Protocol on Ireland/Northern Ireland: Follow-up Report (European Affairs Committee)
Lord Jay of Ewelme Excerpts(2 years, 6 months ago)
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Lord Jay of Ewelme
That the Grand Committee takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Follow-up Report (2nd Report, HL Paper 57).
Lord Jay of Ewelme (CB)
My Lords, I rise to move the Motion standing in my name on the Order Paper, one of two Motions which invite the Grand Committee to take note of recent work by the Sub-Committee on the Protocol on Ireland/Northern Ireland, which I have the privilege to chair. The first of the reports was published more than a year ago, at the time when the UK’s relationship with the European Union was not good. The second, and most recent, report was published in an altogether more positive climate, following the agreement in February this year on the Windsor Framework between the UK and the EU. Given the changed political landscape since the beginning of this year, it is this most recent report that will be the focus of my remarks this afternoon.
The Government replied to the report earlier this afternoon. I am very grateful for such a speedy response, but I am afraid that I have not yet been able to study it in all the detail that I am sure it deserves. I look forward to doing so after this debate, and it will no doubt inform the Minister’s reply to the debate later this afternoon.
The sub-committee’s membership includes a wide range of views both on the constitutional status of Northern Ireland and on the protocol and the Windsor Framework. None the less, we once again succeeded in agreeing our report unanimously and by consensus. I believe this gives added weight to our conclusions and recommendations.
The Windsor Framework inquiry received many oral and written submissions, including from the British Government, business representatives, trade bodies, academic, legal and trade experts and representatives of community organisations. The sub-committee also visited Brussels in May and had a number of useful and productive discussions, including with Vice-President Šefčovič and his team. I congratulate Maroš Šefčovič on his new and expanded responsibilities, but I hope that he will not lose sight of his continuing responsibilities for relations with Great Britain and Northern Ireland.
On the basis of the wide-ranging evidence we received, we concluded that the Windsor Framework was an improvement on the Protocol on Ireland/Northern Ireland as originally negotiated. Indeed, I would say it is a marked improvement. Nevertheless, it is evident that problems remain. Business representatives and other stakeholders have welcomed the agreement on the Windsor Framework by the UK and the EU and the potential it provides to resolve problems sensibly in future. They particularly highlighted the benefits of the provisions of the Windsor Framework on movement from Great Britain to Northern Ireland via the green lane of retail goods, agri-food produce, including chilled meats, parcels, pets and human medicines. However, for some businesses we heard that the processes under the Windsor Framework would be more burdensome than under the protocol as it has operated with its grace periods and easements. While the green lane will benefit large retailers in particular, some retailers and some other sectors may have to use the red lane.
The report analyses evidence from witnesses on the overall impact of the Windsor Framework. Witnesses describe the technical and legal complexity of the Windsor Framework and the confusion that may arise from the difference in emphasis between the UK and the EU in their description of some of its provisions. We concluded that the UK and EU together really must publish a comprehensive summary of the Windsor Framework provisions, including the consolidated text of the original protocol as amended by the Windsor Framework. Perhaps the Minister can confirm that the Government will indeed do so.
Chapter 3 of our report focuses on the movement of goods, including the red and green lanes and the movement of agri-food, with the attendant requirements for new labelling. We endorse the calls for more clarity about the new arrangements for movements of goods between Great Britain and Northern Ireland.
Our report was in its final stages of preparation when the Government published additional guidance on 9 June. That guidance and the subsequent guidance of 28 July will be the subject of a follow-up committee evidence session next week.
Chapter 4 looks at human and veterinary medicines and the movement of pets. We noted the widespread welcome from the pharmaceutical industry for the Windsor Framework’s provisions on human medicines, which are seen as a sustainable solution to the problems with medicine supply to Northern Ireland, albeit with calls for the Government to intensify their engagement with stakeholders as the pharmaceutical industry prepares for the start of new measures on 1 January 2025.
While welcoming the extension of the grace periods for veterinary medicines until the end of 2025, the veterinary, farming and agri-food sectors all expressed serious concerns that a mutually agreed solution has yet to be reached. The report urges the Government to intensify their engagement with the EU and industry to identify a sustainable solution as a matter of urgency, to avoid a cliff edge in 2025. I hope the Minister will be able to tell us what progress has been made since the report was published.
I do not want to go into detail on VAT, excise duties or state aid, important though they are. I do want to say, as chapter 6 of our report notes, that business representatives stressed to us that regulatory divergence, whether between Great Britain and Northern Ireland or between Northern Ireland and Ireland, remains their number one concern. The report urges the Government and the EU to undertake substantive assessments, for all planned legislation, of the impact of regulatory divergence on Northern Ireland.
The committee also renewed its call, made repeatedly since March 2022 with the support of Northern Ireland stakeholders, for the Government to create and maintain an up-to-date record of regulatory divergence and its impact on Northern Ireland. The committee simply fails to understand why this is apparently either too difficult or unnecessary, or both. Perhaps the Minister can set us straight there, too.
Chapter 7 examines the democratic deficit occurring under the protocol and the extent to which it was addressed by the Windsor Framework, not least by the new Stormont brake. The Stormont brake divides opinion: some regard it as a genuine and innovative attempt to give Northern Ireland politicians a voice on the application of EU law to Northern Ireland, while others argue that the stringent conditions for its use and the limited scope of its application mean that it will have negligible impact. Time will tell us how significant it will prove to be in practice.
Chapter 8 of our report examines the role of the Court of Justice of the European Union, concluding that there has been no substantive change.
Chapter 9 analyses the proposals in the Windsor Framework on enhanced dialogue and engagement, both between the UK and the EU and with Northern Ireland stakeholders. The proposals for enhanced dialogue between the UK and the EU and engagement with Northern Ireland stakeholders are of course welcome. However, the structure for bilateral dialogue between the UK and the EU is more developed than the engagement with Northern Ireland, where detail remains lacking. If such engagement is to give Northern Ireland stakeholders a really meaningful voice, as it must, the UK and the EU need to ensure that it is properly structured and resourced and has real substance.
Finally, as the continued suspension of the power-sharing institutions demonstrates, political tensions in Northern Ireland over the protocol and the Windsor Framework remain acute. In welcoming the Windsor Framework but focusing on the work still to be done, we acknowledge the importance and the difficulty of resolving these issues to the satisfaction of all communities in Northern Ireland. I beg to move.
Lord Jay of Ewelme (CB)
My Lords, I am very grateful to the Minister for replying to the debate and to all those who took part. The debate has shown a wide and deeply held difference of views on the Windsor Framework, but I was also struck by the arguments for compromise, stability and substance. All three of those will be needed if we are to find a solution to current problems, which will be, as our report said, for the benefit of all the people of Northern Ireland.
Beyond Brexit: Institutional Framework (EUC Report)
Lord Jay of Ewelme Excerpts(4 years, 3 months ago)
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Lord Jay of Ewelme (CB)
My Lords, I speak today as a member of your Lordships’ European Affairs Committee and chair of the Sub-Committee on the Protocol on Ireland/Northern Ireland.
I want to focus my remarks today—it is of course the centenary of the signing of the Anglo-Irish agreement on 6 December 1921—on Northern Ireland. Although the reports before us on services and the institutional framework are extremely important, they are of less relevance to Northern Ireland than the report on the trade of goods, so most of my remarks will relate to that report. However, I must say, the focus is rather different for Northern Ireland and Great Britain than for the United Kingdom and the European Union. How do we ensure that there is no physical border between the Irish Republic and Northern Ireland without leading to an unacceptable border between Great Britain and Northern Ireland?
The sub-committee on the Northern Ireland protocol was established in the spring of this year as a sub-committee of the European Affairs Committee, chaired by my noble friend Lord Kinnoull, so we are comparatively new. The members of the committee are, however, immensely experienced. A number of them are very active in today’s politics in Northern Ireland, and they span a wide range of political views. The committee published its initial report in July; it was debated here in the Moses Room in September. It was agreed by unanimity. That unanimity did not, of course, in any way disguise the different political views in the committee, but it did show that all members of the committee, whatever their political views, believe that the Government’s focus in negotiations on the protocol must be on the effects on all communities in Northern Ireland.
Since last summer, the committee has continued its scrutiny of the different provisions of the protocol and its operation. It is worth stressing that the protocol is indeed in operation, even if the implementation of certain provisions of it have been deferred. We looked first at Article 2 of the protocol, on individual rights. This is an important part of the protocol, even if it is often neglected through the focus on trade provisions. It is less relevant, however, to today’s debate, although I am glad that the Government have just replied to the committee’s letter on the subject, which the committee will consider later this month.
We have also considered the provision of medicines to Northern Ireland. This is an issue that affects everyone in Northern Ireland, regardless of their views on Brexit, the protocol or the constitutional status of Northern Ireland. No matter what your political view, if you cannot get the medicines you need, you are vulnerable. The committee took evidence from representatives of the pharmaceutical industry in October and wrote to the noble Lord, Lord Frost, last month. In its letter, the committee highlighted industry concerns over the cost and operational impact of the protocol; the scale and very real risk of product withdrawal; the limited scope for the cross-border supply of medicines on the island of Ireland; the analysis of the impact of the extension of the grace period for medicines; the EU’s non-paper on medicines; and the proposals in the Government’s Command Paper. The committee noted industry’s views that, ideally, medicines should be removed from the scope of the protocol, but with the important proviso that this or any other solution must be on the basis of agreement between the United Kingdom and the European Union.
I note recent comments by Vice-President Šefčovič expressing confidence that a solution on medicines can be reached, possibly before Christmas. This is a crucial issue for the people of Northern Ireland. It would be helpful to have the Minister’s views on the position now in the talks between the United Kingdom and the European Union, and on the Government’s response to Vice-President Šefčovič’s statement that the EU is ready to take unilateral steps to address the issue if necessary.
Two other issues have been at the front of the committee’s minds this autumn: Article 16 and the democratic deficit in Northern Ireland. The committee’s work this autumn has been against the background of the Government’s stated willingness to invoke Article 16 if necessary and their assessment that the circumstances exist to justify doing so. Last week, the committee held an evidence session with a panel of distinguished legal experts on the mechanics of triggering Article 16, the legal consequences of doing so and relevant precedents in other international agreements. The committee also explored other legal powers open to the UK and the EU to address the problems to which the protocol has given rise, the legal status of the grace periods now in operation, the implications of Article 10 on state aid and the role of the European Court of Justice. The committee will be looking at these issues further in the coming weeks.
Meanwhile, does the Minister agree that there is a marked gap between the likely consequence of Article 16—more negotiations between the UK and the EU, if in a rather different context—and the widespread assumption that invoking it will somehow amount to an abrogation of the protocol as a whole?
Finally, the democratic deficit under the protocol, by which EU legislation applies to Northern Ireland without its explicit consent, and various proposals to enhance Northern Ireland’s voice and influence both within the United Kingdom and the European Union, were key themes of the committee’s July report. In October, the Commission published a non-paper on engagement with Northern Ireland stakeholders and authorities. The committee subsequently held a virtual seminar on the democratic deficit with politicians representing all viewpoints, from Westminster, Stormont, Dublin and the European Parliament, as well as academic experts and business representatives. The committee is continuing its interparliamentary engagement through meetings with the chairs and members of equivalent committees in the Northern Ireland Assembly and the Parliament in Dublin.
A less visible but extremely important part of the committee’s work in the context of the democratic deficit is the scrutiny of EU legislation applying to Northern Ireland under the protocol. I was much involved in scrutiny work while we were a member of the European Union, but nothing then was as important as looking hard now at the Explanatory Memoranda provided by the Government on directives, regulations and delegating implementing regulations that apply to Northern Ireland across a wide range of policy areas and to which, as I have said, the Northern Ireland authorities have not explicitly consented.
Our correspondence with Ministers and their replies are published on the committee’s website and copied to the chairs of the relevant committees in the Northern Ireland Assembly. We are grateful for the valuable feedback that we have received from them and from others such as the Ulster Farmers Union.
The quality of Explanatory Memoranda from government departments has improved since I drew the attention of the noble Lord, Lord Frost, to this issue in a debate here a few weeks ago. It is, however—and let me be polite—still variable. This is not an academic exercise. I know that departments are busy, but this issue is of serious concern to members of the committee, particularly those from Northern Ireland. The Government surely have a duty to provide a full account to Parliament through our committee of the implications of each new or amended law that applies to Northern Ireland. Can the Minister give an assurance that the Government will redouble their efforts to ensure that?
Protocol on Ireland/Northern Ireland (EUC Report)
Lord Jay of Ewelme Excerpts(4 years, 6 months ago)
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Lord Jay of Ewelme (CB)
My Lords, it is a pleasure to follow my noble friend the Earl of Kinnoull. The appointment of a dedicated sub-committee on the protocol was a welcome and important step, and it is an honour to chair it. Its appointment has enabled the House to take advantage of a formidable range of experience in Northern Ireland affairs in your Lordships’ House, much of which is around us today. I am delighted that many members of the committee will be speaking in this afternoon’s debate.
The sub-committee’s membership includes strong and divergent views, both on the constitutional status of Northern Ireland and on the protocol itself, yet we were united in our determination to agree a report unanimously and by consensus. We did not consider that our task was to argue for or against the protocol itself, but rather to scrutinise its operation in an objective and evidence-based manner. That is what we have tried to do, and we hope that that gives added force to our conclusions.
The report takes account of evidence given to the sub-committee by the Minister. We were very grateful to hear from him, and we trust that he will be willing to appear before us again in the future. The report also takes account of oral and written evidence from business, community and civil society representatives, political parties in Northern Ireland, academic and political experts, and the Irish and EU ambassadors in the UK.
The report is billed as an introductory report by the protocol committee, which first met on 21 April. It endorses the six key elements of the committee’s remit, as set out in the Liaison Committee report: document-based scrutiny of new or amended EU legislation within the scope of the protocol; scrutiny of the implications of relevant domestic UK legislation and policy for Northern Ireland; scrutiny of the Northern Ireland-related work of the governance bodies established under the UK/EU withdrawal agreement; monitoring the protocol’s political and socioeconomic impact on Northern Ireland; reviewing the impact of Brexit and the protocol on the UK/Irish bilateral relationship; and developing interparliamentary dialogue in relation to the protocol, including with the Northern Ireland Assembly and the Irish Oireachtas.
I emphasise in particular the importance of the committee’s scrutiny of EU legislation as it applies to Northern Ireland. We are no longer able to examine draft legislation round the EU’s council table, so parliamentary scrutiny of the legislation that will affect Northern Ireland really matters. I am grateful to the noble Lord, Lord Frost, for recognising the importance of comprehensive and comprehensible explanatory memoranda.
Chapter 2 gives an account of the negotiation and implementation of the protocol and of developments since it came into force on 1 January. The committee identified five interlocking problems or failures by the Government or the EU that have contributed to the tensions that have arisen: lack of transparency about what was agreed; lack of readiness, notwithstanding the best efforts of business, for the protocol’s provisions to be implemented; lack of balance and understanding of the protocol’s impact, in particular on Northern Ireland’s relationship with the rest of the UK; lack of flexibility in the application of the protocol; and a lack of trust between the two sides.
Chapter 3 sets out the economic impact of the protocol. The initial negative impact of the protocol in the first weeks of its operation had many causes and was more limited in scope than some media reports would have us believe, but businesses were undoubtedly hindered by the lack of clarity in advance about the protocol’s operation. The long-term impact of the protocol on trade flows is not yet clear, but there are early signs of a growth in north/south trade. On the other hand, businesses told us of repetitive and disproportionate new logistical processes for goods moving from Great Britain to Northern Ireland. We heard serious concerns about the impact of the expiry of the grace periods and the absence of mitigating measures, and fears that businesses in Great Britain will withdraw from the Northern Ireland market because of the actual or perceived administrative burden of the protocol. Yet we also identified potential economic benefits under the protocol, given Northern Ireland’s unique access to both the UK and the EU single markets, including as a destination for foreign investment. However, political stability is a prerequisite if such benefits are to be fully recognised.
Chapter 4 sets out the political and social impact of the protocol. We acknowledge the destabilising impact of first Brexit and then the protocol on the political situation in Northern Ireland and on the delicate equilibrium encapsulated in the Belfast/Good Friday agreement as questions of borders and identity have once more come to the fore. We heard about the concerns of the unionist and loyalist communities that Northern Ireland’s place within the United Kingdom has been undermined by the protocol. Yet the unrest and sense of alienation in loyalist communities has several deep-seated causes, and there are also deep concerns over the democratic deficit at the heart of the protocol whereby significant aspects of EU law apply to Northern Ireland without its consent. While that deficit can be mitigated, it cannot be eliminated. This is a difficult issue, to which the committee will return later in the autumn. We also stress the importance of meaningful engagement by both the UK and the EU with the people and communities of Northern Ireland, including women and young people who have felt sidelined in discussions so far.
Chapter 5 of our report considers mitigations and solutions. We called on the UK and the EU, in a renewed spirit of urgency, partnership and trust, to agree practical solutions to ensure the proportionate application of the protocol in order to meet the commitment that it should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland. Business leaders and others proposed over 20 practical mitigations, including a UK-EU SPS veterinary agreement. We also called for measures to maximise Northern Ireland’s influence both within the UK and with the EU, and stressed the key roles to be played by the Northern Ireland Executive and the intergovernmental institutions established under the Belfast/Good Friday agreement.
Some witnesses argued that the disruptive effects seen since the protocol came into force already justify the use of the safeguarding mechanism in Article 16. Others argue that any unilateral action by either side had destabilising political and economic consequences. In any event, Article 16 is not a means to abandon the protocol, and is a measure underpinned by an obligation to continue dialogue to resolve the issues of concern. It would surely, therefore, be preferable for both the EU and the UK to seek to identify mutually acceptable solutions.
Our report also acknowledged the principled opposition of many in the unionist and loyalist communities to the protocol and the alternatives that some of them have put forward; yet, for many nationalists and republicans, the protocol is a necessary and the only means to avoid a hard border on the island of Ireland. We stressed that the UK and the EU had an obligation both to consider alternatives and to work together to seek resolutions within the protocol.
Our report was agreed a matter of hours after the Government’s Command Paper was published on 21 July. It does not therefore take account of the Government’s specific proposals. The committee’s intention is to scrutinise the Command Paper and the EU’s response in the coming weeks as talks between the two sides continue and, we hope, make progress. In that context, I note the Minister’s announcement last week that the current arrangements for the protocol will continue and that the grace periods will be rolled over, and the European Commission’s response that no new infringement procedures will be opened for now. We all hope that this opens the way for constructive discussions between the UK and the EU, but the gap between the two sides remains large. The cliff edge has, if you like, been replaced by a slippery slope.
What updates can the Minister give us today on the discussions that have taken place since the Command Paper was published? How long can those discussions realistically continue? What assurance can he provide that the opportunity that this breathing space has provided will not be wasted and that both sides will explore the room for compromise that will be necessary if agreement is to be reached?
I finish by reiterating the final conclusion of our report:
“addressing the issues of conflicting identity that first Brexit, and then the Protocol, have brought to the fore seems for the moment an insoluble problem. That was also true of the political situation in Northern Ireland during the Troubles. But through a slow and painstaking process led by political leaders in Northern Ireland and successive governments in London and Dublin, the peace process took root and flourished, leading to the Belfast/Good Friday Agreement and the subsequent steps towards a power-sharing arrangement … This process took time, patience, dialogue, and most of all trust. The same is true in addressing the problems that Brexit and the Protocol present for Northern Ireland. There is therefore an urgent imperative for all sides to make concerted efforts to build trust by recommitting themselves to that process of dialogue, repairing the damage caused to relations across these islands during the past five years, in the interests, as the Protocol rightly acknowledges, of communities in both Ireland and Northern Ireland.”
Lord Jay of Ewelme (CB)
I too am grateful for all those who have taken part in the debate this afternoon. I am grateful too, to the noble Lord, Lord Frost, for the answers he has given so far. I look forward to further answers in response to the committee’s report in the days to come. It has been a fascinating debate and it shows that you can discuss even the most difficult issues—and there are some pretty difficult issues here—with calmness, a certain dignity and, from time to time, a historical aperçu, if I may use that expression.
The committee will be looking at some quite tricky issues in the months ahead. Ahead of that, I have taken very careful note of the Gypsy’s warning issued by the noble Lord, Lord Empey.
Northern Ireland Protocol
Lord Jay of Ewelme Excerpts(4 years, 8 months ago)
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Lord Jay of Ewelme (CB) [V]
My Lords, I am grateful to the Minister for giving evidence on the protocol last week to the committee that I chair. We greatly look forward to future such meetings. We will, of course, study the proposals and the White Paper carefully. Meanwhile, I have one question for the Minister. He spoke about trust. Could he confirm that the Government will do all they can to build—or, perhaps I should say, to rebuild—the trust between the British Government, the European Union and the Irish Government that is essential if we are collectively to find a resolution to the protocol that is in the interests of all communities in Northern Ireland and that they profoundly deserve?
Lord Frost (Con)
My Lords, I very much agree with those comments. I could spend time, but will not, looking at the origins of this situation of mistrust and why it has been established. I do not think it is helpful to do so today; we are looking forwards and have to deal with the situation as it is. Our very clear proposal to proceed by negotiation, agreement and discussion will, we hope, begin to help re-establish some of the trust that it seems is lacking on both sides.
House of Lords Appointments Commission
Lord Jay of Ewelme Excerpts(5 years, 2 months ago)
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The Lord Speaker (Lord Fowler)
I beg your pardon. I am so sorry; I just got carried away. We will continue with the noble Lord, Lord Jay.
Lord Jay of Ewelme (CB) [V]
Thank you, Lord Speaker. I declare my interest as a former chairman of HOLAC. Its advice was accepted by all Prime Ministers, from Tony Blair to Theresa May. If its advice is discarded, the system pretty quickly falls into disrepute. Does the Minister agree that the Appointments Commission should be seen as a creature of this House and that its chairman and members should be chosen by this House?
Lord True (Con)
My Lords, many will reflect on the matter that the noble Lord raises, but I think it is dangerous for this House to assert the right to decide who should or should not be its own Members. That is a constitutionally strange place for an unelected House to go. I repeat that the Prime Minister said in his published letter that he gave very careful consideration to the points raised in the advice of the House of Lords Appointments Commission in the case referred to today, and weighed them against other factors. The Prime Minister will always give close attention to the commission’s careful and considered advice.
EU: Future Relationship
Lord Jay of Ewelme Excerpts(5 years, 6 months ago)
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Lord Jay of Ewelme (CB) [V]
My Lords, it is always a pleasure to follow the noble Lord, Lord Bowness.
I hope that the negotiations succeed and I am glad that Michel Barnier is in London today to push them along. I cannot believe that either side would willingly allow them to fail. For the Government to do so, and to heap more difficulties on an economy already reeling from Covid-19, would be the height of folly. After the ferocious blame game that would surely follow, the more sober commentators and historians would blame both sides for a massive failure of statesmanship—surely not the legacy that any Prime Minister would seek.
There are of course difficulties still to be overcome, particularly, though of course not exclusively, Ireland. For many of us, even before the referendum, Ireland has always seemed the most difficult issue of all. That is why the EU Committee’s first report after the referendum, which I launched at a press conference in Dublin, was about Ireland. The dilemma is simple: you can have a border between the north and the south, risking violence and intimidation with which a depleted Northern Ireland police force would have difficulty dealing—for which, let there be no doubt about this, both sides would be blamed—or you can have a border between Great Britain and Northern Ireland, which would damage the integrity of the United Kingdom. Let us hope that the keenest minds in Whitehall are working with their Irish counterparts and the EU to find a way through. I confess that I cannot easily see it. However, to do anything to jeopardise the Good Friday agreement would be folly.
The worst possible course would be to go back on a treaty that the Government signed with much aplomb less than a year ago and, in doing so, to break international law. That would not solve the problem of the Irish border, but threatening to break international law, and saying quite openly in the House of Commons that that is the Government’s intention, raises an issue far larger than Brexit, and no midnight compromise would make any difference to that. It is the threat to break international law because it happens to suit us that puts us on the same level as countries that we have sought and will seek to influence. Such influence relies on trust, and it is trust that is vanishing. Threatening to break international law does nothing to advance Brexit but it seriously damages our pretensions to branch out beyond Brexit and find an influential role as global Britain—a real and depressing double whammy.