NI Protocol: Boris is playing a dangerous game of chicken with Brussels

Critics of the British government’s Bill aimed at amending the Northern Ireland Protocol who are not lawyers, never mind specialists in international law, need to be careful when they pronounce on the supposed illegality of what has been proposed. 

The draft legislation has, after all, been put through the civil service mill and picked over by Attorney General Suella Braverman and her staff. If the Prime Minister and his foreign secretary, Liz Truss, have been reassured that what they are putting forward can be accomplished within the terms of the UK-EU withdrawal agreement, only a fool – or an inveterate Remoaner – would rush in to say that they have got it hopelessly wrong. 

That, in a nutshell, is the British position. Johnson and Truss would have us believe that they are acting not merely in the interests of the Union – that is to say, the United Kingdom of Great Britain and Northern Ireland – but in strict accordance with the withdrawal deal as well as the longer-term interests of Britain and Europe. 

In strict legal terms, there may be just enough wiggle-room in Article 16 of the Protocol to permit the abrogations the government has in mind. The wording of the document provides, in extremis, for unilateral safeguard measures aimed at remedying any “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. It concludes: “Priority shall be given to such measures as will least disturb the functioning of this Protocol”. 

The question now arises, does the Northern Ireland Protocol Bill, as introduced in the Commons on Monday, provide for the least possible disturbance of the Protocol, or is it a cakeist attempt to override its terms. Boris Johnson said that the Bill provided for no more than a “relatively trivial set of adjustments,” and it is certainly true that the DUP had hoped for more, preferably a root and branch repeal of the Protocol. 

But the Prime Minister’s choice of words has found no echo in Brussels, where the Commissioner responsible for post-Brexit relations with the UK, Maros Sefcovic, has put his lawyers on alert to open legal proceedings against Britain that could result in the suspension of the entire withdrawal agreement and the declaration of an extremely damaging trade war. 

Is Johnson really prepared to risk everything, or is he just bluffing? 

As it stands, the Bill is a brazen act of cherry-picking, in which those aspects of the Protocol with which the UK has no problems would remain, while those to which it objects would be refashioned along entirely British lines. 

It will be recalled that the purpose of the Protocol – which deems Northern Ireland, uniquely, to remain part of the EU single market for goods – was to obviate the need, post-Brexit, for a hard border in Ireland. Unionists – the DUP in particular – would love nothing more than a restored border, preferably with police patrols and customs posts, but would settle for a line on the map denoting the existence of an international frontier that showed the demarcation between the two jurisdictions. Those living south of the border would be Irish and European; those in the North would be British only. 

The problem is that any such border, even if lightly regulated, would have to be closely monitored to prevent large-scale tax evasion. Minor roads between the two sides, numbering in the hundreds, would become, overnight, smugglers’ trails and might have to be closed. Hardline Republicans and moderate nationalists would both be outraged, leading in all likelihood to a resumption of some form of the IRA armed struggle. 

With this mind, here are the changes laid out in the Bill: 

• Checks on most goods crossing from mainland UK to Northern Ireland would be scrapped. Trucks carrying goods deemed liable to cross from NI into the Irish Republic or the wider EU would be directed through a Red Channel. All other goods would pass, unchecked, through a Green Channel. Decisions on which goods went through which Channel would presumably be taken in the UK. 

• VAT, which in NI is set to remain at levels set in Brussels, would instead be levied at the pan-UK rate, creating a distortion, however small, in the single market. 

• NI manufacturers would be allowed to operate under market terms set by London, not Brussels, though, just to confuse matters further, they could opt to follow EU rules. 

• Finally, the role of the European Court of Justice, which under the terms of the Protocol is the final arbiter in matters relating to trade and regulation of the single market in NI, would be scrapped. UK courts would take over, with the ECJ reduced to advisory status. 

If these measures are relatively trivial, what would full-throated change look like? What is going on? 

It is probably safe to say that the Tory government doesn’t actually care that much about the fortunes of the Democratic Unionist Party and its increasingly ham-fisted leader, Jeffrey Donaldson. If Donaldson underwent a damascene conversion and announced that he had learned to love the Protocol, no one would be happier than Johnson and Truss, for they are risking everything on playing the Orange card without knowing if it will turn out to be the ace of trumps or the two. 

Imagine if Donaldson, having listened to the Ulster business community, 90 per cent of which is strongly in favour of the current deal, quietly let it be known that he would settle for a few minor changes in the system. At once, the heat would be off. There would be no more talk of a trade war or years of legalistic bickering. Instead, British and EU officials could meet around a table in Brussels and, inside of a week, a month at most, come up with a formula that allowed both sides to claim that a state of grace now existed between them. 

The PM and foreign secretary could get back to winning the war in Ukraine (and maybe even rescuing the economy); the Irish would throw a party and the EU could devote itself full-time to the serious task of weaning itself off a dangerous dependence on Russian oil and gas. 

In Northern Ireland itself, Michelle O’Neill of Sinn Fein would be elected First Minister, with another DUP member as Deputy ­– or co-equal – First Minister, and the Stormont Assembly could get on with the job for which its 90 members were elected on 5 May. 

To make sense of what is going on we have to drill deeper into the abyss. Everybody, from the European Commission, to the British and Irish governments, all the way down to the DUP and Sinn Fein, likes to claim that what they are trying to do, above all else, is protect the Good Friday Agreement that in 1998 brought peace to Northern Ireland after 35 years of The Troubles. 

The reality is that the DUP, backed by a tiny section of the Tory right, is holding the UK hostage in a desperate attempt to reaffirm the sense of Britishness that runs through its members like the name of the town on Brighton Rock. Jeffrey Donaldson, Edwin Poots, Sammy Wilson and the rest cannot, and will not, accept that their central identity has been compromised not by the Protocol, or the European Union, but by the fact that Catholics and nationalists in the North are poised to become the majority community and that Sinn Fein is already the largest political party. 

Theirs is a rearguard action designed to build Britishness into the core of the system while they still have the muscle to do so. They will fail in the long run, but in the present struggle the possibility exists that relations between Britain and the EU will be collateral damage in the war between unionists and nationalists in Northern Ireland. Talk about the tail wagging the dog! 

Why Boris Johnson and his supporters (or is it the other way round?) are going along with the DUP tactic is another matter. My guess is that, as ever, the PM is hoping to wriggle free from the mess he has created. He has raised the stakes in the hope either that Brussels will fold or that the game of cards will be put to one side, replaced by a deal with his name on the cover. 

If the latter is the case, he has always been pushing at an open door, if only he realised it. Maros Sefcovic has on at least two occasions offered significant compromises to the UK side, and he promises more. The sausage war is over; medicines have been removed from the EU’s list of goods to be checked; there have even been suggestions from Brussels for some sort of fast-track for everyday goods that are clearly destined only for the NI market. Sefcovic doesn’t want a trade war. Nor does Ursula von der Leyen, or for that matter Olaf Scholz or Emmanuel Macron. All they want is a final settlement consistent with the central premise of the Protocol as signed by Johnson and Frost on 20 January, 2020. 

But it is never enough. Egged on by Truss and Lord Frost (who can’t keep his snout out of the negotiations from which he voluntarily resigned), Boris is pursuing victory over the Protocol as if it were the diplomatic equivalent of Agincourt, with him as Henry V. He is engaged in a serious game of brinkmanship, ready to play chicken when all that is needed is a steady hand and an open mind. Sadly, he has neither.