The European Union did not force the UK to do anything

A critical reading of Nick Timothy’s article in the Telegraph by a supporter of the EFTA4UK campaign

Nick Timothy is a former Special Advisor (SpAd) to Theresa May when she was Home Secretary and later Prime Minister. The article appeared in The Daily Telegraph. 

In the second paragraph Timothy writes: “With the United Kingdom declaring its intent to leave the single market and customs union there needed to be a border separating it from the European Union”. “In Northern Ireland, the EU saw an opportunity to force the UK to stay in its regulatory orbit”. 

The Single Market is a huge geographical area from Iceland to Greece and Poland to Portugal of which the European Union states are part. It is not solely the European Union, as the Single Market also includes Iceland, Norway and Liechtenstein who are not in the EU, but in the European Free Trade Association (EFTA) and who are signatories to the European Economic Area (EEA) Agreement.

According to the book “Betting the House” (Ross & McTague) it was Mr Timothy himself who persuaded Mrs May that the EEA equalled the European Union (it doesn’t and isn’t) and that therefore unless the UK left the EEA, Brexit would not have been delivered.

Mrs May allowed herself to be persuaded and announced that the United Kingdom would leave the Single Market in her Lancaster House speech:

“But I want to be clear. What I am proposing cannot mean membership of the Single Market. European leaders have said many times that membership means accepting the “four freedoms” of goods, capital, services and people. And being out of the EU, but a member of the Single Market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country. It would to all intents and purposes mean not leaving the EU at all.” 

In fact, Mrs May was incorrect in saying that staying a member of the Single Market would mean accepting a role for the European Court of Justice (CJEU) having direct legal authority in our country. EFTA has its own court, the EFTA Court, which takes note of decisions of the CJEU relating to the EEA, but is independent in interpreting these and occasionally exercises its power to rule differently, which makes the CJEU’s authority indirect at best.

Her speech made clear that it was the United Kingdom Government’s sovereign choice to leave the Single Market (EEA) and in so doing make itself into a third country. The European Union did not force the UK to do anything. 

Once the UK decided to become a third country, the EEA states (including Norway, Iceland and Liechtenstein) had to enforce the Non-Tariff Barriers (NTBs) which they gave notice of in their Notices to Stakeholders (NTS). In Ireland, the Republic of Ireland would stay in the EEA (& the EU) whilst Northern Ireland would leave both. That meant that the Republic of Ireland would have to enforce the Non-Tariff Barriers against the North, which in turn meant a regulatory border including Border Inspection Posts and SPS Checks at the land border.

Since such a proposition was anathema politically and unenforceable on the ground, it was proposed that there would be a “wet” border of the Irish Sea and that Northern Ireland would effectively be in the regulatory orbit of the EEA.

Mr Timothy writes “[Mr] Johnson trapped between needing a Brexit deal to win an election and a majority to negotiate a Brexit deal chose a border within the UK. He agreed the protocol knowing it was iniquitous and unsustainable and decided to fix it later.” In my view this is damning to Timothy’s previous assertions.

If Johnson CHOSE an internal UK border, then he was not FORCED by the EU. If having made that choice the deal was iniquitous and unsustainable then why did he sign it?

In Paragraph 3, Timothy confirms the above: “We are told that the UK had to fix the NI border or there would be no Brexit deal. But with no deal a border would have been necessary anyway…Brussels not London that insisted to Dublin on full North/South checks”. The whole UK would have left the EEA(SM) with No Deal. The UK decided that Great Britain (GB) would leave the EEA (SM) in the Trade and Co-Operation Agreement (TCA) but that Northern Ireland would stay in the EEA meaning the ‘wet’ Sea regulatory Border would apply.

Turning to Paragraphs 5 & 6, Timothy writes that “While the North/South border has been maintained without new infrastructure or checks preserving the integrity of the EU Single market”. This is a telling phrase. It is NOT the EU’s single market. The EU is part of the wider EEA agreement which includes non-EU States. Moreover, any infrastructure or checks would not be “new” they would be part of the consequences of NI leaving the EEA. Paragraph 6 gives examples of things that cannot be sent to the province such as plants ‘from one part of the UK into another’ because one part of the UK is in the EEA (effectively) whilst the other parts of the UK are not.

In Paragraph 7, Timothy writes that “The EU acted in bad faith.  In January the EU proposed and withdrew its intention to suspend the protocol and impose a vaccine border”. The EU did indeed do this. Fortunately, Irish politicians alarmed at what was proposed, saw the danger and warned the EU to withdraw its intention which it did. Importantly the EU did not give legal effect to its intention. The EU acted hastily and was stopped although some damage had been done. 

In Paragraph 8 he states that “The EU is expected to propose that goods bound for Northern Ireland from Britain will no longer be subject to checks If they are for sale and consumption in Northern Ireland….indeed vindicates the much maligned campaign for change.” I would say that the UK has been less than collegiate in their position and in their campaign, but that of course is a matter of opinion.

Timothy writes in Paragraph 9 “for the issue is not sausages but sovereignty. The Government cannot allow the continued jurisdiction of the European Court of Justice over the NI Protocol… Sovereignty after all only really means self-determination and democratic control.”

In Paragraph 10, he goes on to say that “The EU has behaved as a heavy handed, hypocritical and imperialistic power [in Northern Ireland]”, but I am not at all sure that the EU has behaved in the way Timothy describes.. The article has gone full circle. The UK exercised its Sovereignty when it decided that Great Britain would leave the Single Market (EEA), but that Northern Ireland would not. That decision had regulatory consequences in the shape of the Notices to Stakeholders, the Non-Tariff Barriers. The European Union did not force the United Kingdom to do anything. The United Kingdom made its own sovereign decisions.

@knoweuro

The author was a leave voter and would vote leave again in any future referendum. That does not mean that the author is uncritical of the method of leaving or some of the messaging from the May or Johnson Governments. Any errors are the author’s and will be corrected. Corrections will be acknowledged. The author is currently politically homeless.