How to fix the Ulster Protocol

The Ulster Protocol (the “Protocol on Ireland/Northern Ireland”) has come to haunt us earlier than expected. It was trouble waiting to erupt, but might have been handled far better, and could still be.

The current problems might arise through idiocy, malice or as part of a political game. I tend to the first explanation, but gaming comes into it.

The scheme of the Protocol has been discussed on this site before in the wider context. It needs revisiting for itself.

In context, some seven times more trade passes between Northern Ireland and Great Britain than between Northern Ireland and the Irish Republic, but that border across the island has more psychological impact as traffic passes back and forth without hindrance, without the need for ships. The Protocol expresses its aim as avoiding any trade border between Ulster and the rest, but still so as to allow the EU to control its own external trade border, which seems like a contradiction, hence the odd provisions to square the circle.

The Protocol is one-way: it looks at goods passing from Great Britain into Northern Ireland, not goods passing the other way, which are not the European Union’s concern.

Northern Ireland therefore remains, and is explicitly stated to be, part of the United Kingdom’s single market and customs area, but people and businesses in Ulster are given privileged access to the European Single Market. The block is that goods travelling from Great Britain must be processed as exports before they reach Northern Ireland if they are “at risk of” entering the Irish Republic and thus the European Union. Therein lies the rub: anything could be deemed to be “at risk of” entering Eire.

Guilty until proven innocent: Article 5 states that no customs duties are payable on goods entering Northern Ireland unless they are at risk of entering the European Union, but that ‘unless’ is turned on its head:

2. For the purposes of the first and second subparagraphs of paragraph 1, a good brought into Northern Ireland from outside the Union shall be considered to be at risk of subsequently being moved into the Union unless it is established that that good:
(a) will not be subject to commercial processing in Northern Ireland; and
(b) fulfils the criteria established by the Joint Committee…

Therefore there is a presumption of the risk.

A moment though: Article 5 refers to customs duties, and there are no customs duties between the United Kingdom and the European Union, so the whole Article is redundant. There is nothing else referring to those goods allegedly at risk of entering the European Union.

The further provisions of the Protocol apply some parts of European Union rules within Northern Ireland. This is a particular bugbear: it is intended to make things easier for goods and services to flow south to north, but imposes foreign law, the escape from which was one of the major benefits of Brexit.

The immediate interference with trade within the United Kingdom is a system of checks being imposed at Stranraer and Cairnryan. It is doubtful whether these are necessary at all under the Protocol. There are no customs duties being demanded nor should customs declarations be demanded as no duty can become payable: the only customs duties payable for goods entering Eire from Great Britain are on goods originating outside the United Kingdom, and that is a tiny proportion of all goods shipped. The applicability of the Protocol in this case is questionable in any case.

Were it just about customs duties, the Protocol would be wholly redundant. There is though the ‘hidden’ clause, Clause 5:

Articles 30 and 110 TFEU shall apply to and in the United Kingdom in respect of Northern Ireland…

This innocuously technical phrase imposes the EU’s customs code upon Ulster, and this is the whole cause of the hold-ups at the ports.

The Protocol was for a limited purpose, the vast bulk of which is inapplicable with the EU-UK Trade and Co-operation Agreement in place. However leave it to an officious clerk and he will not just make a meal of it but a nine-course feast.

The customs officials in Rotterdam, one of the most important commercial ports in the world, check a small fraction of the consignments passing under their eyes: main shippers have to be trusted. Could it be that those posted to Stranraer are making work for themselves? If there is no strict need for checks, then they can be withdrawn completely. It is only for goods travelling on into the Irish Republic, and that is not the concern of the British government. To be more concerned for the interests of the EU than the EU itself is would be a familiar trait in the Civil Service, and one we could well do without.

A question then:  why are these checks so frequent?  Is it not British officials running them, in which case it is not the EU’s fault but our government’s, for not telling them to go easy.  Nelson, coatless on deck said “Zeal in my country’s service keeps me warm”: for the customs men, is it zeal in a foreign country’s service?

The immediate answer then is just to withdraw all checks and paperwork.

If lawyers descend upon the fine detail of the Protocol and its annexes and read around other implied legislation and demand that border checks be re-imposed, then the Protocol becomes intolerable, going beyond the plain words agreed to. In that case a small amendment to reverse the presumption of risk would serve, which could be a change to the Protocol itself or by a decision of the Joint Committee. It seems excessive though for Articles which are in essence redundant.

The EU should be subdued after their recent misbehaviour, but they might in time cut up rough when they can see that the British government is not going to persecute its on people.

If they demand that there be bureaucracy imposed on trade and it is not being imposed in the ports of the North Channel nor of course on the border, then they have an obvious course open to them: reverse the Protocol. Instead of Ulster being given special access in return for a semi-detachment from the rest of the country, give the Republic of Ireland that access to the British internal market with check at the continental ports. It would make more sense given that vastly more trade passes from Eire to the United Kingdom than between Eire and the continent.


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The UK Internal Market consultation

Little heralded perhaps, but important, the Department for Business, Energy and Industrial Strategy has issued a White Paper entitled “UK Internal Market” and the need for it shows how far we have come, backwards mainly that this is an attempt to fix it.

It is a symptom of the regulatory state that we even have to consider the subjects in the White Paper, but as our commercial life is mired in bureaucracy and unlikely to crawl out any time soon, the effect of that bureaucracy to impede business is being looked at, in the context of a possible fragmentation of rule-making that could stop seamless operations of business across the United Kingdom, as has been enjoyed since 1707, and 1801.

Britain left the European Union, thank goodness, on 31 January this year, and the co-ordinating rules of its Single Market are dropping away. At the same time, those political parties which campaigned to keep powers in Brussels, now demand that those powers be handed to the devolved authorities, so they can make a right hash of it, but more to the point, the paper raises the point that a divergence of standards and licensing regimes would lead to companies’ having to produce different goods or labelling in different parts of the country, or limit their business to one corner of the land.

The worst aspect politically is that devolved authorities, being controlled by hostile opposition parties, will be driven to differ from the rules in England for political reasons and despite the interests of those affected by the rules – businesses and consumers. The paper only hints at that, but we can read between the lines.

It is a paper of 105 pages, largely because it constantly repeats itself, but that should not be harsh criticism, because after the many opening pages of fluff (which I would have written very differently), it comes to the main points for action: a non-discrimination principle and continual input by affected businesses. Both are excellent principles. Both should be used not only to squash future divergent burdens but also existing ones.

Four questions are raised, summarised as:

  1. Should the government seek to mitigate against both ‘direct’ and ‘indirect’ discrimination in areas which affect the provision of goods and services?
  2. What areas do you think should be covered by non-discrimination but not mutual recognition?
  3. What would be the most effective way of implementing the monitoring of the Internal Market and business and consumer engagement and should particular aspects be delivered through existing vehicles or through bespoke arrangements?
  4. How should the Government best ensure that these functions are carried out independently and are fully representative of the interests of businesses and consumers across the whole of the UK?

They are good questions. The fact that these questions even have to be asked is worrying, but they do.

The questions need input from those who understand their own businesses, and by all accounts the government will actually listen to them (which will be a Cummingsesque shock to the Civil Service, if they do not find a way to frustrate it). The White Paper indeed contains examples and quotes from businesses showing that a good consultation has already begun.

There is little time to respond, with observations and even ideas. This should be shaped by the reality of business – I was going to write “and not ideology”, but that is impossible.

These subjects may have to be the subject of more articles on this site, adding to those previously published.

Link to the White Paper

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The Ulster Bridge

Is it then to be a bridge? A tunnel? A floating tunnel? For cars, or trains, or bicycles?

In one of the richest nations of the Earth, such an endeavour is not beyond consideration, but for over a hundred years the idea of a fixed bridge across the North Channel to join Great Britain to Ireland has always been in the ‘too hard’ tray. Now it is being looked at again, and I should emphasise ‘being looked at’ not ‘being done’.

The Channel Tunnel works because it was built with private funds with a view to profit from the services running through it.  Spaffing taxpayers’ money at a project is the best way to ensure wastage, overruns and a poor quality build. The Ulster Bridge or Ulster Tunnel (more of which later) will be too important a piece of infrastructure to leave it in the government’s ham-fisted paws.

Has anyone asked Elon Musk?

The Chinese would whack something across the sea with barely a thought, and hope it does not fall down when a Party official was driving over. We would expect the job to be done properly, the penalty for failure being fines from the Health and Safety Executive or, worse still, financial loss.

It does seem strange that with all the vast engineering projects spanning the world and in fact going  beyond it, all the millions of miles of tunnels, viaducts, cable networks, trans-continental pipelines and buildings that reach the sky raised in merely months, that our own little ditch is not bridged. Many longer tunnels have been built.

It is not as if the idea has not been considered before. In the 1890s there was a serious proposal published for a submersed floating tunnel anchored at Whitehead (south of Larne) and at Portpatrick.  Every generation since has seen ideas come and go. Today we are told to think of a bridge; tomorrow it may be a tunnel.  Engineers tell me that this idea is one which the large civil engineering companies will have as concept pieces in back drawers somewhere, and the sort of thing they hand to trainees as exercises. More than a few back drawers will be rattling open now.

The unique qualities of the North Channel, both natural and man-made, make it a new challenge.  The tunnel beneath the English Channel is just as long as one beneath the North Channel would need to be, but it is a bore largely through sand and under a shallow sea: the North Channel has hard rock and a deep sea trench with possible geological instability. Beaufort’s Dyke right in the course of where a tunnel or a bridge would go, dives to a thousand feet below sea level (although it may be possible to find a point “only” 500 feet down) and, just for further amusement, after the War more than a million tons of unused ordnance was dropped into it: you do not want a million tons of unstable shells and bombs beside the footings or a bridge or above a deep tunnel.

This assumes that the tunnel or bridge would cross the North Channel at the main ferry point, between the east coast of Antrim (or Down) and the Rhinns of Galloway, which is a twenty-two mile crossing (one I have sailed in a dead calm and in a storm). Another route is from the north coast of County Antrim to the Mull of Kintyre. That is so short a distance that I could stand on the Argyll side and watch the cars in Antrim, and the Beaufort Trench is not there. Once there was a ferry (with a Brussels subsidy, naturally) sailing from Campbeltown to Portrush – it closed because there was no custom, and that is the problem with this route – not just that it would wreck two beautiful, peaceful spots, but it is from no commercial place to no commercial place.  Maybe a twelve-mile Argyll-Antrim tunnel would create its own dynamic, but it is just the wrong place.

Back to structures, and I said it was a choice between bridge and tunnel; the mock-up used in the press release has a remarkable variant:  a tunnel from Larne beneath the main shipping lane, emerging in the sea to rise up onto a bridge! That is reminiscent of one of the odder plans for a road crossing of the English Channel, with bridges out into the sea ending in spiral ramps down to a tunnel.

The plan in 1890 was a serious one, for a rail link using a tunnel, a submerged tubular bridge or a solid causeway, or it might be a mixture, and the engineer who proposed it was no dreamy student but the great Luke Livingston Macassey, who created Belfast’s fresh water system, and he had been working on it since the 1860s. An article can still be found somewhere in the archives, and it is recalled in a book ‘Mapping the Railways’ (see below).

It is an intriguing thought: a tunnel carved in the normal way until the sudden 500-foot deep then carried on an undersea bridge. The bridge would be subject to the corrosion of the sea and to the deep-sea currents for which the North Channel is known, but not to the tides or storms, as an exposed bridge would be, and having been tossed about in those storms myself, I would feel more comforted being carried snug beneath them.

Modernity finds solutions for unusual engineering solutions. Those proposing new manned landings of the Moon or a base on Mars have suggested first sending autonomous robots to build substantial accommodation ready for the star-sailors who will follow. If it is possible to have robots build complex structures in extra-terrestrial locations, without needing rest, undaunted by time, then to send them tunnelling beneath the sea and building a causeway across the trench seems no great stretch. If they take twenty years, well, we have been waiting a hundred and fifty already. I am no engineer, but it seems reasonable to assume that if ‘bots could build and shore-up even a narrow tunnel and place rails within it, that provides a transport link that can start earning its keep, and the link necessary to dig a wider tunnel.

As to the unexploded munitions, that is another puzzle. Is there a market for deep-sea mining of the iron and chemicals constituted in those discarded weapons? Here too robots have a place as they may be more disposable than flesh and blood miners and do not have to come up for air.

The economics prescribe that the tunnel or bridge would most probably be for a railway not a road (a foot and cycle tunnel beside it would be appreciated by vigorous travellers, but we didn’t get it in the tunnel to France). A practical point though: the railways of Great Britain and of most of Europe are all of the same rail gauge, 4 feet ​8 12 inches, which is why the Channel Tunnel can enable a train to run from Inverness to Constantinople, but the Irish gauge is 5 feet 3 inches. That then would require a transhipment port at one end or other of the tunnel, or some dual-gauge track to such a node, or tearing up and relaying all the railway lines across Ulster and Ireland, or a curse on both their houses and doing it as an vacuum-tunnel maglev system.

There are many intriguing ideas to be thrown about in the next few years and many dead-ends, but it must be considered.

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Mend the Kingdom – roll up that map

Give me the map there. Know that we have divided In three our kingdom

King Lear, Act 1, Scene 1

If Whitehall is to be tasked with mending the tattered relationships across the United Kingdom, it must first reverse its two-hundred year practice of driving it apart.  It may start by shredding all the maps in every Government office. They are three hundred years out of date.

When Great Britain was united three hundred years ago and more, it was the consummation of a process of unity that had been moving on since the Reformation, and the actual incorporating union of the mediæval kingdoms into one was intended to began a process of integration to the benefit of all. Something went wrong.  That may be the subject of another article on this site shortly. Now though the priority is fixing it.

Firstly, there is no shortage of Scots in the civil service: the service takes the best and brightest, or most complaisant, and none is disadvantaged through having been born far from the din of London. The issue is found in a deeper structure.

Many Whitehall departments have become, since devolution and often before it, mainly England-only, with some responsibilities across the nation. I once asked a high-level mandarin in one such department whether his was a England-and-Wales department with some UK functions, or a UK department with some England-and-Wales-only functions: the result was an embarrassed silence. This equivocal quality in such departments will ensure that the mindset in those departments ends at the Tweed and just has add-ons for Scotland and Northern Ireland (when they remember Ulster at all). That is not serving the residents of Scotland or Ulster with equal consideration.

Furthermore, where functions do legally extend only to England, that paper boundary can become too real, forgetting that there are people beyond it who are affected by the decisions made. Their needs are just as much a part of the responsibilities of a British government department.

Responsibility is the key, not power, for the one does not come without the other, and even if a particular power is for some reason legally limited to one regions there is responsibility for every Briton who is affected by it even those not usually resident in the region in question.

I recall some government guidance which gave (and I believe still does give) details of how to get particular documents signed in England and Wales and how to get them done in foreign countries, but with no hint on having them signed in Scotland or Northern Ireland. My enquiry about this to the office in question was brushed off with the assertion that they are restricted to England and Wales and cannot look at Scotland or Northern Ireland; and this to the extent of pretending they do not exist, even though the rest of the world was considered.

Maps are deadly. There are maps in Whitehall that end at the River Tweed, and others where the mediaeval border is so heavy it looks like an impassable frontier. Others omit Northern Ireland, though it is barely 12 miles of water apart from Great Britain. Such maps discourage those who look at them from thinking beyond. Maps mould the mind.

Shred the maps – all of them. Make a big heap in the courtyard and consign them to the flames. Let no more like that pass the portal.

Wipe the data maps. These are more frequent and pernicious: those with statistics, which show England as an island on its own. Wipe them from every database. No map in government, unless it is of a narrow region, should show anything less than the whole of the United Kingdom (or of the British Isles as that is the spatial reality, and all things must be based on reality). Where a map is used as a graph of statistics, those statistics may well relate only to England or England and Wales, but there will be equivalent statistics for Scotland and Ulster, so include them: the welfare and status of Britons of those parts are equally the department’s responsibility. If they can shy off that responsibility, nevertheless without a full picture of statistics for the whole of Britain, you have a partial and misleading picture. There may be lessons too to be learnt from the wider picture.

As to those hermaphrodite departments; split your teams. There are those whose concerns day-to-day are with a limited area, and they should not then be trusted to do Scotland as an afterthought. Where the responsibility is national, there are no internal borders. There should be maps with no borders to illustrate to those concerned that there is no border, nor has been one for over three hundred years. Borders on maps make borders in the mind, so have none.

Recently Holyrood adopted a law that the Scottish devolved government may not buy any map of Scotland that shows Orkney and Shetland in a separate box. Whitehall should adopt a rule like it: no government office may acquire nor produce any ‘national’ map that does not include the whole of the United Kingdom, nor any map that includes ‘the border’ as anything beyond normal administrative boundaries. That way our governors may lift up their eyes to the full extent of their responsibilities.

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Close the Ulster Bypass

Ulster is poorly served by the government.  The Beeb are not too warm to the DUP’s urging of direct rule.  The norms of language are unfavourable; to ‘impose direct rule’.  Perhaps if the phrase were ‘to re-assume direct responsibility’ it would be better received. The language may be batted about, but the new government must face the immediate reality of Ulster’s position, and their predecessors’ failures to address it.

From 1921 to 1972, Ulster was an autonomous region, with a Governor and a Parliament of Northern Ireland, as if it had been a self-governing colony, and Westminster could practically ignore the place. Its institutions and laws were largely sundered from those of Great Britain and forced to fend for themselves. In 1972, the system collapsed in civil disorder, but instead of abolishing the Parliament and bringing Ulster back into normality, London enacted the suspension of the home-rule state with all powers passed to the Secretary of State, subject to Parliamentary assent to actual law-making, and the temporary became the permanent, until Tony Blair replaced it all with a new Assembly, which has been suspended for some years now.

Since 1921 then, Northern Ireland has been starved of all the advantages that the size of the United Kingdom brings. The old Parliament tried to keep up, but there were natural and financial limits to aspiration – that is the ‘Ulster Bypass’.

Today with the Assembly suspended, civil servants are left to run the show with no political oversight, and thus no motivation for innovation or even getting basic things right.  There is no authority to do anything new.

We moan at idiocies in government in Great Britain, but its vast size provides for every sort of expertise, not always wisely deployed, but there, and technocrats have produced what is effectively a luxury service, and we have come to expect that. Northern Ireland, though it is large in area, has a population which is barely half that of Manchester, and that is a small tax base and human resource.  You would not expect Manchester to run what would be virtually a national government, with all the luxuries and efficiencies that Westminster can command, let alone half of Manchester.

Look at a few things we take for granted in our new, modern state, little things but which hint at what lies beneath.

Three sibling quangos in Great Britain, Historic England, Historic Environment Scotland and Cadw co-operate in best practice. Each has a website backed by a powerful database – the “National Heritage List for England“, “Canmore” and “Coflein“, each with a fast and efficient search function linked to extensive research material with academic references and an interactive Ordnance Survey mapping function. Every listed building or scheduled monument in Great Britain is at your fingertips. The Department for Communities in Northern Ireland has a cumbersome listed building search which has not been updated since 2015 the local government reform; for scheduled monuments and state care monuments – there is a PDF typed list if you can find it.

The Ordnance Survey of Northern Ireland can provide no linked mapping because it is unresourced:  it sells to a far smaller market and so cannot do all that its counterpart in Great Britain does.  I have spoken to OSNI, and the equivalent in Dublin too, and they say the same:  they are small, have few customers and cannot provide the services.  This too then is an effect of the Ulster Bypass.

Then there is the DVLA: a massive organisation sitting in Cardiff serving the whole country, apart from six of its counties, which have to do their own.  When applying for new car insurance I had to give details of my driving licence – and was met with a message the Northern Ireland licences are not acceptable. Why? Well why would a commercial insurer that has spend a lot of cash tying its systems to the DVLA system want to bother spending more to adapt to a minor registry?  Thus Ulster is left out; disadvantaged because of a bureaucratic separation.

It would take a few lines of code for the DVLA to serve Northern Ireland. It would take little adjustment for the Ordnance Survey to take on six more counties, or for the NHLE or Canmore to take care of Ulster’s historic data, or for the Department of Communities to farm the historic estate out to the great resources wielded by English Heritage (‘Ulster Heritage’ perhaps) but without political direction and a willingness to dig up the Bypass, Ulstermen will be left behind, unable to dream of the conveniences those in the rest of the country take for granted.

Lobbing a wad of cash will not help if the structure is not there:  the structure does exist though in Great Britain, and can be deployed to serve the rest of the nation, namely Ulster.

I can give petty examples as symptomatic of the Ulster Bypass in operation and there could be many more.  Boris Johnson has given himself the title Minister for the Union, as in that role he should take these in matters in hand, and close the Ulster Bypass – otherwise Ulstermen will remain the poor relation in one of the richest countries in earth.

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