Britain has a duty to ditch the Protocol. The Government must do whatever it takes
If Remainers try to hold things up, the Tories should create new peers
The Northern Ireland Protocol has smashed like a wrecking ball through the intricate politics of Ulster. The assembly election campaign is now in full swing there, but, as things stand, there is no chance of power-sharing being restored. Not one Unionist MP or MLA regards the current deal as acceptable, and you can see why.
The Protocol, agreed at a time when MPs were blocking Brexit, and so destroying the Government’s negotiating position, detaches Northern Ireland from Great Britain for regulatory and tax purposes. The Appeal Court in Belfast has just ruled that, in some regards, it takes precedence over the 1800 Act of Union itself. The delicate web of compromises on which the 1998 Belfast Agreement rests – compromises that Unionists accepted with difficulty, involving, as they did, the release of IRA prisoners and the abolition of the RUC – has been shredded.
Northern Ireland is sundered from its largest market (it sells more to Great Britain than to Ireland, the rest of the EU and the rest of the world combined). It cannot benefit from, for example, the scrapping of VAT on solar panels, heat pumps and insulation announced last week by Rishi Sunak, because Brussels continues to set parts of its tax policy. As Lord Dodds, the DUP veteran, puts it, “the Protocol’s assault on basic principles of democracy is so breathtaking as to be scarcely believable in a modern society”.
None of what I have written is especially controversial. The Government declared as long ago as July that the conditions that justified a unilateral suspension of at least parts of the Protocol had been met. Boris Johnson went so far as to describe the deal as “insane”. The EU has had ample opportunity to accept amendments that would meet all its stated goals, but isn’t budging. So, what are we waiting for? The explanation offered by most pundits doesn’t stack up. They argue that the Ukrainian war has altered the context. A united West – North America, Britain and the EU – is pulling together in defence of liberal values. Now, we are told, is not the time to pick a fight with the EU.
This analysis fundamentally misunderstands what is being proposed. Britain has always made clear that it will ensure the EU can preserve the integrity of its market without new border infrastructure in Ireland. It has spent £500 million helping Northern Irish businesses adapt, and is spending a further £150 million on the digital certification of agri-foods. It has offered European officials unprecedented access to its customs data. All it asks is that other aspects of the Protocol be wrapped into the Trade and Co-operation Agreement (TCA), the deal signed at the end of 2020, which governs UK-EU relations as a whole.
It is hard to see on what grounds the EU can object. The TCA is a comprehensive document, going well beyond normal trade deals in, for example, its “level playing field” clauses. How can Brussels argue that these arrangements are good enough for every other aspect of UK-EU trade, but not for that minuscule portion that takes place across the Irish border? (It cannot be repeated too often that this trade accounts for less than half of one per cent of the EU’s imports, but that Brussels carries out about 20 per cent of all its checks on goods entering Northern Ireland from Great Britain.)
In any case, the Protocol was intended to be transitional. The EU refused to negotiate it as part of the general settlement, insisting that it had to be agreed under Article 50, the exit clause. Agreements made under Article 50 can be superseded by a permanent settlement, which is what the TCA is. Indeed, Article 13(8) of the Protocol expressly foresees its replacement by a “subsequent agreement”.
Dropping the most obviously destructive parts of the Protocol would in no sense be unfriendly. Rather, it would be a proportionate measure aimed at preserving the Belfast Agreement. Britain is entitled in law to make such an adjustment. And, since it is putting in place unique and binding measures to prevent the leakage of goods across the Irish frontier, the EU will find it difficult to point to any harm it has suffered in consequence.
This matters legally as well as presentationally. Article 16 sets out the conditions that would justify a unilateral disapplication of parts of the Protocol, including political or economic disruption or trade diversion, all three of which are plainly happening. It also declares that any action in response must be in proportion to the damage the other party has suffered. The EU’s problem, as even Eurofanatical lawyers privately admit, is that it won’t be able to identify any damage, because there will be no leakage of unwarranted goods across the border.
So any “escalation” would come from the European side, not the British. The UK, after spending a year asking fruitlessly for amendments that would make the deal work for both parties, is proposing to take measured and careful action, in a way provided for within the agreement, to ensure the survival of power-sharing in Northern Ireland.
Brussels might respond by opening a new front with Britain, as the French government is publicly urging (remember that, in November, the French prime minister, Jean Castex, wrote to the European Commission asking it to be inflexible on this issue so as to “show the European public that there are costs to leaving the EU”). Or it might respond, as Poland and the Baltic states would prefer, by finally treating the UK as a friendly neighbour, rather than as a renegade province.
Which way it jumps will be determined by the extent to which its real motives are its stated ones. If its sole concern is the integrity of its single market, the EU will have no grounds for complaint – as Maros Sefcovic, its negotiator, privately knows. But there may be unstated motives, too. Some EU officials – and some Irish politicians – are nervous that Britain will sign trade agreements with older trading partners that will result in the import of beef from the US, Canada, Argentina and Uruguay, rather than from Ireland and France.
More widely, there is a fear that Britain will go further with trade than the EU can – and while Britain wants a prosperous EU as a neighbour, not everyone in Brussels reciprocates that feeling. If the Northern Ireland Protocol can be used to make Britain stick to EU standards, trade deals become harder. Naturally, many Eurocrats share Mr Castex’s desire to punish Britain for Brexit – he was unusual only in saying the quiet bit out loud.
In a sense, though, all this is beside the point. Britain’s primary responsibility is to preserve peace and prosperity across its territory, including in Northern Ireland. Even if this responsibility came into conflict with its international obligations, it would take precedence, morally and politically. But in this instance, it doesn’t. Britain has every right to adjust the Protocol in a way that respects the interests of both communities in Northern Ireland, by ensuring that the North/South border and the East/West border are fully open.
Indeed, not just the right – the duty. If the Protocol is in force after the May 5 election, there is no prospect of restoring the devolved government that has been the basis of the peace settlement these past 24 years. That gives Liz Truss, whose responsibility all this has now become, a month to act.
Acting will require primary legislation – not so much to avoid legal challenges (though that may be a consideration) as to put in place watertight procedures to address the EU’s public concerns about goods’ standards. Such legislation may, paradoxically, be opposed by irreconcilable Remainers, especially in the House of Lords, who are less interested in having a cordial relationship with the EU than in trying to show that Brexit was a failure. If so, the Government will have no option but to face them down – even if that requires the creation of hundreds of new peers, as Asquith proposed during the 1910 crisis.
As for the EU, it might conceivably hit back with trade restrictions, despite the war, the energy crisis and the fragility of the world economy. In the end, that is for Brussels to decide. All Britain can do is carry on being a responsible neighbour.
As in 1914 and in 1939, we are being responsible neighbours in the most fundamental way – defending the European order and the independence of friendly countries from autocratic aggressors. Whatever happens, let no one say that we are failing to be good Europeans.
Boris Johnson went so far as to describe the deal as ‘insane’. So, what are we waiting for?