The fact Britain will not try to fix the protocol’s problems using the treaty mechanisms renders the UK’s legal argument farcical.
No one is surprised that Boris Johnson is relaxed about breaking the law; the UK prime minister may yet lose his job for lockdown parties. But his decision to breach international law — proposing legislation to gut the Northern Ireland protocol of the UK’s post-Brexit treaty with the EU — should still horrify.
The protocol was a solution to a specific problem: if the UK diverged from EU rules after Brexit, how to avoid erecting a destabilising border for goods passing between Northern Ireland and the republic? Johnson’s negotiated solution was a fudge: leave the north aligned in some ways to Ireland and undertake checks on goods from Britain.
There are problems with the protocol. Plenty of unionists — people who cherish Northern Ireland’s place in the UK — are worried about the “Irish Sea border”. It has led to real-world effects: items missing from shelves and little bureaucratic reminders that Northern Ireland is a place apart. There should be efforts to address their anxieties.
But there are structures baked into the protocol to do that — and Johnson abandoned them. Negotiations stopped in February. The UK has not triggered the clauses built into the treaty for emergencies. There is a landing zone for a deal with broad support — in particular, proposals for different treatment for goods that will definitely not leave Northern Ireland.
The fact that Britain will not try to fix these problems using the treaty mechanisms renders the UK’s ostensible legal argument farcical: it, absurdly, claims there is no other option. But this bill is poisonous, even if voted down. Leaving aside its dubious legality, it is likely to prove counter-productive.
The stated reason for the government’s approach is to create the political space to allow Northern Ireland’s institutions to resume their work. The Democratic Unionist party, as the largest unionist party, can veto their operation. It is doing so over the existence of the protocol. Even now, however, the DUP has not relented.
The Johnson government must take the blame for this. Ministers have continuously stoked unionist grievances. And why would the DUP give in? London has made clear it will pander to intransigence.
The loser in all this is Northern Ireland. Most voters at the May elections backed parties who supported the protocol. The wishes of that majority are being ignored. A split society like Northern Ireland cannot be run by simple majoritarianism — but nor can it survive unionist opinion being elevated above the concerns of all others.
Some may calculate that this ruse will put pressure on the European Commission to cede ground. They are wrong. The main challenge for the EU is to find a way to signal clearly that it will enforce the law and will not be swayed by these tantrums. It should try to keep this low key. It knows Britain can ill-afford escalating this into a trade war — and the continent is trying to hold together for Ukraine.
In any case, who would want to negotiate with Johnson, who reneges so easily on deals? Diplomats have calculated that he may not have a majority for this law — and his government may collapse anyway. That, after all, is why we are here. A prime minister enfeebled by his own lack of personal discipline is now using Northern Ireland to win over Brexit zealots in his own party. Some of the demands are for the benefit of English rightwingers, not unionists.
Tory MPs of sounder judgment should help bury this legislation as quickly as possible. It is one thing to have a prime minister who does not observe lockdown rules. It is another to be careless with the international rules-based order.