Newton Emerson: Bad faith is testing Brexit’s house of cards

British officials have been speaking anonymously to the Politico website about setting up what one called “the batsh*t House of Cards bureaucracy” of the Brexit deal.

There is some public awareness of the technical and ministerial committees involved, although less awareness that there are 32 of them across three interlocking strands: the withdrawal agreement; the Northern Ireland protocol; and the trade and cooperation agreement. Few people realise there will also be democratic and civic institutions: a Parliamentary Partnership Assembly of MPs and MEPs and a civil society forum that may include representatives of business, trade unions and campaign groups.

From the vantage point of Northern Ireland, it is tempting to compare this to the Belfast Agreement. There are some striking similarities.

Officials in Whitehall compare it to a "mini-EU", established between the UK and the EU, or to the structures of the European Free Trade Association (EFTA).

Newton Emerson: Stormont bemused by Republic’s stonewalling on Covid data

---

Newton Emerson: SF, DUP refuse to concede their atavistic nationalism a huge strategic error

---

Newton Emerson: Unionists have no choice but to make the Irish Sea border work

---

Newton Emerson: English Channel disruption is the future

---

While Covid might be an exceptional test of relationships, it could simply be exposing built-in flaws – and the epidemic is far from over

Rejoining EFTA was a fashionable debate in the early stages of Brexit.

In time, this mini-EU might be expected to become a dry and dependable fixture of European politics, generating the sort of arcane headlines long familiar in Norway or Switzerland.

British civil servants would take professional pride in operating it to the letter, just as they insisted on needlessly “gold-plating” EU directives. British ministers would gladly accept the excuse this provided to go with the European flow.

However, most continental institutions, even if arranged through fraught negotiation, are driven by a shared vision. The mini-EU is essentially a divorce settlement and there are already signs of this giving it an unstable and confrontational nature.

Pettiness

The row over the UK refusing to grant the EU ambassador full diplomatic status mixes pettiness with symbolic significance.

The European Commission’s behaviour has arguably been worse. On January 18th it published a notice that EU state aid rules, applied in Northern Ireland under the protocol, will “reach back” to any British firm operating in or merely trading with Northern Ireland. This contradicts a declaration the commission made in December that was crucial to getting the Brexit deal over the line. There is an obvious parallel with London’s threat to break international law through the infamous UK Internal Market Bill – a parallel so obvious, it looks intentional.

The January 18th notice is not law and should not survive legal challenge. It might cause British businesses to pull out of Northern Ireland or it might not: most firms the UK would seek to aid would want to trade with the wider EU, so would have meet its state aid rules regardless.

Lough Neagh eels cannot be exported to Britain for conservation reasons, yet vital restocking of the lough with eels from Britain is banned for sea border reasons

But the commission’s aggression is beyond dispute. It is using Northern Ireland as a bargaining chip with the same reckless cynicism that defined the Brexit negotiations. This was not meant to remain a feature of the post-Brexit relationship. Political stability in Northern Ireland has become premised on the UK and the EU working together in good faith to mitigate the protocol. Even perceptions of bad faith and hostility are enormously damaging.

The omens would be dire enough without this week's extraordinary row over vaccine supplies. For the moment, the EU claims only to want "transparency" on vaccine exports – it is Germany that has requested the power to block them. However, the European Commission has accused the UK of receiving part of the EU's "fair share" and says it will "take any action required to protect its citizens".

Built-in flaws

Consider a scenario two months from now, at the end of the sea border “grace period”, where the EU is demanding the UK block trade between Britain and Northern Ireland under a maximum interpretation of the Brexit agreement, while at the same time tearing up agreements and its supposedly inviolable principles in order to block vaccine supplies to the UK.

This would not be politically sustainable. The mini-EU would collapse if anyone in London decided to press Brussels on its hypocrisy, whether through sincere or insincere concern for Northern Ireland.

While Covid might be an exceptional test of relationships, it could simply be exposing built-in flaws – and the epidemic is far from over.

Meanwhile, the people of Northern Ireland endure their daily torture of ridiculous sea border stories. This week, Amazon has cancelled all alcohol deliveries after expecting this problem to be fixed. A 20 per cent VAT charge on used cars from Britain has been waived but could be unwaived. Lough Neagh eels cannot be exported to Britain for conservation reasons, yet vital restocking of the lough with eels from Britain is banned for sea border reasons. A shipping container of English cheese is safe but one box of it threatens the biosphere.

The mini-EU showed early promise in resolving such issues but it is running out of time, under pressure of events, to get on top of them. Fresh legal assurances and demonstrations of effectiveness are required if this house of cards is not to come crashing down.