Richard North, 26/07/2021  

I think it is fairly evident from my writing on this blog that I have little regard for Johnson's train-wreck Brexit settlement, or for the actions of his predecessor, Mrs May, in setting us on the path to an early withdrawal from the Single Market.

As most readers will know by now, my preference was for the UK to continue its participation in the Single Market, via the Efta/EEA route, for a prolonged transitional period. That could have lasted possibly as long as 20 years, to give industry and commerce a chance to adapt to the post-Brexit world.

The end game, though, was that we should work towards fundamental changes in the Single Market, and in particular introducing co-decision for all its participants, thus making good Delors's breach of faith during the original EEA negotiations.

By this means, the Single Market would eventually become a truly European entity devoted to managed trade, the property of all its participants. It would cease to be a tool "owned" by the EU, the primary purpose of which was to pursue political integration.

However, for no good reasons, the ambition of staying in the Single Market after Brexit was not to be. We are now confronted with the undesirable scenario of having to work with Single Market members from outside the bloc, without having secured many of the necessary changes which would facilitate trade with the UK as a major third country, sitting on the doorstep of the rest of Europe.

To that extent, the current controversy over the Northern Ireland Protocol (NIP) is not just an argument over the trading arrangements for Northern Ireland.

The deeper issue is that, through trade with Northern Ireland, and with Ireland itself – which for many firms has become an extension of the UK market – we are confronting many of the infelicities of the creaking, inflexible bureaucratic structures of the Single Market, the alternative description for which is a "regulatory union".

Although denied by many on both sides of Channel – mainly by people with a limited knowledge of the history and objectives of the EU - the Single Market label has tended to obscure its primary function.

And since that primary function was to achieve a political objective rather than facilitate trade, the regulation produced by the EU was (and still is) often badly drafted, needlessly complex and in not a few instances counter-productive (in terms of trade facilitation).

Thus, before it was ready or even properly equipped (institutionally or intellectually) – under the aegis of probably the worst prime minister in living memory, if not for all time – this government is seeking changes to the NIP when it should really be focusing on securing more sweeping changes to the Single Market acquis.

The validity of this assertion is easily tested by reminding ourselves that, had the UK as a whole remained within the Single Market (aka regulatory union) instead of just Northern Ireland, the problems currently being encountered would no longer exist – at least, not to anything like the same extent.

It follows that the ultimate solution to the problems with Northern Ireland is not to address the Protocol per se, but to broaden the scope of the "conversation" with the EU, and open up the prospect of a longer-term (and more cordial) discussion about the management of the Single Market, its structure and the utility of much of the regulation.

If this is regarded as ambitious or unrealistic, or both, it shouldn't be. By way of example, a system which devotes a 409-page regulation to specifying the forms to be used by exporters of animals and food products into the Union has to be considered all bad. This is a system in its terminal stage of bureaucratic decay.

The UK's immediate problem, therefore, is that the focus is still in the NIP with little thought being given to the broader context. And, as long as the issues are constrained by this claustrophobically narrow framework, they will probably defy solution.

Already, the Financial Times is underlining the EU's "sense of irritation at the latest British effort to relitigate the Northern Ireland protocol of its Brexit deal". Understandably, this is seen as an attempt to renegotiate a deal before it has even been fully implemented, raising "trust" issues and drawing criticism about "bad faith".

And yet, even the FT conceded that, "within the maximalist British demands there are some legitimate points". It sees these as "an overzealous EU interpretation of rules", which it categorises as "out of proportion to the threat to the integrity of the single market from British goods arriving in Northern Ireland".

The paper sees the risk as "theoretical rather than real", not least, it says, because there is as yet no significant regulatory divergence. But, in so doing, misses the point. The regulation, as they say of hastily bought pets, is not just for Christmas. It is for life. The EU has to deal not only with the situation as it is now but as it could very well become.

In an expression of political naivety, the paper goes on to say that "Brussels can defensibly argue that the UK can remove many problems by signing up to EU sanitary and phytosanitary rules", compounding the naivety by stating that this conflicts with the UK’s desire for free trade deals, but choosing to prioritise that over a solution is, Brussels might argue, Johnson's choice.

It is though, far more than that – it conflicts with the very essence of the Conservative/Vote Leave mantra of "taking back control". In the current political climate, this government (for better or worse) will not allow itself to be seen to be adopting a legal framework dictated by Brussels.

This is where the idea of ownership becomes vital. When the EEA was first mooted, Delors was talking about "a new, more structured partnership with common decision-making and administrative institutions". This, he conceded, was necessary "to make our activities more effective and to highlight the political dimension of our cooperation in the economic, social, financial and cultural spheres".

In line with the times, he referred to he referred to Mikhail Gorbachev's notion of a "common European house", which had been articulated as early as 1987. But, as an alternative, he offered a "European village", in which he saw a house called the "European Community". "We are its sole architects; we are the keepers of its keys", he said, "but we are prepared to open its doors to talk with our neighbours".

This was in 1989 and, if the need to "talk with our neighbours" was real then, it is all the more pressing now. Political discourse is a two-way street and it must have dawned on the EU by now that the post-Brexit environment has created a new reality. The status quo is no longer an option.

On the other hand, this must also apply to the UK. Currently, it wants a "Brexit standstill" which would see much of the NIP put on hold indefinitely, with border checks held in abeyance. This is about as unrealistic as the EU expecting the UK to conform with its version of a veterinary agreement.

It thus seems to me that the only way we are going to see daylight on this issue is by fresh thinking, with allows both parties to reframe the debate in a way that allows both to live with it. The idea of co-ownership of a common resource – mooted by Delors in 1989 – never really went away, and it now needs to be reactivated.

Either way, something is going to have to give. There is no possibility whatsoever of compromise in the debate as currently framed. The outcome of fixed positions will simply be a long attritional war, with no winners.

Also published on Turbulent Times.

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