Simply stating the government’s case for the Northern Ireland Protocol Bill exposes its absurdity. The government has to act to protect the Union from the consequences of an agreement it signed less than three years ago. These consequences were unforeseen, ignoring the fact that they were widely anticipated. They have flowed from the supposedly unexpectedly rigid way the EU has implemented the protocol, not the text itself – but the UK insists on changes to the text.
The government’s legal case rests on “necessity”. In other words, it has to act unilaterally because of a “grave and imminent” situation that is not of its making and where there is no alternative course of action. Except that it is of its making (it agreed the protocol) and it has ignored the remedies available under Article 16 of the protocol. As for the urgent need to act because of an imminent risk, it is reported that the government will not proceed with the bill until the Democratic Unionist Party (DUP) agrees to power-sharing. That does not suggest it is acting with urgency.
The government argues that the protocol is having a deleterious effect on the Northern Irish economy but ignores the evidence that Northern Ireland is economically outperforming all other parts of the UK apart from London (quasi-membership of the single market turns out to be beneficial).
The government claims that it is protecting the Good Friday Agreement (GFA) and the principle of cross-community agreement. Except that under the GFA, cross-community agreement does not apply to international treaties, such as the Northern Ireland protocol (which, to repeat, this UK government agreed) which has a consent mechanism dependent upon a simple majority of assembly members, not cross-community support. And, if we are going to introduce an extension of the requirement to obtain cross-community agreement, there is no support for scrapping the protocol from the nationalist community, let alone the majority of those recently elected in the assembly elections. Come to think of it, there was no cross-community agreement for Brexit at all.
Incidentally, for a government professing a deep respect for the GFA, it should also be aware that leaving the European Convention on Human Rights is incompatible with it.
This is a government that says it wants to negotiate but has failed to do so since February. Ministers and officials must know that such actions make it harder for the EU to be flexible – the bloc will not want to be seen to reward bad behaviour. This is also a government that professes to be focused on delivering economic growth yet is creating economic uncertainty that will discourage business investment and may ultimately lead to a deeply damaging trade war.
In short, it has adopted a policy that creates instability in Northern Ireland, breaches international law and undermines our international standing, damages relations with our neighbours, weakens business confidence and may lead to a trade war with a trading bloc much larger than ourselves. All to amend the “oven-ready deal” that the Prime Minister spent the last general election campaign lauding.
What on Earth is going on?
There are two non-mutually exclusive explanations, neither of which does the government much credit. The first is that the plan all along was to agree (in bad faith) to the protocol, which imposed a border in the Irish Sea, then force the EU to remove it later. Many Conservatives – Boris Johnson included – have never really accepted the reality that regulatory and customs divergence meant that a border had to be put somewhere. The protocol was agreed at a point of negotiating weakness, the argument goes (although this does not explain why the government agreed to the Trade & Cooperation Agreement in 2020 without addressing the issue when it had an 80-seat majority) – but with the DUP refusing to engage in power-sharing, now is the time to act.
The second explanation is that this has to be viewed in the context of the ongoing psychodrama that is the Conservative Party. Johnson is weakened by the no-confidence vote in which much (but by no means all) of the opposition to him came from the relatively pragmatic wing of the party. He cannot now lose the support of the bulk of the European Research Group (ERG), and the ERG knows it. Add to this dynamic considerable wariness about being outflanked by an ambitious Foreign Secretary who is anxious to hear – at length and in detail – the thoughts of Bill Cash, chair of the European Scrutiny Select Committee, on these matters, and it is no surprise that the government is taking a hard line.
The context of all this is that the evidence that hard Brexit is failing as an economic project is mounting. Iain Martin’s recent piece in the Times attracted much interest because it is a rare case of a Brexiteer acknowledging the reality and advocating a closer UK-EU relationship in response. For most Leavers, however, the response has been to advocate further and faster divergence and claim that a proper Brexit has not been done. David Davis even described the current arrangements as being “a Remainers’ Brexit”. Better to move on to the next battle than accept responsibility for previous “victories”, I suppose.
At a time when we need a sensible debate about reconstructing our relationship with the EU, the political dynamics of the Conservative Party result in an ever-more destructive approach as Brexit continues not to get done. The fear must be that this just won’t stop.