(Photo by TOLGA AKMEN/AFP via Getty Images)

Protocol questions

Is Ulster how May’s sometime ministers will still get BRINO for Great Britain too?

Artillery Row

The “Remainer Parliament”, which held the government to ransom last year and saw a politically partisan speaker run amok, trashing convention and neutrality as he went, has been changed dramatically. Opposition figures like John Bercow, former Lib Dem leader Jo Swinson and the then shadow Brexit Minister Keir Starmer used to have real power. When they made representations to Brussels, the EU negotiators knew their visitors could influence the outcome of any Brexit deal in Parliament.

Now, when figures like the SNP’s Ian Blackford and acting Lib Dem leader Sir Ed Davey write a letter to Michel Barnier supporting an extension to the transition period, it generates little more than stale ultra-Leaver or diehard Remainer clickbait. The world has moved on, the action is elsewhere now. But many questions still remain about whether Brexit or BRINO is the likely outcome of government policy, with Northern Ireland still seen by many Brexiteers as being the way the UK will be kept closely aligned to the EU.

The negotiations fronted by the PM’s sherpa, ex-FCO staffer but now political appointee, David Frost, are the real substance of Brexit now. Boris Johnson is one of the most secure leaders in Europe with an 80 strong majority. He doesn’t have to face the public again for almost five years and his mandate is almost entirely on his ability to ‘Get Brexit Done’. Yet many Tory Brexiteers in parliament are alarmed at the number of areas in which he seems to be negotiating like Theresa May, most noticeably on the NI protocol (the latest incarnation of the backstop).

Boris Johnson famously told an audience of Northern Irish Conservative party members in June last year that “under no circumstances” would he allow anyone to create any kind of division down the Irish Sea. He repeated the claim on Sophie Ridge in December and was even filmed telling Northern Irish businesses: “there will not be checks, I speak as the Prime Minister as the United Kingdom and a passionate Unionist. There will not be checks on goods going from Northern Ireland to Great Britain”. He recommended that if any business was asked to fill in such paperwork, they should telephone the prime minister “and I will direct them to throw that form in the bin”. Many ERG figures believe the Withdrawal Agreement agreed by Boris Johnson last year was signed under duress, and have little regard for what they see as essentially blackmailed promises.

Boris Johnson had personally promised DUP leader Arlene Foster that the negotiations would be ‘reset’

The Prime Minister’s exact form of words was a characteristic sleight-of-hand. Thus while it’s true to say that goods moving from Northern Ireland to Great Britain would not be checked, goods moving in the other direction will be. For example, a firm in Northern Ireland selling finished aeroplane parts to a factory in Manchester would have no problem dispatching a shipment across the Irish sea, but they would have extra paperwork (at the very least on VAT) if they wanted to buy their paint from a company in Cardiff. It’s still hard to appreciate just how total and invasive the rules Michael Gove is easing into public view for everyday intra-UK trade will actually be.

The Government claimed today that there have always been agricultural checks in the Irish sea. Live animals are indeed checked since NI is in an all-island of Ireland animal health zone. But Michael Gove confirmed in the House of Commons that all agri-foods would now be checked, which means a Tesco lasagne, for example, would also be caught in the regulatory net, indicating just how vast the new infringements on supposedly British domestic business will be.

Other unanswered questions include what happens to digital sales from GB to Northern Ireland, or what happens to a lorry that departs from Glasgow,  partially unloads in Belfast before moving onto Dublin? Why, if there are no checks needed between goods from Northern Ireland moving into Great Britain, are checks needed from Great Britain into Northern Ireland? The spinners sent out to bat for No.10 amongst the ERG seem to have no answer.

Others ask why – since the Free Trade Agreement does not seem to be aimed at superseding the backstop and the UK would be bound by the backstop if there is no deal – there seemingly is no plan to keep the UK from being divided? Nor has there been any effort in the negotiations by the UK side to hold the EU to account for their bad faith as regards the Protocol deal itself. Which in theory requires best endeavours by the EU to do away with the UK-dividing policy. Why hasn’t Michael Gove made this a negotiating ask of Michel Barnier, many on the Tory Right wonder?

ERG suspicions deepen when they consider what effect signing up to the Protocol will have. Will it mean next to nothing in practice, as No 10 has assured them today? Or will it mean that that UK has legally committed itself to do things which turn out to be all too consequential, not least for the rest of the UK? In other words, will Northern Ireland after all be the means by which BRINO is achieved for Great Britain too?

When Boris Johnson’s ‘throw the form in the bin’ comment was put to Michael Gove in the Commons yesterday, he dismissed it because checks would be ‘made online’. This sophistry won’t apply, however, to the legal obligations the UK will impose on itself if it implements the Protocol. Quips will fly with neither British nor EU judges: thinking that they might seems an odd lesson to take from the recent behaviour of the courts.

In light of their much-improved political position, many Brexiteers are asking why all this is necessary. ERG figures believe the Withdrawal Agreement agreed by Boris Johnson last year was a tactical dodge made when the country was in a constitutional crisis and the opposition was preventing the UK leaving the EU – or from holding an election. One points to the fact that the members of the EU27, which the UK government addressed on almost every occasion as “friends and allies”, knew this and accepted his signature anyway.

In the recent legal text outlining the UK’s negotiating objectives there was nothing that addressed the issue of Northern Ireland being split off from the rest of the country. Why, ask Brexiteers, is the UK talking tough on stopping an EU opening a ‘mini embassy’ in Belfast but agreed to build border control posts to monitor goods crossing the Irish Sea? Noisily opposing the EU’s absurd demand for a district commissioner’s residence, while giving them all the legal certainty they need, would not be a normal negotiating triumph.

Boris Johnson had personally promised DUP leader Arlene Foster that the election meant the negotiations would be ‘reset’. But a source close to the DUP told me this promise has been forgotten and pointed out that the Irish sea border was agreed explicitly because of the threat of violence: anti-Brexit figures like John Major and Irish PM Leo Varadkar have regularly insisted that increased checks over the UK – Irish land border could spark a return of the troubles. Unionist sources also expressed irritation that the UK appeared to be bending over backwards to accommodate the Irish Republic:

“When will the Government realise that Dublin is not a friend? The last chance of cooperation left with [former Irish PM] Enda Kenny. Since then the Irish have wholeheartedly thrown their lot in with Brussels but London still hasn’t twigged.” 

Another point of concern that crops up amongst the ERG is why the Government decided to use a committee on which the EU has a veto – the UK-EU Joint Committee – as the mechanism by which to try to remove the backstop.

Legal sources suggest the UK could argue convincingly that if the EU makes outrageous demands on, for example, fishing rights, the EU Commission would have failed to use “best endeavours” to look at alternatives to the NI protocol as outlined in Article 184 of the Withdrawal Agreement. They say this would be grounds on which to declare the whole Withdrawal Agreement null and void. After all, Dominic Cummings once wrote in his blog that the Government could easily “dispense with these commitments” – a reference to the backstop in Theresa May’s Withdrawal Agreement. But nothing remotely robust as this is being cooked up in Number 10.

A dawning realisation for many Brexiteers who care more about Brexit than the union is the fact that the Northern Irish Protocol could be used as a back door to keep the entire UK under EU rules. To take just one example, as and when strict EU state aid rules (policed by the EU) prevent the UK government from building an airport in Northern Ireland, surely all GB-based suppliers would also be bound by these rules?

Some may suggest civil servants are still leading the charge against Britain’s exit  – but this is hard to argue. Whitehall is undoubtedly still pro-Remain but one insider familiar with the negotiations insists the civil servants dealing with Brexit are “top notch and fully on board with the political direction”. Nobody can scapegoat an Olly Robbins anymore for what are plainly political decisions made by politicians.

Perhaps the surest suspicion Brexiteers have over Ulster is the dog that’s not barking. If the government really is willing to countenance a No Deal (preposterously re-badged as an Australian Rules deal) that so many of its members were so vehemently against under Theresa May, not least Michael Gove, where’s the preparation for that outcome?

Realistically, if Britain leaves the EU without a deal agreed by the EU, they can and will put real pressure on the UK. Why would they not? In that case, what counter-pressure is the UK contemplating in order to defend its interests? By far the most obvious weak spot the EU has in this scenario is the Republic of Ireland and its border with the UK. It would be a political nightmare for the Irish political class to have to impose an EU border on the UK, or to be caught up in any form of de facto trade war between London and Brussels in the wake of a No Deal break. The EU is genuinely vulnerable in Ireland. Yet the supposedly No Deal-countenancing British government would, with the Protocol, have renounced all potential for exerting any counterbalancing leverage. We must be very confident about our ability to do a No Deal if we’re not proposing to fight back against the EU whenever and wherever possible.

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