What do you think Boris Johnson is doing with his kamikaze tactics on the protocol bill? Pursuing the most aggressive line, he seems determined to court a confrontation with the EU. Can it be serious, even as a survival strategy?
As Peter emphasizes, where Johnson is on shaky ground is that in the protocol there is an explicit provision to suspend him, where there are “societal difficulties … likely to persist” via its item 16. If the impending collapse of the Northern Ireland Assembly represents “societal hardship” – which it certainly does – Johnson’s least aggressive act would be to trigger Article 16.
So why did he choose to go the macho route of making a British law instead? The reason is that Johnson wants to go further than triggering Article 16: he wants to abolish any role for the European Court of Justice in deciding whether the terms of the protocol are being met. This is the religious belief of its ultra Brexiter wing, the European Research Group, that Brexit should have kicked the European Court of Justice out of every square inch of the UK. In other words, all those tedious and cancerous battles with the EU for sovereignty that were supposed to be resolved by Brexit are still on.
Britain’s most expert commentator on the subject Peter Foster of the FT explains hNow the bill intends to remove almost all traces of the Withdrawal Agreement, even to the point of nullifying the Assembly’s right to reject it by a simple majority in 2024:
Article 15 of this bill makes it clear how sweeping the powers are… This legislation is much wider in scope than the Internal Market Bill 2020 which the government has admitted to breaching international law in a “limited and specific way”… the article 15 of this bill specifies how wide the powers are… /
Article 15 lists nine very broad criteria for the use of the powers of deactivation of certain parts of the protocol… – “to safeguard economic stability” – and the “safeguard of the territorial or constitutional integrity of the United Kingdom”
also “reduce, eliminate or avoid” the difference in tax rights between Great Britain and Northern Ireland. – “ensure the smooth running of exchanges
This gives UK ministers the power to ‘fix’ the protocol on any of these pretexts… for example to end checks at the Irish Sea border; ending the state aid provisions of article 10, harmonizing VAT rates NI to GB…..to empty the protocol effectively
There is in fact nothing, Whitehall insiders say, to stop ministers ignoring the 2024 consent vote that was a BIG WINNER in post-Theresa May negotiations. The government says it has no intention of doing that. He says Article 15 is a technical “insurance” clause to be used as a tidying up exercise;
But if the government has no intention of doing something, then why is it giving itself powers to do this thing?
The answer is that the Assembly would be asked to vote only on the unilateral British solution without the possibility of voting on the original protocol, an essentially meaningless choice.
Few take seriously Johnson’s flippant assertion that the bill contains a relatively trivial set of adjustments in the grand scheme of things.
For the bill to pass and then be implemented, it would need to pass a number of high hurdles, the first being a convincing vote in a debate in the House of Commons as early as this week. With a high number of Tory rebels reportedly willing to vote against, his majority could be embarrassing. But the FT’s Stephen Bush believes Johnson’s tactic here is to tthreaten the rebels with early elections if they do not align themselves.
Could enough have happened by October-November, the likely dates of another Stormont election to persuade the DUP to return to the Assembly? Answer: probably not. But this is where the political calculations get interesting. What if the EU seriously starts to retaliate and threatens a trade war that will raise the tariffs of an NI leaving the single market? How would voters react to worsening economic conditions as a prelude to a hard land border and all the political consequences that would entail? Johnson must calculate that any such bluff would be called, either the Irish-led EU would back off somewhere along the line; or the DUP would blink first and submit under threat of losing even more votes left and right; or both.
A more cunning strategy is suggested by the independent conservative commentator Paul Goodman, editor of Conservative Home
Let’s start by agreeing that the EU doesn’t think it owes Boris Johnson any favors – it sees no reason to give the UK a competitive advantage: hence the deadlock on standards and regulation. It would be great if the bickering over the protocol was just a matter of disagreements between the government and the EU.
However, through the mass of trusted trader details, VAT and subsidy rules push the mighty ship of the Belfast deal.
It is difficult to dispute the government’s view that the protocol has proven to be inconsistent with the agreement.
(Not everyone would agree, Paul)
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 it stands, the land border is loose enough for armed republicanism to gain little ground, and the protocol should allow for a maritime border sufficient to keep armed loyalists in the same state – and the Executive Unionists from Northern Ireland.
This would honor the spirit of the agreement, which translates to, “Let’s keep the show on the road.” But the EU is preoccupied with lighting fires under the Prime Minister’s feet, and thus risks setting the province ablaze.
No wonder the government is urgently looking for a solution. It comes in the form of a bill that would create the conditions for the non-application of parts of the protocol.
I’m not moved by lectures on the sanctity of international law from the EU – itself a serial breaker of such a law on World Trade Organization rules, ‘flouting crop rulings GMOs, hormone beef and Airbus subsidies, or Democrats in green jerseys in Congress.
But three points apply here. First, Britain must certainly act in its own interests as a last resort, just as the EU itself does. However, secondly, there may be a reputation penalty to pay for this.
And, thirdly, whether there are any or not, the worst of all worlds would be to threaten to act, to be pilloried in the meantime for flouting international law… and then to be unable to deliver what you want, because your inner situation is so weak.
He has no guarantee that the DUP will be reintroduced into government. Threats to violate international law proved unsustainable last time around, given the outcry from Tory backbenchers. The fate of a bill that may be in the same ballpark is uncertain.
And that’s before one of the factors in the Lords and the courts and the delay before the government can use the Act of Parliament to force the bill through, assuming they’re able to then do anyway.
The lasting solution to protocol is to do what has been done before: get a deal. It could mean hang in front of the EU again that she wants, such as the defense and security agreement that was refused during the Brexit negotiations. But such a scheme is unlikely to work for this government.
Crudely but simply, the EU thinks it has Johnson where it wants him, which is not that far off from where Theresa May was before her administration collapsed. Terminally ill authority beaten; beleaguered leadership.
He is not prepared to offer him the slightest concession that he can reserve for a successor. This is how the EU’s rapacity and the fervor of his colleagues are fueled by Johnson’s weakness – although I don’t blame him for signing the protocol, which should be workable, as we have seen. , with enough goodwill from the EU.
As I write, the Prime Minister seems more likely to have bought the European research group than the conservative champions of international law.
His bet seems to be that the advancement of this bill, the compatibility of which with this law is disputed, will be enough to persuade the DUP to return to government at Stormont. After which he will challenge the EU to make concessions without which the executive could collapse again – and if they don’t, then trigger the provisions of the bill.
Churchill said jawbone was better than warfare. The bet of his biographer (Johnson) is that the bluff will work better than both. I hope he’s right, but the odds are not in his favor…
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; BBC NI political editor; Commissioning Editor of BBC Radio 4 Current Affairs; Political and Parliamentary Programs Editor, BBC Westminster; former editor of London Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London