A deal may finally be in sight on the Northern Ireland Protocol. While this may be a great relief to many, unsurprisingly, we are already seeing stirrings from the European Research Group (ERG) of Conservative MPs. Boris Johnson is on manoeuvres, no doubt waiting to cry betrayal, apparently oblivious to his own failings in this area. And the Democratic Unionist Party appears resolutely unhappy. There is little doubt that there will be ructions before any agreement can be pushed over the finish line.
However, if it can, there is much to be hopeful about. It would be naive to expect that any new deal on customs arrangements will finally end all tensions with the EU, but it would at least allow the UK to move beyond questions of “getting Brexit done” and lead to improved relations and enhanced co-operation with our nearest neighbours on issues such as security, immigration and the Horizon research programme.
Rishi Sunak will hope that he receives plaudits for strong leadership and statesmanship for negotiating a new deal with the EU. He should also be able to ditch the controversial Northern Ireland Protocol Bill, which would breach international law (and is currently receiving a rough ride in the House of Lords).
Yet, ironically, the biggest winner from any deal may well be Keir Starmer. In January the Labour leader wisely offered to support the Prime Minister in an attempt to marginalise the ERG. Once the terms of the deal are on the table, he will have the chance to double down by asking Labour to endorse it. Not only would this highlight the splits in the Conservative Party, but it would also reinforce the fact that Starmer can do grown-up politics.
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While the proposed deal is said to be within the framework of the existing protocol, if new legislation may be required to implement the changes (as is rumoured) this would underline Starmer’s willingness to act responsibly. It will also be harder for Brexiteers to accuse Starmer of selling out when the impetus for his actions comes from the Conservatives.
Additionally, Starmer will be able to share credit for improving relations with our nearest neighbours, which may prove very useful if he ends up prime minister in little over a year from now.
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The DUP deserve little sympathy in all of this. Northern Irish unionists may exclaim about the need for cross-community consent now but, having supported Brexit, when they held the balance of power they played pork-barrel politics to their own detriment. They failed to work with Theresa May when she was working on all this in 2018, and are essentially hoist on their own petard. Given its past conduct, the DUP deserves no veto.
As for the fury with which the ERG and DUP regard any agreement which includes the jurisdiction of the Court of Justice of the European Union, almost all legal experts agree that it is impossible for this requirement to be eliminated completely. This is because it is a constitutional requirement imposed under EU law that the court is the final arbiter of EU law. Any attempt to remove this requirement is, essentially, an indirect effort to terminate the protocol.
Following what has been an intractable dispute between the UK and the EU, what we now need is to mitigate the damage caused by Johnson’s deal, ameliorating what problems we can. Assuming the protocol can be made to function effectively, and with the support of the majority of people in Northern Ireland, that should be the end of the matter.
If the DUP remains unhappy, rather than refusing to return to the devolved government, it is open to it to campaign at the next Northern Ireland election to use Article 18 of the Protocol (the democratic consent mechanism which Johnson announced with such triumphalism in 2019) to end the trade related elements of the deal. That is how democracy is supposed to work. However, the truth is that if the DUP stands on such a platform, it is likely to find that it simply doesn’t have the votes. The country cannot be held hostage forever.
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