“There is without question a sensible landing spot in which everyone’s interests are protected. Our shared objective must be to the create the broadest possible cross-community support for a reformed Protocol in 2024.”
So claims Boris Johnson in the peroration of his 2,200-word essay for the Belfast Telegraph setting out his pitch for resolving the row with Brussels and getting Northern Ireland’s political institutions back on their feet. Again.
Is it true? It’s very hard to say, because what looks superficially like a question for a lawyer seems better suited, upon wading through the arguments for long enough, to a theologian.
Each side’s technical arguments rest on (or indeed, basically gild) a set of principles, assumptions, and assertions which cannot be empirically resolved by appeals to expertise.
Instead, Ireland and the EU have outmanoeuvred Britain by ‘bargaining with their right brain‘; that is, framing popular understanding of the dispute. (Not least because the UK has, until very recently, not obviously been trying.)
For example, take the claim that Government ‘threatens the peace’ by taking action against the Protocol.
In the scenario laid out by its critics, it would be the EU that set up a hard border (in response to threatened market distortions of which there is no evidence) and terrorists which attacked it. Nonetheless, the full weight of moral culpability in this scenario is widely held to rest on London’s shoulders.
Suffice to say, no volume of clever technical argumentation will dig you out if you accept the bottom of that hole as your starting point.
That the UK are still losing this battle is evident in Johnson’s article, for example where he says that:
“We insisted throughout that there would be no scenario in which a hard border would be allowed to emerge. And we have delivered that 100 per cent, as we said we would, protecting in full the rights that were enshrined in 1998.”
There is no treaty right to an invisible commercial border between Northern Ireland and the Republic, dated to 1998 or any other year. The idea the Belfast Agreement would contain one – and one that would if necessary overrule the free trade portions of the Act of Union, at that – is absurd. The whole thing is a meme.
But London swallowed it hook, line, and sinker, and it has crippled the British negotiating position from the start. (This may not have been entirely accidental.)
Johnson’s essay does mark a belated effort to try and introduce some narratives more useful to the British case, especially with regard to its actual obligations under the Belfast Agreement.
But there seems little point complaining that “some feel that their economic rights as members of the United Kingdom are threatened” when it was his Government that legislated to repeal the economic parts of the Act of Union.
Nor is it obvious how a settlement can be said to treat both sides equally when one side’s priorities remain, in his own words, of “paramount importance” over those of the other.
The happier side of this dynamic is that if the EU decides it is minded to deal, there will almost certainly be a deal. Brussels has not historically allowed the niceties of its internal rules to stand in its way.
It does not follow, however, that the “sensible landing spot” envisioned by the Prime Minister actually exists, at least not yet.
Sam Lowe, a trade expert and author of the Most Favoured Nation newsletter, has handily compiled a list of the UK’s specific demands. The Institute for Government has also compared a handy side-by-side list of the British and European positions on various points of dispute.
And despite the rhetorical pretence that the Protocol was always the only possible outcome of Brexit, there has to date been some movement in some areas.
The Government’s tactic of unilaterally extending grace periods on items such as chilled meats, for example, has seen them baked into the status quo; Lowe write that: “everyone, including on the EU side, knows that these grace periods and derogation are not going anywhere”.
Likewise, the IfG acknowledges that on medicines the EU has tabled proposals which represent “a significant departure from its original position”.
But London and Brussels remain a long way apart on a lot of issues both economic (VAT, customs) and constitutional (the role of the European Court of Justice).
And as the Institute of Economic Affairs notes in their most recent briefing, even the partial implementation of the current Protocol is creating “significant diversion of trade”, which the Protocol in theory “expressly sought to avoid”.
Tied to the text
Moreover, for now the EU insists that it will not reopen the text of the Protocol.
This is obviously a major barrier to either substantive reform or (perhaps as important, as far as Unionist sentiment is concerned) the appearance of it. Even those on the British side aiming to work within the Protocol, such as Roderick Crawford, concede that the text needs to be at least “amended” in certain areas.
In others, a layman’s reading of the text of the Protocol seems to suggest it could be read any which way. For example Clause 2 of Article 5, which governs whether or not goods entering Northern Ireland should be subject to EU customs, sets out the criteria by which a Joint Committee will draw up a risk assessment. It then concludes:
“In taking any decision pursuant to this paragraph, the Joint Committee shall have regard to the specific circumstances in Northern Ireland.”
That line could mean anything. London could plausibly argue that the Province’s “specific circumstances” justify its bid to reverse the burden of evidence and have goods exempt from EU customs absent a positive determination that they pose a risk to the Single Market. Brussels could argue the opposite.
Such vaguery perhaps allows wriggle room for the Protocol to become one of those “living documents” whose seemingly solid provisions melt into air as the moment requires.
But in such cases, they tend only to do so as suits whichever party has the upper hand. The Protocol’s provisions will thus be granite until the EU feels the need to concede something.
This is why the threat of legislation to allow the Government to act unilaterally is potentially so important – and the fact that Johnson and Liz Truss seem to be caught up in a briefing war over it, rather than presenting a united front, so utterly lamentable.
We ended up with the Protocol because Irish and European negotiators consummately outplayed a succession of hapless, culpable, or simply uninterested British counterparts on the Northern Irish question. Nothing about the Government’s swithering over Article 16 since the last election will have convinced them that their opponents have upped their game.
But the key to unlocking a deal almost certainly lies not in some legal gotcha, but in shifting Brussels’ perceptions of the balance of risks.