Two weeks ago I posted about the ongoing schism between ‘Brexitists’ and ‘Traditionalists’ within British Conservatism. Then, last week, I wrote about the battle for the post-Brexit polity in terms of whether a scenario of ‘rapprochement’ with the EU will emerge, or one of a constant ‘repetition’ of antagonism towards the EU. Clearly these two things are intimately related, especially whilst the Conservatives are in government.
In both posts, I made the obvious point that a key moment in all these issues was approaching, in the form of a possible deal over the operation and application of the Ireland/Northern Ireland Protocol (NIP). That moment has now arrived in that, although the anticipated announcement of that deal this week didn’t happen, the pre-announcement politics have become intense.
It seems certain an agreement won’t be unveiled until at least next week, and what then happens will have potentially major implications for the country, UK-EU post-Brexit relations, the Tory Party and Rishi Sunak’s premiership. The implications are no less great if, after all the indications of an imminent resolution, Sunak suddenly announces that he hasn’t been able to reach a deal. And he surely can’t continue much longer without doing one or the other.
In the meantime, this provides an opportunity to take stock of where we are now, how we got here, and what may happen next. As ever with Brexit, it’s a complicated story.
Where are we now?
Last Friday it was reported (£) that Sunak “appears determined to take on Tory Eurosceptics by striking a compromise with Brussels”. On Sunday the story was (£) that Sunak was ‘pausing’ the deal because of ERG and DUP opposition, but by Monday we were told he was ‘pressing ahead’ despite this opposition which, on Tuesday, he was “relaxed” about. Such contradictory reports have continued all week, under cover of repeated claims from the government that there is ongoing “intensive work” with the EU. But Tony Connelly, RTE’s invariably reliable Europe Editor, tweeted that, but for a few loose ends, the substance of the talks had finished last weekend. So it really does come down to Sunak’s domestic political management now, which is unfortunate given that, in Anand Menon’s words, he is “truly awful” at politics.
It’s not clear what he is waiting for, since it is unlikely that there is much else he can do to satisfy his anticipated opponents if they stick to their maximalist demands. Perhaps some haggling might buy off the DUP, but there is no public sign that is in prospect. Nor is there any sign of the ERG* withdrawing their opposition to anything that it’s likely Sunak could have negotiated with the EU, even if that includes the quite substantial concessions on setting VAT and other taxes and on state aid provisions which some reports have claimed.
It may be that Sunak is hoping that will change under the influence of Northern Ireland Secretary and former ERG Chair Chris Heaton-Harris, who is widely reported to be enthusiastically supporting (£) whatever has been agreed. That hope would be further raised if Northern Ireland Minister Steve Baker, another ex-Chair of the ERG, endorsed the agreement but, conversely, if rumours he may resign over the agreement come true that would surely boost a rebellion.
It's also not at this point clear whether there will be a parliamentary vote on any deal. There is no legal requirement for one. Although in response to Keir Starmer at Prime Minister’s Questions (PMQs) on Wednesday Sunak said that Parliament would be able “to express its views”, that could be interpreted either way. But, even if none were proposed by the government, the ERG might find a way to engineer a vote. If so, the government would win with Labour support, which itself would be damaging to Sunak.
It’s also possible that Labour (or perhaps the SNP) could table an Opposition day debate, not with a view to defeating the government but exposing Tory divisions. It was certainly telling that Starmer used all six of his PMQs to ask about the Protocol, given his habitual reticence on anything Brexit-related. But this is one Brexit area where Labour feels on safe ground and, indeed, Sunak’s rather weedy attempts to dismiss Starmer’s approach as rooted in opposition to Brexit and a willingness to “surrender” to the EU hardly made sense given that he supports Sunak’s policy.
But, vote or no vote, if the ERG decide to exact revenge on Sunak they have plenty of ways of doing so. There are already threats of ministerial resignations (£), and with Boris Johnson stirring the pot and the strong possibility of poor results in the May local elections, who would bet against yet another Tory leader being toppled, ludicrous as that would be?
How did we get here? A very brief history of dishonesty
It’s easy to imagine that some in the general public hearing news reports about the NIP this week are puzzled. Surely Brexit was ‘done’ some time ago, and all the parliamentary rows about it a thing of the past? After all, that was exactly what voters were told would happen if Johnson won the 2019 General Election. But, of course, it was a lie, and it was a lie that grew from a series of earlier lies and led to countless more.
Those lies started before the Referendum, when Johnson and others insisted that a vote to leave the EU would have no implications for the Irish border, or for the Belfast Good Friday Agreement (GFA) and the associated peace process. In doing so, they dismissed or ignored explicit warnings to the contrary. This still lies at the heart of some Brexiters’ opposition to the NIP: they don’t believe any need for it exists.
This isn’t the place to reprise all the twists and turns of the search for magical ‘alternative arrangements’ which would square the circle of a border being unavoidable but there being no place where a border would be politically acceptable. Such arrangements were never found, and even Shanker Singham, the Brexiters’ go-to trade expert, who chaired the Alternative Arrangements Commission, recognized that on the core issue of Sanitary and Phyto-Sanitary (SPS) regulations there is no alternative other than for Northern Ireland to follow the same rules as Ireland (and therefore the EU). Yet, extraordinarily, this week Brexiter Bernard Jenkin was again floating ‘alternative arrangements’ for an Irish land border as the solution.
In due course Theresa May came up with the solution of the backstop, which the Brexiters rejected as they claimed it would mean the UK remaining in a permanent customs territory with the EU. It most likely would have done, although in principle it would only exist ‘unless or until’ alternative arrangements were in place. That this didn’t satisfy the Brexiters demonstrated that they knew that their claims about the feasibility of alternative arrangements were also lies.
So Johnson came up with ‘the front stop’, the basis of the NIP, which created an Irish Sea border. But he lied about that, too, denying that it meant such a border. It seems likely that he also lied by telling ERG MPs that the arrangement was only temporary (see also revelations made by Dominic Cummings). Johnson then sold it as the oven ready deal to voters, and the Brexiters – Tory MPs and Tory and Brexit Party MEPs – subsequently voted for it in both the UK and European Parliaments.
Ever since, there has been a torrent of lies about it, many of them told by David Frost who negotiated the Protocol apparently unburdened by the knowledge of just how awful it was. If only he were capable of such reticence now. These lies include that it was only agreed under duress because the ‘remainer parliament’ had deprived Johnson of the ‘leverage’ of ‘no deal Brexit’; that it was only ever intended to be temporary; that the consequences of it weren’t known; that the EU wasn’t expected to apply it too literally; that it has damaged the Northern Ireland economy.
Throughout all that, there has also been a torrent of legal and quasi-legal nonsense about how Article 16 could be used to get round the Protocol (it wouldn’t), about how Article 13.8 means the Protocol was not permanent (it doesn’t), about whether the Protocol violated the GFA (see below), and about how parliament has the sovereign right to over-ride international law (it doesn’t). Such claims come and go, are endlessly discredited, only to re-appear. At the same time, it shouldn’t be forgotten that, almost since it came into force, the UK flouted its provisions by unilaterally extending several of the ’grace periods’ for implementation. Meanwhile, in Northern Ireland itself, the DUP used the Protocol as a justification to collapse the power-sharing institutions.
None of this should be shrugged off as ancient history. This edifice of lies isn’t just what created the current mess, it is also what needs to be demolished if there is ever to be any prospect of genuine progress.
The Protocol and the Belfast Good Friday Agreement
Within all of the lies, one which has again featured prominently this week warrants more detailed discussion. Although the ERG and the DUP are advancing similar arguments against agreeing any changes to the NIP short of, effectively, scrapping it, the two are not the same and have different interests. The ERG showed, in backing Johnson’s deal, that they didn’t ultimately give tuppence about the unionist case against the Protocol. It suits them now to say that the DUP must be satisfied so that the Northern Ireland Assembly and Executive can be restored, just as it suits them to say that the NIP jeopardises the GFA. But that isn’t what they said at the time when Johnson explicitly stated in Parliament that it was “fully compatible” with the GFA.
As usual, there are numerous different strands to disentangle in all this. One is the persistent claim from the DUP, now taken up opportunistically by the ERG, that the NIP violates the principle of ‘cross-community consent’ in the GFA. But this principle doesn’t apply to making international treaties such as the NIP, and the Supreme Court has ruled that the Protocol doesn’t violate the Northern Ireland Act (the legislation which implemented the GFA in the UK). Perhaps even those of us lacking the legal eminence of the Supreme Court might have suspected that any case whose applicants included Ben Habib and Kate Hoey might have flaws. In particular, and amongst other things, its ruling rejected the claim that the Act required a referendum in Northern Ireland on the Protocol on the basis of it being a ‘constitutional change’. In any case, if that claim had any logical (let alone legal) force then it would surely apply to Brexit itself, which didn’t have majority support in Northern Ireland.
However, the invocation of the GFA is more political than legal. The Brexiters bitterly resent the extent to which the EU and Ireland successfully established that the GFA must be honoured by not creating a land border in Ireland. But they realised that this was a powerful legitimating argument and, in particular, one that had traction in the US, especially once Joe Biden came to power. So they co-opted it to bolster international support as well as to give them domestic cover. That started under Johnson, with, for example, the visit of the then Foreign Secretary Dominic Raab to the US in September 2020 (just as footage emerged that he had not even read the GFA) and continued after Biden’s election with, for example, the visit of ‘special envoy’ Conor Burns last June.
Notably, this no longer seems to be a line which Sunak is pursuing and, indeed, it is precisely the fact that he seems to have accepted the basic architecture of the NIP which explains ERG and DUP suspicions of an imminent ‘sell-out’. But it is a line the ERG/DUP are still pushing hard, as for example in Iain Duncan Smith’s article in the Sunday Telegraph (£) this week. It was a particularly repellent piece in the way the way it invoked the killings during the Troubles, when Smith himself had been a soldier in Northern Ireland. For despite the emotional blackmail of his lament that “given so much sacrifice, I cannot understand why we would risk its demise now” he not only voted for the Protocol but derided those calling for lengthy debate or scrutiny of it.
Nor should it be forgotten that, before the referendum, the then Northern Ireland Secretary and ERG member Theresa Villiers said it was “highly irresponsible” even to mention the possible effect on peace in Northern Ireland. It strikes me that then was exactly the time when it was responsible to do so, and massively irresponsible to leave it until now to do so.
The problem isn’t the NIP, it’s Brexit itself
With that said, and whatever the legalities of the GFA, it’s undeniable that the NIP has caused a major political problem in Northern Ireland. The DUP’s refusal to participate in the power-sharing institutions may be unjustifiable, especially given the consent mechanism which, as things stand, would be satisfied since a majority of current MLAs support the Protocol, as, indeed, do the majority of people in Northern Ireland. Yet the political reality of the DUP’s stance can’t be ignored and, certainly, the unhappiness amongst many in the unionist community shouldn’t be ignored. That the DUP’s own support for Brexit has contributed to this situation is true, and an effective debating point, but it doesn’t affect that political reality. In this sense, although I disagree with it in many respects, Tom McTague’s article in UnHerd this week about the concerns of unionists has some validity.
But this, rather than the GFA narrowly conceived, reveals the real issue that John Major and Tony Blair warned about so forcibly, but to so little effect, before the Referendum. In Major’s words at the time, a vote to leave would mean “throwing all of the pieces of the constitutional jigsaw into the air”. He has been proved right. Brexit threw a huge rock into the delicately calibrated mechanisms and compromises of the entire peace process, the ground from which the institutional fruit of the GFA and the NI Assembly grew.
Moreover, once Brexit became defined as hard Brexit it created the infamous ‘Trilemma’ to which there is no solution (or, more accurately, no solutions other than abandoning hard Brexit, or Irish re-unification). The addition of the need to keep the Assembly operational being adopted as a requirement, not just of the DUP but of the UK government, has added a fourth leg to that to create what in the past I have called the ‘Quadrilemma’ (a usage which, alas, hasn’t caught on).
In short, the problem isn’t the Protocol, it’s Brexit itself. There is no solution, or certainly no good solution, and the Brexiters have signally failed to come up with one. For the most part they now airily say that ‘Mutual Enforcement’ is the answer (and yet another version of it has been wheeled out this week). But it is one that has been considered and found inoperable, principally, as with 'alternative arrangements’ in general, because of the complexity and density of Ireland-Northern Ireland supply chains, especially as regards agricultural goods and the enforcement of SPS regulations. It’s also somewhat ironic to continue to float it even as the UK as a whole fails to implement controls on EU imports risking, as the NFU warned again last week, a “disastrous” food scandal. It is precisely the risk of spreading animal diseases and consequent impacts on the food chain that is one of the biggest practical objections to Mutual Enforcement.
Mutual Enforcement is also, as even its proponents recognize, a solution that relies upon high trust between the UK and the EU, trust that the UK, and the Brexiters in particular, have squandered, not least by breaking the original agreement and by constant ‘hardball’ threats to disapply it. Indeed, even as they push this high-trust solution, the Brexiters, including Johnson and Truss, are still insisting (£) that it is vital to continue with the Northern Ireland Protocol Bill, with its threat of unilateral disapplication, to ‘put pressure’ on the EU. If Mutual Enforcement could ever have been a technically viable proposal the Brexiters have ensured that it is politically impossible.
So, in the absence of a better solution, some version of applying the existing Protocol is all that is achievable. Even within that framework a better version than what Sunak is likely to have agreed with the EU would be possible, were it not for the Brexiters’ intransigent refusal to accept the EU offer of dynamic alignment of SPS regulations, which would do much to make the Irish Sea border thinner. Yet, for all their professed concern about political stability in Northern Ireland, they still prize an abstract ideal of ‘sovereignty’ above it.
What happens now?
Much of this continues to go round and round the same old debates and issues of the last seven years. But the context of Sunak’s current dilemma is somewhat distinctive. This is for several reasons, the first of which is Sunak himself. His central pitch is of being a ‘pragmatist’ who is ‘economically competent’ and a ‘problem solver’ which means that, more than was the case for Johnson or Truss, failing to resolve the stand-off with the EU would be reputationally damaging for him. Conversely, and especially given the government’s unpopularity and the severe ongoing economic problems, actions that might lead ultimately to a trade war with the EU, and the opprobrium of the US, would hardly demonstrate such pragmatism or economic competence.
Equally, opponents of his putative deal are not in the same position they once were. The DUP risk the impatience, especially of younger and less sectarian voters, at the prospect of the endless suspension of the Assembly and, with that, the festering of many bread-and-butter political problems (though it’s true they also face pressure from the even more extreme unionist parties). Bobby McDonagh, the former Irish Ambassador to the EU, argues that a Protocol deal would actually be in the DUP’s best interests.
As for the ERG, they may well find that provoking a political and perhaps economic crisis over a problem the public was told had been solved, and one most of them care little about anyway, will not be at all popular. That’s all the more so given that most voters think Brexit was a mistake that has damaged the economy, and at a time of food shortages which are attributable in part to Brexit. The Brexit Ultras may even reflect that, egged on by Johnson for his own transparently self-interested reasons, they risk creating, or hastening, the implosion of the government and the Tory Party altogether.
At all events, it’s hard to see how Sunak can postpone things much longer. Apart from anything else, doing so isn’t cost-free. It takes up political time and energy, and saps the UK’s international reputation at a time when Ukraine, in particular, requires international cooperation. It leaves UK participation in Horizon Europe on hold. It leaves Northern Ireland in limbo. Perhaps worst of all, because it leaves open the ultimate possibility of trade sanctions from the EU, it has a dampening effect on investment, already chilled by Brexit itself. Conversely, as Bloomberg reported this week, reaching a sustainable deal would give a major boost to investment and economic growth.
To a slightly lesser extent, all of this also applies if the outcome is, as some Conservatives are suggesting, some kind of ‘fudge’ in which Sunak gets a deal but it is not accepted as an end-state, with Brexiters continuing to agitate for further changes and negotiations and Sunak at least indulging that possibility. One way he might do that would be to continue with the Northern Ireland Protocol Bill, albeit holding off making use of its powers, to persuade the ERG that it might be used in some further negotiation. Doing so would continue the pattern of Tory leaders trying to ‘manage’ the ERG when national, if not party, interest requires standing up to them robustly. I doubt he has the stomach for that, though.
Finally, apart from all the other costs of not reaching an agreement with the EU, capitulating to the ERG will not solve Sunak’s political problems either. The existing Protocol would still be in place and hence, presumably, so too would the DUP’s refusal to allow the Assembly to sit. Within the Tory Party, such capitulation would inflame the increasingly vociferous ‘pragmatist’ faction, who are threatening to vote down the NIP Bill if it continues its passage as, in this scenario, it surely would. (They would also presumably do so if, as a sop to the ERG, Sunak chose to continue with the Bill even after having done a deal.)
So, returning to the general themes with which I began, whatever Sunak does now it will not resolve the schism in Conservatism. Whether he over-rides the Ultras or capitulates to them it will continue, and may well intensify quickly. In terms of re-setting relations with the EU, over-riding the Ultras and doing a deal will certainly help, but less so if it is only seen as a temporary fix, as just described, or if accompanied by a ‘consolation prize’ in the form of, say, continuing at pace with the Retained EU Law Bill.
For now, as so often before, we are enduring the ‘will they, won’t they’ Theatre of the Absurd of Brexit. And, as always, the outcome hinges on the perpetual civil war within Conservatism and the perpetual dance around the deranged sensibilities and insufferable arrogance of the political grotesques who prosecute it.
*I continue to use the term ERG, in line with the media and for ease of exposition. But the actual membership of the ERG is reported to be dwindling, and the Brexit Ultra opposition to the NIP, and potentially to Sunak’s deal, within the Tory Party is much wider.
In both posts, I made the obvious point that a key moment in all these issues was approaching, in the form of a possible deal over the operation and application of the Ireland/Northern Ireland Protocol (NIP). That moment has now arrived in that, although the anticipated announcement of that deal this week didn’t happen, the pre-announcement politics have become intense.
It seems certain an agreement won’t be unveiled until at least next week, and what then happens will have potentially major implications for the country, UK-EU post-Brexit relations, the Tory Party and Rishi Sunak’s premiership. The implications are no less great if, after all the indications of an imminent resolution, Sunak suddenly announces that he hasn’t been able to reach a deal. And he surely can’t continue much longer without doing one or the other.
In the meantime, this provides an opportunity to take stock of where we are now, how we got here, and what may happen next. As ever with Brexit, it’s a complicated story.
Where are we now?
Last Friday it was reported (£) that Sunak “appears determined to take on Tory Eurosceptics by striking a compromise with Brussels”. On Sunday the story was (£) that Sunak was ‘pausing’ the deal because of ERG and DUP opposition, but by Monday we were told he was ‘pressing ahead’ despite this opposition which, on Tuesday, he was “relaxed” about. Such contradictory reports have continued all week, under cover of repeated claims from the government that there is ongoing “intensive work” with the EU. But Tony Connelly, RTE’s invariably reliable Europe Editor, tweeted that, but for a few loose ends, the substance of the talks had finished last weekend. So it really does come down to Sunak’s domestic political management now, which is unfortunate given that, in Anand Menon’s words, he is “truly awful” at politics.
It’s not clear what he is waiting for, since it is unlikely that there is much else he can do to satisfy his anticipated opponents if they stick to their maximalist demands. Perhaps some haggling might buy off the DUP, but there is no public sign that is in prospect. Nor is there any sign of the ERG* withdrawing their opposition to anything that it’s likely Sunak could have negotiated with the EU, even if that includes the quite substantial concessions on setting VAT and other taxes and on state aid provisions which some reports have claimed.
It may be that Sunak is hoping that will change under the influence of Northern Ireland Secretary and former ERG Chair Chris Heaton-Harris, who is widely reported to be enthusiastically supporting (£) whatever has been agreed. That hope would be further raised if Northern Ireland Minister Steve Baker, another ex-Chair of the ERG, endorsed the agreement but, conversely, if rumours he may resign over the agreement come true that would surely boost a rebellion.
It's also not at this point clear whether there will be a parliamentary vote on any deal. There is no legal requirement for one. Although in response to Keir Starmer at Prime Minister’s Questions (PMQs) on Wednesday Sunak said that Parliament would be able “to express its views”, that could be interpreted either way. But, even if none were proposed by the government, the ERG might find a way to engineer a vote. If so, the government would win with Labour support, which itself would be damaging to Sunak.
It’s also possible that Labour (or perhaps the SNP) could table an Opposition day debate, not with a view to defeating the government but exposing Tory divisions. It was certainly telling that Starmer used all six of his PMQs to ask about the Protocol, given his habitual reticence on anything Brexit-related. But this is one Brexit area where Labour feels on safe ground and, indeed, Sunak’s rather weedy attempts to dismiss Starmer’s approach as rooted in opposition to Brexit and a willingness to “surrender” to the EU hardly made sense given that he supports Sunak’s policy.
But, vote or no vote, if the ERG decide to exact revenge on Sunak they have plenty of ways of doing so. There are already threats of ministerial resignations (£), and with Boris Johnson stirring the pot and the strong possibility of poor results in the May local elections, who would bet against yet another Tory leader being toppled, ludicrous as that would be?
How did we get here? A very brief history of dishonesty
It’s easy to imagine that some in the general public hearing news reports about the NIP this week are puzzled. Surely Brexit was ‘done’ some time ago, and all the parliamentary rows about it a thing of the past? After all, that was exactly what voters were told would happen if Johnson won the 2019 General Election. But, of course, it was a lie, and it was a lie that grew from a series of earlier lies and led to countless more.
Those lies started before the Referendum, when Johnson and others insisted that a vote to leave the EU would have no implications for the Irish border, or for the Belfast Good Friday Agreement (GFA) and the associated peace process. In doing so, they dismissed or ignored explicit warnings to the contrary. This still lies at the heart of some Brexiters’ opposition to the NIP: they don’t believe any need for it exists.
This isn’t the place to reprise all the twists and turns of the search for magical ‘alternative arrangements’ which would square the circle of a border being unavoidable but there being no place where a border would be politically acceptable. Such arrangements were never found, and even Shanker Singham, the Brexiters’ go-to trade expert, who chaired the Alternative Arrangements Commission, recognized that on the core issue of Sanitary and Phyto-Sanitary (SPS) regulations there is no alternative other than for Northern Ireland to follow the same rules as Ireland (and therefore the EU). Yet, extraordinarily, this week Brexiter Bernard Jenkin was again floating ‘alternative arrangements’ for an Irish land border as the solution.
In due course Theresa May came up with the solution of the backstop, which the Brexiters rejected as they claimed it would mean the UK remaining in a permanent customs territory with the EU. It most likely would have done, although in principle it would only exist ‘unless or until’ alternative arrangements were in place. That this didn’t satisfy the Brexiters demonstrated that they knew that their claims about the feasibility of alternative arrangements were also lies.
So Johnson came up with ‘the front stop’, the basis of the NIP, which created an Irish Sea border. But he lied about that, too, denying that it meant such a border. It seems likely that he also lied by telling ERG MPs that the arrangement was only temporary (see also revelations made by Dominic Cummings). Johnson then sold it as the oven ready deal to voters, and the Brexiters – Tory MPs and Tory and Brexit Party MEPs – subsequently voted for it in both the UK and European Parliaments.
Ever since, there has been a torrent of lies about it, many of them told by David Frost who negotiated the Protocol apparently unburdened by the knowledge of just how awful it was. If only he were capable of such reticence now. These lies include that it was only agreed under duress because the ‘remainer parliament’ had deprived Johnson of the ‘leverage’ of ‘no deal Brexit’; that it was only ever intended to be temporary; that the consequences of it weren’t known; that the EU wasn’t expected to apply it too literally; that it has damaged the Northern Ireland economy.
Throughout all that, there has also been a torrent of legal and quasi-legal nonsense about how Article 16 could be used to get round the Protocol (it wouldn’t), about how Article 13.8 means the Protocol was not permanent (it doesn’t), about whether the Protocol violated the GFA (see below), and about how parliament has the sovereign right to over-ride international law (it doesn’t). Such claims come and go, are endlessly discredited, only to re-appear. At the same time, it shouldn’t be forgotten that, almost since it came into force, the UK flouted its provisions by unilaterally extending several of the ’grace periods’ for implementation. Meanwhile, in Northern Ireland itself, the DUP used the Protocol as a justification to collapse the power-sharing institutions.
None of this should be shrugged off as ancient history. This edifice of lies isn’t just what created the current mess, it is also what needs to be demolished if there is ever to be any prospect of genuine progress.
The Protocol and the Belfast Good Friday Agreement
Within all of the lies, one which has again featured prominently this week warrants more detailed discussion. Although the ERG and the DUP are advancing similar arguments against agreeing any changes to the NIP short of, effectively, scrapping it, the two are not the same and have different interests. The ERG showed, in backing Johnson’s deal, that they didn’t ultimately give tuppence about the unionist case against the Protocol. It suits them now to say that the DUP must be satisfied so that the Northern Ireland Assembly and Executive can be restored, just as it suits them to say that the NIP jeopardises the GFA. But that isn’t what they said at the time when Johnson explicitly stated in Parliament that it was “fully compatible” with the GFA.
As usual, there are numerous different strands to disentangle in all this. One is the persistent claim from the DUP, now taken up opportunistically by the ERG, that the NIP violates the principle of ‘cross-community consent’ in the GFA. But this principle doesn’t apply to making international treaties such as the NIP, and the Supreme Court has ruled that the Protocol doesn’t violate the Northern Ireland Act (the legislation which implemented the GFA in the UK). Perhaps even those of us lacking the legal eminence of the Supreme Court might have suspected that any case whose applicants included Ben Habib and Kate Hoey might have flaws. In particular, and amongst other things, its ruling rejected the claim that the Act required a referendum in Northern Ireland on the Protocol on the basis of it being a ‘constitutional change’. In any case, if that claim had any logical (let alone legal) force then it would surely apply to Brexit itself, which didn’t have majority support in Northern Ireland.
However, the invocation of the GFA is more political than legal. The Brexiters bitterly resent the extent to which the EU and Ireland successfully established that the GFA must be honoured by not creating a land border in Ireland. But they realised that this was a powerful legitimating argument and, in particular, one that had traction in the US, especially once Joe Biden came to power. So they co-opted it to bolster international support as well as to give them domestic cover. That started under Johnson, with, for example, the visit of the then Foreign Secretary Dominic Raab to the US in September 2020 (just as footage emerged that he had not even read the GFA) and continued after Biden’s election with, for example, the visit of ‘special envoy’ Conor Burns last June.
Notably, this no longer seems to be a line which Sunak is pursuing and, indeed, it is precisely the fact that he seems to have accepted the basic architecture of the NIP which explains ERG and DUP suspicions of an imminent ‘sell-out’. But it is a line the ERG/DUP are still pushing hard, as for example in Iain Duncan Smith’s article in the Sunday Telegraph (£) this week. It was a particularly repellent piece in the way the way it invoked the killings during the Troubles, when Smith himself had been a soldier in Northern Ireland. For despite the emotional blackmail of his lament that “given so much sacrifice, I cannot understand why we would risk its demise now” he not only voted for the Protocol but derided those calling for lengthy debate or scrutiny of it.
Nor should it be forgotten that, before the referendum, the then Northern Ireland Secretary and ERG member Theresa Villiers said it was “highly irresponsible” even to mention the possible effect on peace in Northern Ireland. It strikes me that then was exactly the time when it was responsible to do so, and massively irresponsible to leave it until now to do so.
The problem isn’t the NIP, it’s Brexit itself
With that said, and whatever the legalities of the GFA, it’s undeniable that the NIP has caused a major political problem in Northern Ireland. The DUP’s refusal to participate in the power-sharing institutions may be unjustifiable, especially given the consent mechanism which, as things stand, would be satisfied since a majority of current MLAs support the Protocol, as, indeed, do the majority of people in Northern Ireland. Yet the political reality of the DUP’s stance can’t be ignored and, certainly, the unhappiness amongst many in the unionist community shouldn’t be ignored. That the DUP’s own support for Brexit has contributed to this situation is true, and an effective debating point, but it doesn’t affect that political reality. In this sense, although I disagree with it in many respects, Tom McTague’s article in UnHerd this week about the concerns of unionists has some validity.
But this, rather than the GFA narrowly conceived, reveals the real issue that John Major and Tony Blair warned about so forcibly, but to so little effect, before the Referendum. In Major’s words at the time, a vote to leave would mean “throwing all of the pieces of the constitutional jigsaw into the air”. He has been proved right. Brexit threw a huge rock into the delicately calibrated mechanisms and compromises of the entire peace process, the ground from which the institutional fruit of the GFA and the NI Assembly grew.
Moreover, once Brexit became defined as hard Brexit it created the infamous ‘Trilemma’ to which there is no solution (or, more accurately, no solutions other than abandoning hard Brexit, or Irish re-unification). The addition of the need to keep the Assembly operational being adopted as a requirement, not just of the DUP but of the UK government, has added a fourth leg to that to create what in the past I have called the ‘Quadrilemma’ (a usage which, alas, hasn’t caught on).
In short, the problem isn’t the Protocol, it’s Brexit itself. There is no solution, or certainly no good solution, and the Brexiters have signally failed to come up with one. For the most part they now airily say that ‘Mutual Enforcement’ is the answer (and yet another version of it has been wheeled out this week). But it is one that has been considered and found inoperable, principally, as with 'alternative arrangements’ in general, because of the complexity and density of Ireland-Northern Ireland supply chains, especially as regards agricultural goods and the enforcement of SPS regulations. It’s also somewhat ironic to continue to float it even as the UK as a whole fails to implement controls on EU imports risking, as the NFU warned again last week, a “disastrous” food scandal. It is precisely the risk of spreading animal diseases and consequent impacts on the food chain that is one of the biggest practical objections to Mutual Enforcement.
Mutual Enforcement is also, as even its proponents recognize, a solution that relies upon high trust between the UK and the EU, trust that the UK, and the Brexiters in particular, have squandered, not least by breaking the original agreement and by constant ‘hardball’ threats to disapply it. Indeed, even as they push this high-trust solution, the Brexiters, including Johnson and Truss, are still insisting (£) that it is vital to continue with the Northern Ireland Protocol Bill, with its threat of unilateral disapplication, to ‘put pressure’ on the EU. If Mutual Enforcement could ever have been a technically viable proposal the Brexiters have ensured that it is politically impossible.
So, in the absence of a better solution, some version of applying the existing Protocol is all that is achievable. Even within that framework a better version than what Sunak is likely to have agreed with the EU would be possible, were it not for the Brexiters’ intransigent refusal to accept the EU offer of dynamic alignment of SPS regulations, which would do much to make the Irish Sea border thinner. Yet, for all their professed concern about political stability in Northern Ireland, they still prize an abstract ideal of ‘sovereignty’ above it.
What happens now?
Much of this continues to go round and round the same old debates and issues of the last seven years. But the context of Sunak’s current dilemma is somewhat distinctive. This is for several reasons, the first of which is Sunak himself. His central pitch is of being a ‘pragmatist’ who is ‘economically competent’ and a ‘problem solver’ which means that, more than was the case for Johnson or Truss, failing to resolve the stand-off with the EU would be reputationally damaging for him. Conversely, and especially given the government’s unpopularity and the severe ongoing economic problems, actions that might lead ultimately to a trade war with the EU, and the opprobrium of the US, would hardly demonstrate such pragmatism or economic competence.
Equally, opponents of his putative deal are not in the same position they once were. The DUP risk the impatience, especially of younger and less sectarian voters, at the prospect of the endless suspension of the Assembly and, with that, the festering of many bread-and-butter political problems (though it’s true they also face pressure from the even more extreme unionist parties). Bobby McDonagh, the former Irish Ambassador to the EU, argues that a Protocol deal would actually be in the DUP’s best interests.
As for the ERG, they may well find that provoking a political and perhaps economic crisis over a problem the public was told had been solved, and one most of them care little about anyway, will not be at all popular. That’s all the more so given that most voters think Brexit was a mistake that has damaged the economy, and at a time of food shortages which are attributable in part to Brexit. The Brexit Ultras may even reflect that, egged on by Johnson for his own transparently self-interested reasons, they risk creating, or hastening, the implosion of the government and the Tory Party altogether.
At all events, it’s hard to see how Sunak can postpone things much longer. Apart from anything else, doing so isn’t cost-free. It takes up political time and energy, and saps the UK’s international reputation at a time when Ukraine, in particular, requires international cooperation. It leaves UK participation in Horizon Europe on hold. It leaves Northern Ireland in limbo. Perhaps worst of all, because it leaves open the ultimate possibility of trade sanctions from the EU, it has a dampening effect on investment, already chilled by Brexit itself. Conversely, as Bloomberg reported this week, reaching a sustainable deal would give a major boost to investment and economic growth.
To a slightly lesser extent, all of this also applies if the outcome is, as some Conservatives are suggesting, some kind of ‘fudge’ in which Sunak gets a deal but it is not accepted as an end-state, with Brexiters continuing to agitate for further changes and negotiations and Sunak at least indulging that possibility. One way he might do that would be to continue with the Northern Ireland Protocol Bill, albeit holding off making use of its powers, to persuade the ERG that it might be used in some further negotiation. Doing so would continue the pattern of Tory leaders trying to ‘manage’ the ERG when national, if not party, interest requires standing up to them robustly. I doubt he has the stomach for that, though.
Finally, apart from all the other costs of not reaching an agreement with the EU, capitulating to the ERG will not solve Sunak’s political problems either. The existing Protocol would still be in place and hence, presumably, so too would the DUP’s refusal to allow the Assembly to sit. Within the Tory Party, such capitulation would inflame the increasingly vociferous ‘pragmatist’ faction, who are threatening to vote down the NIP Bill if it continues its passage as, in this scenario, it surely would. (They would also presumably do so if, as a sop to the ERG, Sunak chose to continue with the Bill even after having done a deal.)
So, returning to the general themes with which I began, whatever Sunak does now it will not resolve the schism in Conservatism. Whether he over-rides the Ultras or capitulates to them it will continue, and may well intensify quickly. In terms of re-setting relations with the EU, over-riding the Ultras and doing a deal will certainly help, but less so if it is only seen as a temporary fix, as just described, or if accompanied by a ‘consolation prize’ in the form of, say, continuing at pace with the Retained EU Law Bill.
For now, as so often before, we are enduring the ‘will they, won’t they’ Theatre of the Absurd of Brexit. And, as always, the outcome hinges on the perpetual civil war within Conservatism and the perpetual dance around the deranged sensibilities and insufferable arrogance of the political grotesques who prosecute it.
*I continue to use the term ERG, in line with the media and for ease of exposition. But the actual membership of the ERG is reported to be dwindling, and the Brexit Ultra opposition to the NIP, and potentially to Sunak’s deal, within the Tory Party is much wider.
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