Johnson heads for certain defeat in final showdown over the Northern Ireland protocol

The prime minister's self-made problem over the Northern Ireland protocol is turning into another crisis

byAnthony Robinson
08-06-2022 


For a man still reeling from a body blow delivered by his own side, Boris Johnson seems oblivious to the freight train he is about to stumble headlong into, over plans to unilaterally override parts of the Northern Ireland protocol. It’s hard to know if it’s hubris or if he’s just punch drunk.

Fresh from a humiliatingly narrow win on a vote of no confidence, the crisis-prone prime minister is shortly expected to table what is by all accounts a piece of badly drafted legislation deliberately designed to further antagonise Brussels and what remains of his dwindling supporter base, but which seems doomed to failure before it’s even published.

This is after he told his rebellious MPs on Monday that he had “created a new and friendly relationship with the European Union”, demonstrating a level of personal credulity that is well beyond most ordinary mortals.

Only he could write it with a semi-straight face, perhaps just the faintest trace of his usual smirk betraying some inner amusement.

The proposed UK legislation is ‘unworkable’

According to Tony Connelly, Europe editor at the Irish broadcaster RTE, the new bill will create a “dual regulatory regime” in Northern Ireland, allowing imports from Great Britain to arrive without checks and circulate internally with “robust” in-market surveillance. Incredibly, the plan is to simply “create a high level concept” and then “ask industry stakeholders to come up with ideas as to how it would work which can then be tested and challenged”.

Industry stakeholders seem less than enamoured with the idea, some immediately claiming it would be “unworkable” as reported by The Irish Times. One business figure is quoted as saying, “You cannot produce to two different standards on one farm in Northern Ireland”.

The legislation may not be legal

Attorney General Suella Braverman is said to have offered advice that the government’s plans are legal, but others suggest they are not. Sky News for example claims that First Treasury Counsel Sir James Eadie, the government’s senior independent barrister on nationally important legal issues, has not even been consulted on the question of whether or not plans to override the protocol will break international law.

He is nevertheless understood to have indicated he believes it will be “very hard for the UK to argue it is not breaching international law” if it goes ahead as currently proposed.

It seems to me that the “senior figure” mentioned in this report by Politics Home is probably Sir James who represented the government when the Gina Miller case was argued at the Supreme Court.

In leaked correspondence this person is said hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.

One does not need to ponder very long to understand why he has been left out of the loop.

Parliament may not pass the bill

Many commentators believe it will be very difficult if not impossible to get parliament in its current fractious mood to pass the bill unamended, or even at all. A government source told Sky News that there are now fears there could be “a significant Tory rebellion against any legislation to [unilaterally] change the protocol amongst the 148 who voted no confidence in Mr Johnson”.

Half of the Tory benches seem to be lawyers and the upper House is notoriously picky when it comes to the niceties of international law, choosing usually to stick to the letter of what has been agreed rather than Johnson’s somewhat, shall we say, less-purist view of such matters.

EU preparing to retaliate

A few days ago the EU published a draft proposal to implement legislation enabling retaliation to be taken by the commission if the UK fails to honour the protocol. The draft contains provisions which were set out in the withdrawal and trade agreements and explains that, “the two Agreements allow a Party to take [remedial and rebalancing] measures without having to first resort to the relevant dispute settlement mechanism”.

The draft says the EU may take various remedial, rebalancing, counter and safeguarding measures under the agreements as well as the:

“Suspension of obligations under the Trade and Cooperation Agreement or any supplementing agreement in case of breach of certain provisions of this Agreement or any supplementing agreement or non-fulfilment of certain conditions, in particular with regard to trade in goods, air transport, road transport, fisheries or Union programmes.”

Note the specific reference to air and road transport. Article 1 of the draft proposal says the regulation would apply to a list of the various measures adopted by the Union, including (paragraph 2(d)):

“The refusal, revocation, suspension, limitation of and the imposition of conditions on the operating authorisations of air carriers of the United Kingdom, as well as the refusal, revocation, suspension, limitation of and the imposition of conditions on the operation of those air carriers, as set out in Articles 434(4) and 435(12) of the Trade and Cooperation Agreement.”

The measures, if implemented, look like ones that could seriously damage EU-UK trade at a time when the UK is already in danger of entering a period of stagflation. The timing could hardly be worse.



Lord Frost and the ‘relative weakness’ of the UK

Lord Frost recently wrote a foreword to a report from the right-wing think tank Policy Exchange, in which he criticised the Irish government’s focus on the “all-island” economy, saying that was wrong and had become a political tool. He added:

“And that is what creates the problem – or one of the many problems – with the current Northern Ireland Protocol or indeed its predecessor. Shaped as the Protocol is by relative UK weakness and EU predominance in the Withdrawal Agreement negotiations, it enshrines a concept, the all-island economy, which suits the EU, Ireland, and their allies politically but which does not exist in real life. Hence the grinding tensions, the economic frictions, and the political turbulence caused by the Protocol.”

It is not clear what has changed to alter the UK’s “relative weakness” or the EU’s “predominance” since the protocol was signed in 2019. If anything, we seem to be in a weaker position now. Giving evidence to the public administration and constitutional affairs committee this week he provided a long list of explanations for why the Brexit deal isn’t working, none of which could apparently be attributed to the person who negotiated it.

Horizon Europe research and innovation funding

The continuing row over the Northern Ireland protocol is putting at risk the UK’s participation in Horizon Europe, the EU’s key funding programme for research and innovation with a budget of €95.5bn.

UK universities have benefited disproportionately from Horizon funding in the past and British negotiators in the trade talks pressed for our continued membership.

The EU has not yet ratified British involvement in the programme because of the government’s intransigence in implementing the provisions in the protocol. The Guardian reported recently that the British government is close to giving up on the idea of participation, with representatives of Universities UK (UUK) claiming ministers were “at an advanced stage” of planning a British alternative to Horizon Europe.
The DUP ‘feel no pressure’ to return to Stormont

According to the FT the Democratic Unionist Party (DUP), who have refused to take their place in the power-sharing executive at Stormont following last month’s elections until the protocol is ditched, are unlikely to be persuaded to change their stance.

Northern Ireland minister Brandon Lewis had advised Johnson that tabling legislation would “do the trick” and see the DUP back in Stormont, but the DUP apparently say they feel “no pressure” to move until the bill is enacted and on the statute book, a process that could take months and may never happen at all.
Summary

To summarise, Johnson’s plan probably won’t get through parliament, will be challenged legally if it did, isn’t wanted in Northern Ireland generally, would be unworkable in practise and won’t persuade the DUP to join the power-sharing executive anytime soon. It will infuriate the EU and the USA, trigger trade retaliations and block the UK’s participation in the €95bn Horizon research scheme.

Apart from that, it’s all fine.