Former Brexit chief: the Protocol bill is a nakedly partisan intervention in Northern Irish politics

The damage done by this legislation begins now

June 14, 2022
article header image
Jonathan Porter / Alamy Stock Photo

It could barely have gone further. The Northern Ireland Protocol Bill introduced on Monday by the UK government drives a coach and horses through a central part of the Brexit deal. Great swathes of it are to be disapplied, on customs, on regulatory standards, on subsidy control and VAT, and on the oversight of the European Court of Justice. The foreign secretary might protest that the Protocol is preserved, but this legislation would leave a mere husk.

What will the impact of the bill be? It is very, very difficult to see how anything good can emerge from this.

The UK’s international reputation as a reliable steward of the rule of law will be further tarnished. This is a bad look for a country that aspires to global leadership. The UK government has put forward a legal justification, based on the concept of “necessity”; unilaterally re-writing the Protocol is, it claims, required to safeguard an essential national interest. This is a point of law stretched well beyond its intended scope. Lawyers will have a field day deconstructing the government’s legal defence. Also to the point: hostile state actors across the globe will take note of the UK’s brazen attitude to its international obligations.

The EU cannot possibly sit on its hands in the face of this provocation. It is barely a year and a half since the Protocol came into effect and already the UK government is shredding it. Expect the currently stalled legal action on the UK’s unilateral extension of the various grace periods under the Protocol to be resumed. Expect any progress in wider bilateral negotiations, for example on UK accession to the Horizon research programme, to become truly glacial. There is now no prospect of any easing of the newly burdensome conditions under which GB businesses trade with the EU; we might expect instead a more vigorous application of the rules.

During the negotiations from 2017-2020, sorting out the Northern Ireland conundrum was an essential precondition for the EU for the settlement of the wider withdrawal deal and the future relationship with the UK. Pull away that strut and the whole edifice totters. A full-blown trade dispute might seem disproportionate and, in any event, is some way off. But the chilling effect of the threat of a trade war will be felt almost immediately, not least in Northern Ireland. Investment in UK businesses is already well down on what it would have been had we stayed in the EU. The uncertainty over the UK’s trade relationship with the EU will hardly encourage those lost investors to come back.

The bill is meant to safeguard the Belfast/Good Friday Agreement. That is a brave contention at best. This is a nakedly partisan intervention in the politics of Northern Ireland. Rather than attempting to bridge the divide between the communities on this most difficult of issues, it comes down determinedly on the position advocated by the DUP. In vain will a majority of newly elected members of the assembly protest. The UK government is past taking an even-handed approach.

Parliament will once again be wracked by bitter debate over Brexit-related legislation. Even if a sufficient number of Conservative backbenchers can reconcile their consciences to another egregious breach of the UK’s international obligations and allow the bill to pass the Commons, the House of Lords at least will put up some stiff resistance. A public that thought that Brexit was done will look on with bemusement—and not a little anger.

All these consequences flow inexorably from the actual tabling of the bill. The damage begins now and does not depend on the bill being enacted. The puzzle is how the UK government has got itself in such a fix. It has piled up the worst of all worlds, where once it promised Northern Ireland the best of both worlds.

The most charitable explanation is that this is just a giant negotiating bluff, cunningly designed to force the DUP back into executive government in Northern Ireland and the EU to make concessions on the substance of the Protocol. That is a gamble, to say the least. By dancing to the DUP’s tune, the UK government has given its leadership every incentive to hang tough. And the EU simply cannot afford to be seen to cave in the face of such provocation.

The hard truth is that there is only one way to resolve the undoubted issues around the Protocol, and that is through negotiation. The EU tabled proposals on easing customs and agri-food checks back in October last year. It will have to give more ground. There is some merit in the notion of two channels for imports into Northern Ireland: red for goods at risk of ending up on the EU market, green for trusted traders in goods that are clearly destined only for local consumption. There is a landing zone there for committed and clever negotiators. Brandishing this bill will simply delay the finding of the required compromise.

There is political calculation here that is more about the state of the Conservative Party than the national interest. The runes aren’t hard to read: an embattled prime minster ever-more dependent on the hardline Brexiteers in the European Research Group; a foreign secretary with eyes on the top job, keen to ditch any last vestige of Remainerism by going gung-ho on the Protocol; a government falling over itself to talk about something other than the cost-of-living crisis; a party blowing desperately on the embers of the Brexit wars to rekindle fervour in its voter base in the Red Wall and beyond.

But even that credits the government with some coherence of thought. The sad truth is that future historians will see more panic than plan in this shabby episode, with a government that has lost its way lurching from crisis to exigency, prey to the Brexit ideologues who hold it hostage. For all the promises made on that June dawn back in 2016, this is a sorry place to be.