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Role of ECJ

31 August 2022

It is now clear that the EU made a negotiating error in trying to impose a quasi-imperial legal order on the U.K. with the Northern Ireland protocol.

It is worth saying it now that it has commenced a legal process.

Internal customs checks for a sovereign country are a near non-starter.

Far better to accept that the internal market could be slightly porous in Ireland, keep checks - preferably random - on the island and allow freer trade.

The EU has imposed a full customs regime for goods coming from the U.K. There is not a problem with that.

The U.K. has not yet imposed a full customs regime for goods coming from the EU.

There does not seem a particularly good reason for the U.K. to impose one on EU goods coming through Northern Ireland but leave that aside for now.

Imagine if the U.K. imposed the checks first for ports facing the Irish sea whilst not yet doing so for other ports. No complaint then that the protocol had not been given effect for incoming goods but everyone would rightly consider the situation ridiculous.

There is something of that ridiculousness with internal border checks in the U.K.

In practice negotiating errors are shared by both parties and both, but the U.K. perhaps more so, made an error on the movement of citizens.

Ukrainians citizens face more liberal entry requirements for short stays in the EU than U.K. ones do for the EU and EU ones do for the U.K.

For historical reasons the U.K. has a common travel area with the Republic of Ireland and it works well.

One can understand that having left the EU the U.K does not want a common travel area with the whole of the EU but there does not appear to be a strongly valid reason why a common travel area with countries that share a proximate sea crossing with the U.K. should not be negotiated and such arrangements not be just confined to the Republic of Ireland. It would be better if it were not done piecemeal (the refugee issue could be tackled at the same time) starting with Norway or willing nations, which is a possibility.

24 November 2022

Linkage could provide a solution to the protocol issue.

Five years on from the exit agreement the U.K.will regain control of its fishery waters.

The U.K. does not have the fleet to fully exploit all of its waters. The fishers of some EU countries would like to maintain customary, if not legal rights, to fish in some waters.

Any new agreement on fisheries might include arbitration as a dispute resolution mechanism, almost as a given.

Eventually, the U.K. will hold more cards on fish.

The U.K. has more than customary rights not to have internal customs borders.

Some give on one issue could be balanced by give on the other.

In arbitration agreements it is commonplace for the parties to each nominate one or more arbitrators.

There is a problem with the ECJ having automatic jurisdiction as a court in relation to the protocol but there is space for the U.K. to nominate the ECJ as arbitrator in some instances.



Of the broad terms of the Brexit agreement two areas appeared sub-optimal for the U.K. - on the Northern Ireland protocol and on movement and settlement rights of British citizens.

The objective of a global power should be to extend the rights of its citizens and, if it is not going to be reciprocal, perhaps place its citizens ahead of others. We have seen this with extradition treaties with the U.S. - they are not quite equal.

The practical outcome should not be a diminution of rights.

The protocol does appear to diminish the rights of some in Northern Ireland though perhaps only marginally in relation to natural persons, who are the real citizens.

The direction of travel of the Home Office since Brexit has logic to it but rights of British citizens are still diminished.

For a long time it was evident in French foreign policy that there was a lot of linkage. Raise one issue and others would be brought in, which had the merit of bringing them forward for attention and made them capable of resolution earlier.

The British approach tended to separate issues, and break them down if necessary, so that pragmatic partial solutions could be found early. The world is not perfect and incremental partial solutions build trust.

Happily neither nation is dogmatic nowadays.

Seeking to limit the role of the European Court of Justice in Northern Ireland is linkage.

All treaties eventually fall into disuse, many clauses from the outset cannot be understood and others scarcely applied. Revision would be a good idea but rarely happens.

The protocol was seen as a necessary adjunct to getting the Brexit agreement over the line and that line had to be crossed.

It could not be seen as sustainable over time without revision. Internal controls within a nation on trade are unmaintainable.

Since Brexit the population of the U.K. has diminished by about a million and a half, and only about 10% of this can be attributed to Covid-19, if you make adjustments.

The reservations in Britain about EU free movement that distinguished it from other movement were the potential for sudden population flows and employers using undercutting labour.

The post-war and post-imperial de facto rights that Britain has established for its citizens to live in large swathes of the globe with little impediment were diminished by the Brexit agreement.

A rising continent like Australia might extend its rights for its citizens to do so as North America did before it.

The protocol issues will probably be resolved this decade. The Parthenon marbles issue probably in another decade. Where Britain stands in relation to the main body of Europe remains in flux as does the relationship of Russia to the latter; this is a function of geography but the flux can be within bounds.

Idealism unsupported by reality can be dangerous but some linkage might be tried.

Smuggling of goods from and to the EU trading area, and related fraud, can be tackled by roving inspectorates in Ireland and Northern Ireland. It may not be extensive and is not threatening to the EU order. Port controls would appear unnecessary.

The flux will happen. The world does not stand still.

British and EU citizens between the ages of 18 and 23 and over 70 should be re-extended free displacement rights (let us not call it free movement necessarily).

18 to 23 constitutes the first 5 years of adult life. It is the period when people are most likely to want to go to university. They should be free to go to universities in the geographical area without visas.

Should they prefer to travel and work in these formative years instead they should be very welcome. Labour shortages may be addressed and there is no question of permanent population flows as after 23 they must return unless granted new visitor or residency rights.

After 70 most people are conclusively out of the employment market and usually bring income or assets with them if moving to another country. There is no convincing case to oppose full displacement rights.

Britain will need to get the movement it requires for Northern Ireland in a comprehensive settlement.

In exchange Britain should offer the return of the Parthenon marbles upon successful conclusion of the negotiations. Improved displacement rights for citizens would be an essential measure of success.

The Republic of Ireland may have to defer to the interests of Greece. Linkage may be something the EU has to be about. It is true the Brexit agreement is an international treaty but some revision is already called for.