In December 2020, Michael Gove and Maros Sefvocic, on behalf of Britain and the EU, agreed a deal amending the operability of the Northern Ireland Protocol.
In June last year, the EU agreed an extension to the grace periods for chilled meats over which it had threatened legal action three months earlier. “I’ll let you in on a secret,” Sam Lowe, a trade expert, wrote recently: “everyone, including on the EU side, knows that these grace periods and derogation are not going anywhere”.
And in April, the EU changed its own law to ensure that medicines entering Northern Ireland from Great Britain will not need additional labelling or testing.
That’s three slices of proof that the UK and the EU are more capable of resolving difficulties with the Northern Ireland Protocol when they put their minds to it. You broke it, you own it? Both parties own the Protocol. Both can ease its workings. So what’s the problem?
Let’s start by agreeing that the EU doesn’t feel it owes Boris Johnson any favours – even if it doesn’t view the Protocol as, in Dominic Raab’s famous accusation, “the price the UK would pay for Brexit”.
It sees no reason to hand the UK a competitive advantage: hence standoffs over standards and regulation. This would be all very well were the rows about the Protocol a simple matter of disagreements between the Government and the EU.
However, through the mass of detail about trusted traders, VAT and subsidy rules thrusts the mighty ship of the Belfast Agreement.
It is hard to argue with the Government’s view that the Protocol has turned out to be incompatible with the Agreement. There is the legal dimension. That the Protocol has been found to be in conflict with the Act of Union suggests that the status of Northern Ireland has been changed contrary to Section 1 iii) of the Agreement.
Or, if that doesn’t persuade you, there’s the political dimension – for which we must turn to Johnson’s emollient Belfast Telegraph essay last month.
As he pointed out, many unionists object to the Protocol, so those they elect are boycotting Northern Ireland’s institutions, which makes the operation of Strand One of the Agreement impossible. This takes one to a final dimension: the spirit of the Agreement.
I will concede that this ghostly presence is incompatible with a hard land border if others will concede that it is also incompatible with a hard sea border.
As matters stand, the land border is soft enough for armed republicanism to gain little traction, and the Protocol should allow a sea border enough to keep armed loyalism in the same condition, plus unionists in Northern Ireland’s government.
That would honour the spirit of the Agreement, which translates as: “let’s keep the show on the road”. But the EU is preoccupied with lighting fires beneath the Prime Minister’s feet, and so risks setting the Province ablaze.
No wonder the Government is urgently seeking a solution. It comes in the form of a Bill that would create the conditions for the disapplication of chunks of the Protocol. Were these bits triggered, would some EU states and the Commission press for a hard border, or controls at Ireland’s own EU borders, to protect the internal market?
Presuming that the Irish Government would take no such action, and making the further assumption that any republican backlash would be containable, I turn to legalities.
I’m unmoved by lectures about the sanctity of international law from the EU – itself a serial breaker of such law over World Trade Organisation rules, “flouting rulings on GMO crops, hormone beef, and Airbus subsidies,” as Ambrose Evans-Pritchard has pointed out. Or from the green jersey Democrats in Congress.
But three points apply here. First, Britain must act in its own interest in the last resort, just as the EU itself does. Nonetheless, second, there may be a reputational penalty to pay for doing so.
And, third, whether there is or not, the worst of all worlds would be to threaten to take action, be pilloried in the meantime for flouting international law …and then not be unable to act at all, because your domestic situation is so weak.
This is the position that Johnson may now find himself in. On paper, he has a majority of about 80. In practice, two in five of his own MPs have no confidence in him.
He may survive the autumn, and its Privileges Committee inquiry into whether he misled the Commons over Downing Street parties, but it’s unlikely. He may then go on to win the next election with a workable majority, but that’s unlikely too.
I didn’t support last week’s no confidence move against him, believing that the case against him (he can’t run a coherent government) was met by the case for (he has sustained no major policy defeat).
But what has now done can’t be undone and, since then, the briefing and leaks about whether the Northern Ireland Protocol Bill will keep or break international law has been anarchic. Rishi Sunak and Michael Gove want one thing. The European Research Group wants another.
Then there is Liz Truss, with her leadership ambitions. So the Prime Minister faces prospective revolts over the Bill from his backbench left, right – or both at once.
And with no guarantee of the DUP being lured back into government. Threats to break international law proved unsustainable last time, given the outcry from the Tory backbenches. The fate of a Bill that may be in the same ball park is uncertain.
And that’s before one factors in the Lords, the courts and delay before the Government could use the Parliament Act to force the Bill through, assuming that it’s then in a position to do so anyway.
The durable solution to the Protocol is to do what’s been done before: get a deal. That might mean dangling before the EU a gain that it wants, like the defence and security deal it was denied during the Brexit negotiations. But such a gambit is unlikely to work for this government.
Crudely but simply, the EU thinks that it’s got Johnson where it wants him, which is not all that far from where Theresa May was before her administration collapsed. Authority badly battered; leadership under siege.
It is unwilling to offer him any concession that it can save up for a successor. So it is that the EU’s rapacity and his colleagues’ fervour are being fed by Johnson’s weakness – though I don’t blame him for signing the Protocol, which ought to be workable, as we have seen, with enough EU co-operation and goodwill.
As I write, the Prime Minister looks more likely to have bought off the European Research Group than the Tory champions of international law.
His gamble seems to be that the mere publication of this Bill, the compatability of which with that law is contested, will be enough to persuade the DUP to re-enter government in Stormont. After which, he will dare the EU to make concessions without which the Executive may collapse again – and if they won’t, then trigger the Bill’s provisions.
Churchill said that jaw jaw was better than war war. His biographer’s bet is that bluff will work better than either. I hope he is right, but the odds are not in his favour.
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Author: Paul Goodman
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