Ben Habib: This is too little, too late from Lord Frost on the Northern Ireland Protocol
The jury is out but close to a verdict on Lord Frost.
Much of what he says is good.
Most importantly he has repeatedly said that the Northern Ireland Protocol cannot stand as it is – it is unsustainable.
But worryingly, together with the prime minister, he has also repeatedly blamed, not the terms of the protocol, but the EU’s disproportionate application of it for its failure.
This is fundamentally wrong; a deceptive argument to avert eyes from the prime minister’s culpability in this act of monumental constitutional self-harm.
He has now added to that deception that the terms of the protocol are a little difficult to understand as they require reading across other clauses with occasional contradictions.
Admittedly its non-operative recitals, such as upholding the UK’s customs union and the Belfast Agreement, are belied by its operative provisions. But the operative provisions are crystal clear.
These put Northern Ireland in the EU’s customs union, subject to dynamic alignment with hundreds of EU laws, under the supremacy of the Court of Justice (ECJ) of the European Union with a border down the Irish Sea.
The truth is, if the EU were acting in breach of the protocol, the UK would have called it out for acting illegally.
The EU is simply using the awful terms of the protocol, agreed by the current government, to its political advantage.
It is welcome that Lord Frost’s new demands would apparently eliminate most of the checks across the Irish Sea and the role of the ECJ. But this is way too little, too late – and the EU will not, in any event, agree.
On 19 July, the EU released a statement in which it admitted its aim is to use the time afforded by grace periods to “allow stakeholders, in particular supermarkets in Northern Ireland, to complete the adjustment of their supply chains”.
The protocol set the legal framework for the capture of Northern Ireland; and the shifting supply lines is its practical application. Grace periods are not helping the UK, they are enabling the EU to progress the dismemberment of the UK.
Indeed, as Lord Frost so eloquently articulated, supply lines have already significantly shifted and serious economic and societal difficulties have befallen Northern Ireland.
This fully entitles the UK to invoke Article 16 of the Protocol and thereby suspend parts of it (as distinct from terminating it). But for reasons not advanced, he has decided not to do so.
If he was remotely serious about saving our union with Northern Ireland, he would have accompanied his new demands with the justified immediate invocation of Article 16.
That article is designed as an emergency handbrake. It needs to be yanked. With every day that passes, Northern Ireland is pulled further towards Ireland and away from Great Britain.
Grace periods and delays are aiding and abetting the break-up of the UK. Invoking Article 16 would have been the first step towards reversing the gross constitutional negligence already visited by him on our country.
At the heart of our problems with the protocol is the prime minister’s refusal to face reality and continued false representation that Northern Ireland’s position in the United Kingdom has not been diminished by it.
This is in spite of the EU making plain its designs on Northern Ireland and the High Court in Belfast determining the protocol to be at loggerheads with fundamental aspects of the Act of Union.
There is no basis on which the protocol could be made to work. Even if Lord Frost is able somehow to smooth the passage of certain goods across the Irish Sea, this would do nothing to deal with the imposition of foreign laws in our land.
The point is this: if a light touch customs border can be created in the Irish Sea, so can one on the island of Ireland where trade is a small fraction of that with Great Britain.
The only proper answer to the EU’s attack on our constitutional integrity is to ditch the protocol.
Unless Lord Frost acts on this reality, the jury will judge him to be as guilty as Boris Johnson in the partitioning of the United Kingdom. And if it is the prime minister preventing Lord Frost from speaking plainly, the noble Lord must resign.
• Ben Habib is a former Brexit Party MEP and is one of the politicians challenging the protocol in court
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