So, it turns out that the original version of the Northern Irish Protocol wasn’t the best of both worlds after all. Nor was it the inevitable and necessary consequence of Brexit.
Those of us who were paying attention throughout the negotiations with the European Union knew this already, of course. But there has been a concerted effort by supporters of the Irish Sea border to pretend that it wasn’t really anything to do with them. This has the handy effect both of continuing to de-legitimise potential alternatives and shifting the blame for the badly misfiring arrangements onto the Brexiteers.
Brussels has now scotched that, though. For it turns out that there was a different, more flexible interpretation of the Protocol after all. Even though the two sides remain miles apart on what the final settlement for Northern Ireland should look like, both seem to be now agreed that it has to change. This is some progress from a few months ago, when the EU published a document purporting to show the various ways it had been flexible, in which the only substantive proposal was ‘temporary’ UK alignment on SPS checks.
However, there is clearly a danger here for the Government in excitable British headlines about winning the ‘sausage war’. By bigging up this one, quite absurd, feature of the dispute, Maroš Šefčovič may be hoping to hand the UK a ‘win’ without conceding anything substantive. Thus proposals to give special exemptions to a narrowly defined range of ‘identity products’ (such as sausages) rather than embrace wider reform.
Lord Frost should stick to his guns. The Government’s proposal – that goods from the mainland intended for Northern Ireland rather than onward sale should be exempt from checks and from Single Market regulations – is perfectly sensible. If Ulster is to remain inside the British common market, that is what that looks like.
It seems much less likely he will win any serious concessions on the role of the European Court of Justice. Although there have reportedly been talks about setting up some sort of arbitration mechanism which would make the ECJ a last resort, ultimately it would still be the final authority on EU law as it applies to Northern Ireland.
It is difficult to see how any iteration of the Protocol could sit comfortably with such top-level sovereignty concerns, which is why we ought never to have signed up to it. But having done so, it is equally hard to see a way out short of repudiating the whole thing (which merely triggering Article 16 does not do).
Nonetheless, one can see why the Government feels emboldened to keep pushing. For the best part of a year, it has been told variously that its confrontational approach to the Northern Irish problem was counter-productive and doomed, and that in any event the Protocol was a necessary and inevitable consequence of Brexit. Many of the commentators who held this line will now praise the EU for its flexibility and damn the UK for its intransigence without noting the dissonance.
So far, then, the British strategy I first outlined back in March seems to be working, and it looks as if ministers are sticking to it. Make the smallest move possible rather than the largest, and strive to appear the reasonable party. Keep Article 16 in reserve.
The question remains, however, what the end-game is. Has Frost put the ECJ on the table in order to try and secure a more expansive settlement on goods? Or is the Government really determined to push for changes that could see the entire deal collapse? Given that we’re already looking at a Christmas plagued by both an energy crisis and a shortage of lorry drivers, surely not…
Both sides will also need to square their proposals with the Unionists. After dividing over Brexit and initially on how to handle Ulster’s future relationship with the EU, the disastrous operation of the Protocol has now pushed all of the Province’s major pro-UK parties together.
Given Northern Ireland’s unique circumstances, such a bloc simply cannot be ignored – despite the best efforts of those who sought to justify the Protocol on the narrower basis of the business community, or border communities, or invoking the hazy threat of republican terrorism.
As I have pointed out previously, invoking the Belfast Agreement in a manner which seems to privilege nationalist concerns over Unionist ones risks undermining community consent for the whole thing. It isn’t good enough to accuse one side of ‘playing’ with the peace process when the other has insisted on imposing an arrangement with near-zero support amongst a community which increasingly views it as an existential threat to their national identity.
It’s a crying shame it took this long, and this level of united Unionist opposition – not to mention the Loyalist Communities Council withdrawing their support for the ceasefire altogether – for such concerns to start being taken seriously. But better late than never.
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