12 May 2022

The Queen’s Speech

Brexit blues.

By Robert Kilconner

Much of the commentary on the Queen’s Speech dealt with its constitutional significance.  The Queen being incommoded, it was read by the Prince of Wales in the presence of the Duke of Cambridge. That is not a passing on of authority. There is no Regency and the throne on which the sovereign normally sits was not present. Nonetheless it was a sign that things are moving on and an opportunity for Charles to be seen doing “kingly things” by the nation.  All very sensible no doubt but the day’s real constitutional points, both in the speech and out of it, dealt with unresolved Brexit issues.

The most important of these is the Northern Ireland Protocol and the sabre rattling by the Foreign Secretary threatening unilateral action. The Protocol, readers will recall, was designed to square a particularly awkward circle. The Good Friday agreement forbids tariff barriers between Northern Ireland and the South. As the South is part of the EU this would have enabled goods to pass from Great Britain to Northern Island, these being one country, and then on from Northern Ireland to other EU countries under the rules of the EU Market. That would have avoided the tariffs due had the goods moved direct and also provided a route under which UK goods such as sausages, now prohibited from entering the EU, could do so on the sly – increasingly unacceptable to the EU as differences in food standards et cetera increase.

The Protocol dealt with this by restricting the movement of goods from the rest of the UK to Northern Island and providing that standards applied in Northern Island have to comply with EU rules. Sensible though that might sound, in principle it has given rise to a number of practical difficulties. For example: if certain sausages and processed meat did not meet EU criteria they could not be sent to Northern Ireland to be devoured by the hungry members of the DUP. Cutting off links of this sort could damage the North’s cultural identity as part of the UK and ultimately result in it choosing to leave and to unite with the South. That at any rate seems to be the view of the DUP.

The Government answer to this is the obvious one. If an exception was made for goods which were to be consumed in Northern Island, they could be shipped into that country without risk to the purity of the European market and without any risk of the diet of the DUP being improved. Fair enough, you might think, but Brussels is wary of it. They would like to see the goods which could be shipped to the North restriction-free on the basis that they would be consumed there restricted to medicines and goods (presumably such as sausages) which play a part in the identity of the Northern Irish community.

One advantage of the EU’s approach to this is its potential entertainment value. The European Court of Justice is not known for humour and its judgement as to whether sausages were an important part of the cultural identity of the North could be an enjoyable read. Still, one would have thought that the UK’s proposals were a sensible solution perhaps on the basis that the court which oversaw them included members of the ECJ and English judges. If they were real goodwill, something could be done on this basis but with the DUP, no longer the democratically elected government of Northern Ireland, using its position under the Good Friday agreement to stir the pot it looks a long haul.

The other striking post Brexit measure, one in the Speech itself, is the proposal that ministers be given powers to disapply inherited EU law through regulation rather than repeal. It will be recalled that, following Brexit, existing EU rules remained in place until action was taken to change them and the Government’s reason for allowing that change to be by regulation is the sheer volume of work to be done. That is understandable, of course, provided that everyone agrees that the EU rules should go. However, there must be a risk of it spilling over to material and contentious changes in the law which do not get debated in Parliament.

One day, I suppose, there will be a speech from the Throne which does not refer to Brexit at all. It still seems very far away.

tile photo: Phil Hearing on Unsplash