but this is a fundamental misunderstanding of what was on offer and was not a true Brexit -> creating a regulatory border i.e. same situation -> May would've aligned the whole of the UK with EU rules, "No self-respecting government would possibly tie itself in such a way to EU rules" -> This was not tenable -> Both in principle, and for practical reasons, the backstop was unacceptable.
• On the Johnson Government -> Boris Johnson was "dealt a very difficult hand", and the protocol has caused enormous damage - both to the constitutional and economic position of NI -> The government says the EU wouldn't apply the protocol in the way it has (e.g. sausage wars on Sainsbury's sausages coming to NI), but the government knew full well the possibility of these rules being applied in such a way by the EU, and we know the history of the EU and how it operates, we know their political attitudes and their belief in binding NI and the rest of the UK to their rules -> It was pretty clear that EU law would apply directly in NI -> This didn't take the government by surprise, for the DUP warned privately and DUP MPs warned the government in the Commons, "NI has been badly let down by the Conservative and Unionist government"
• What is the problem with the protocol?
  • Firstly, there's a constitutional problem - for the first time, in a part of the UK, swathes of laws affecting the economy are made by a foreign institution, in which no one in NI has any say or vote - whether it is people elected to Westminster or Stormont. Some may say that every 4 years, Stormont can vote - but the voting system has changed, and there must be cross-community agreement. The elected MLAs/MPs for the nationalists support binding NI to the EU - thus, the government has prevented unionists from opposing the protocol -> This needs to be rectified to bring it in line with all other votes in the assembly. "The Act of Union has impliedly, in part, been repealed". -> All of this has been done without the consent of anyone in NI
  • Secondly, there's a trade issue - from checks on pets for rabies or tractors coming into NI. The sausage wars show that people in NI have been denied free choice as consumers.
• This is a deep political and economic problem and will not be solved by either extended grace periods or different levels of checks. This can only be solved by the replacement of the protocol and having lawmakers in Stormont or Westminster make laws.
• The grace periods that were negotiated by the UK are running out, with issues from chilled meats to medicines, where NI may face the incredible situation where goods may not be accessible to people in Northern Ireland -> This will bite very hard for NI consumers, and there is a clear urgency.
• Increasing tensions, as shown with near-daily assemblies protesting against the protocol, because potentially nefarious. Lord Frost clearly understands the issues at hand how unsatisfactory the protocol is. "There is no point doing something that satisfies nobody."
• "The protocol is not a solution, it's a means of easing what is a fundamentally flawed construct."
• There is a sense that "we are left high and dry" -> There will be a clear detriment were Scotland to leave, and the fundamental responsibility of protecting the union are not being respected as they should. This could potentially escalate quite considerably, and the EU is unlikely to show political flexibility, especially in face of Irish pressure.

Sir Bernard Jenkin MP, Chair of the Commons Liaison Committee:

• The EU created the illusion of a haven for regionalism and internal nationalism within EU countries -> Leaving the EU united the UK more than before.
• The SNP bases its support on false notions of Westminster hiding Scottish wealth -> 18% of Scottish exports went to the EU and 60% to the rest to the UK
• Therefore, while the flawed devolution can be cited as having inflamed nationalistic sentiment, but the EU is the main contributor to nationalistic sentiments via the Union's structural funds which legitimise the Scottish Government's claims of a net benefit were independence to happen. The SNP were having their cake and eating it by benefitting from the UKGov's SPF but still arguing against UKGov.
• SNP comparisons between Scotland and Norway and Iceland are falsehoods and must be challenged.
• It's the protocol that goes against the GFA -> It's more important to prioritise the GFA and the integrity of the UK, plus the EU single market.
• There was once the prospect of the NI protocol being superseded given the EU was supposed to be negotiating it in good faith.
• The break-up of the UK is going to have consequences that reverberate and will have implications for the UK's economy and place in the world, and thus governments shouldn't give up on the Union, but money earmarked for Scotland needs to be spent in a way that's transparent and held accountable.
• There needs to be action taken to ameliorate the issues coming from the protocol, but "things might come to a head" in the summer. The UK might not unilaterally have to extend the grace periods. The UK has to propose alternatives that "protect the integrity of the single market" -> We must not descend to angry exchanges that Pres. Macron appeared to be at Carbis Bay.
• "We've got to carry our audience", "Let us look forwards and stop the problems that are emerging."
• The issue of supremacy of the ECJ needs to be discredited -> It needs to make clear that EU sovereignty no longer applies. The EU's power grab appears to be continuing. Proposals such as those to a 'temporary alignment' are an automatic concession to EU taking back control.

James Webber:

• The protocol sets out legally binding obligations of the UK and EU, not a set of aspirations or an MOU of sorts. It's unambiguously legal in character.
• NI protocol provides that EU law applies in full in Northern Ireland, but provides rules for the EU to provide exceptions, such as the case of the transfer of goods. These are not automatic.
• Compliance issues: Article 3 of the ECHR -> Since the protocol no longer allows NI people to have a say over large swathes of their lives - from tax and VAT to public spending - the protocol thus contravenes this articles
• Challenge to GFA: Just because it affects the economic status of NI, instead of the constitutional status of NI, is not a sufficient excuse. The US constitution has a commerce clause, and the EU's constitution once had a large section on transfer of goods. Thus, the concept that this merely controls trade and is not a constitution are wrong, especially given this does not come with the consent of the people of NI.
• Article 50 of the Withdrawal Agreement: This is the EU's legal basis for entering into the WA, and is only allowed to negotiate on the basis of the exit of a state, not the everyday governance of a now-withdrawn territory. Hence, Article 50 cannot be the basis for the future relationship.
• Hence, there are both legal and political reasons why the protocol needs replacing. The most effective way to oppose the protocol is to make clear that the protocol was designed to solve a problem, and has failed to do so, even leaving aside the clear instability this has caused.
• The root problem is that the EU and the UK agreed there should be no hard border - no customs structure or associated security installation - a clear point of vigorous agreement, both because of the expense of a border, the susceptibility to attack, and the disruption to everyday lives.
• The next problem is the evident quagmire: How do you protect your own customs arrangements without a border, the first opportunity to assert your jurisdiction? One initial proposal was a border in the Irish Sea - but an alternative was 'mutual enforcement', in which each side makes a reciprocal treaty to enforce one another's rules in one another's territory. This places the obligation to comply with the imported states rules on the exporter. Due to reliance on the integrity of the legal system on the other, there is no supposed need for a customs border post -> Both sides are effectively reaching beyond their border.
• The protocol is fundamentally asymmetric as the UK is enforcing EU laws, while mutual enforcement is symmetric, which has a narrower goal that exists to remove border infrastructure, and just needs convergence on a few rules.
• The mutual enforcement goal is where the quality checks on exporting goods are to be enforced in British courts, not Irish courts. HMRC needs to be able to access EU databases to Britons can pay their duties - in any case, there need to be significant mutual trust in this arrangement. Mutual, inherently symmetric, respecting of the UK's position.
• The underlying problem we have is that the WA put the protection of the single market above the UK's constitutional settlement -> It's a clear legal problem -> "It's protecting the single market at the cost of the constitutional settlement in NI.