Blog Post by Irina von Wiese, former LibDem MEP
London Calling is the European Liberal Forum’s column aimed at bridging the Channel.
Just when we thought that Brexit was taking a predictable course, something entirely unpredictable happened and shook the foundations of the pro-EU movement in the UK.
On Friday, 29 January – 29 days into real-life Brexit – the European Commission invoked Article 16 of the Northern Ireland Protocol. The decision was reversed within hours, but the damage was done. After years of promoting EU membership, of pointing to the dangers Brexit poses to the fragile peace in Northern Ireland, of condemning the UK government’s attempts to override the Northern Ireland protocol and impose some kind of physical border on the island of Ireland, it wasn’t Boris Johnson who threatened to close precisely that border – it was Ursula von der Leyen. Europhiles in the UK were stunned, and Eurosceptics triumphant. In a rare display of agreement, Leavers, Remainers, British and Irish politicians united in their condemnation of the Commission’s proposals.
What had happened?
Under the Northern Ireland Protocol, an integral part of the UK/EU Withdrawal Agreement, Northern Ireland remains in the EU single market for goods and continues to operate under EU customs rules. Essentially, this means that EU goods can be exported from the EU to Northern Ireland without checks.
The Protocol was the answer to the difficult Irish border question, designed to avoid a return of checkpoints along the politically sensitive border, and a potential return of sectarian violence in the North. It is the outcome of years of complex negotiations between the EU, the UK, Republican and Unionist parties in Northern Ireland, and the Republic of Ireland. However, article 16 of the Protocol allows either party to unilaterally suspend aspects of its operations if it considers that aspect to be causing ‘economic, societal or environmental difficulties’. This mechanism is only supposed to be triggered in the face of ‘serious’ problems – although there is no definition of what constitutes a ‘serious’ problem.
When the Commission was faced with significant vaccine shortages in the EU, despite having a number of production facilities within its borders, political pressure from Member States (notably Germany) led it to deploy the ultimate protectionist weapon: export controls. Having done so, it came to realise that the Northern Ireland protocol posed an obstacle to enforcing any such controls, because it opens a back door for exporters to move vaccines into the UK. Only article 16 closes that back door.
The implications are manifold:
1 – Brexit, and the new Trade and Cooperation Agreement between the UK and the EU, can only work on the basis of mutual trust. The Northern Ireland protocol foresees that border controls of any kind are carried out by UK personnel, at an intra-UK border (between Northern Ireland and Great Britain). UK border forces can hardly be expected to enforce an export ban aimed at preventing any goods from entering the UK – let alone life saving vaccines. So any kind of change in EU external trade policy was always going to depend on UK cooperation. Likely it was a lack of mutual trust that led to the inclusion of article 16. Almost certainly, the antics of the UK government during the Brexit negotiations fed that distrust. Whatever its purpose, article 16 is a dangerous back door to a fortified Irish land border. If the aim of the Protocol is to protect the fragile peace in Northern Ireland and to ensure the Good Friday Agreement will not be undone by Brexit, article 16 sabotages this aim. That it should be invoked only 29 days after the end of the Brexit transition period, is worrying. That it should be invoked first not by the UK government but by the European Commission, is shocking.
2 – Even though it was quickly withdrawn, the mere suggestion to deploy article 16 has served Boris Johnson with the perfect excuse to unravel the Northern Ireland Protocol – a thorn in the side of many Unionists. Not to be outdone by Ursula von der Leyen, he has already threatened to invoke article 16 himself – this time with a view to preventing border checks in the only alternative location: the Irish Channel, which separates Northern Ireland from the rest of the UK. This would leave the EU with no means of controlling its exports, on either side of Northern Ireland. Just this once, Johnson may have the better argument – controls on vital exports are neither workable nor desirable. That said, the readiness to invoke article 16 of the Northern Ireland Protocol just goes to show how easily both sides are willing to set aside an international treaty.
3 – The proposed export controls (and therefore inevitable invocation of Article 16) betray a mindset which ranks vaccination in the EU not only above political concerns in Ireland, but also above the needs of other third countries. Those who argued that in an unequal world vaccine nationalism is unavoidable, have been proven right. Nonetheless, it is a fallacy. While richer nations will initially protect their citizens, they cannot permanently close their borders to visitors. It is an even greater fallacy (and moral capitulation) for a bloc of wealthy nations who subscribe to values of equality, non-discrimination and human rights not just within their own territory, but around the globe. As Vice-Chair of the European Parliament’s Human Rights Subcommittee I worked to promote these values in third countries. Now, how can the EU keep the moral high ground?
The COVAX initiative aims at an equitable distribution of vaccines across the world, according to need, not buying or negotiating power. In November 2020, the EU contributed EURO 500 million to COVAX to provide one billion vaccine doses for low and middle income countries. Two months later, it introduced controls over the export of EU vaccines to some 100 countries, not all of them rich. The WHO rightly criticised this move as vaccine nationalism.
4 – Faced with this dual capitulation, it has become more difficult for pro-EU groups in the UK to defend other EU positions, condemn the Brexit fallout, and pave the way towards an eventual return to the EU. Of course, none of this would have happened without Brexit. But the Commission’s actions leave a lot of questions to be answered. This lapse is different from other subjects of Euroscepticism, many of which were based on false or outdated information. The EU has evolved and its systems have become more democratic, and more robust to withstand attacks from within. But these systems have not been able to prevent the Commission’s error of judgement. Why was there no parliamentary scrutiny? Why was the Council (including the Republic of Ireland) not consulted? Has there been a proper debate about the role of trade policy in a global pandemic?
Without answers, the setback to the pro-EU cause in London, it seems, will outlive the vaccine row.