Friday 13 May 2022

For all the bluster, Johnson and the Brexiters still have no realistic answer to the 'Northern Ireland border' question

Last weekend’s results of the Northern Ireland Assembly (NIA) elections marked a significant moment both in the history of Northern Ireland and also in the Brexit process. That does not mean, as the front-page headline of last weekend’s Sunday Times had it – in line with many other reactions – that Sinn Fein’s victory “reignites Brexit tensions”. In fact, it is almost the other way around. The election result, with all the tensions it brings for Northern Ireland, is the latest manifestation of the ongoing fallout of Brexit. Just as Brexit is causing a ‘slow puncture’ of the economy, so is it gradually, and not always predictably, shifting the tectonic plates of politics. That is most evident in Northern Ireland.

The problem is Brexit

To say this was all but inevitable is not the wisdom of hindsight. In June 2016, two weeks before the referendum, former British Prime Ministers Tony Blair and John Major spoke at a joint event in Londonderry/Derry, and Major’s words captured exactly what Brexit would mean: “All the pieces of the peace process jigsaw would be thrown into the air and no one knows where those pieces would land”. It was prophetic both in the certainty of the disruption it predicted, and the uncertainty of how that would play out. Meanwhile, Blair pointed out the core issue, which has been present ever since, namely that border checks would be needed either between Ireland and Northern Ireland, or between Northern Ireland and Great Britain.

Needless to say, their warnings were derided by the Brexiters, none more so than those of the DUP. Nigel Dodds, then the Deputy Leader, called it “irresponsible nonsense” that was “dangerous and destabilizing”. Similarly, the then DUP Leader and First Minister Arlene Foster called the ex-PMs’ intervention “disgraceful” and then Northern Ireland Secretary and keen Brexiter Theresa Villiers said it was “highly irresponsible”. These condemnations were wrong then, and it is even more obvious now that Blair and Major were right.

Roll forward to 2019, when Boris Johnson came up with what he was to call his ‘oven ready deal’, and a great triumph for the negotiations led by David Frost, of which the key new element was a Northern Ireland Protocol (NIP) that created an Irish Sea border. Once again Blair and Major warned of its destabilizing effects on the peace process, and that it would divide the United Kingdom. This time round, the DUP agreed. Yet David Trimble, the former leader of the Ulster Unionists, who had played a key role in the Good Friday (Belfast) Agreement (GFA), pronounced Johnson’s deal “a great step forward” that was “within the spirit” of that agreement (he has since changed his mind). Crucially, in the House of Commons Johnson said his deal was “fully compatible with the GFA”.

Since then, what was already set to be a debacle has been worsened by the fact that Johnson’s government doesn’t accept the deal it agreed. Indeed, almost from the day Johnson signed up to it he and other Ministers denied that it entailed any sea border checks and, when that became impossible to deny, refused to implement key parts of the NIP and insisted that it must be, at the very least, substantially re-negotiated. Meanwhile, the DUP (and other unionist parties) want it to be scrapped altogether and for that reason will not participate in the power-sharing executive, making devolved administration impossible.

Bogus arguments about the GFA

There’s obviously much more that could be said about this back history (see, for example, Tony Connelly’s recent blog) but just from what I’ve provided here it’s obvious that the NIA election result represent an outgrowth of what Brexit set in train. It seems clear that the British government will now seek to use this result to re-intensify demands on the EU to change the NIP and, even, to threaten to change it unilaterally in defiance of international law. As this happens, it is important to recall that a majority of the seats in the NIA are held by parties which support the NIP, and also that the most recent opinion polls show that the NIP has the support of the majority of the people of Northern Ireland (Brexit itself, of course, did not have majority support there). That isn’t to deny that there is significant, deeply-felt and, indeed, justifiable opposition to it, which is putting significant strains on the GFA, but Brexit, and especially hard Brexit, meant that would be true under any arrangement – that was the whole point of the Blair-Major 2016 warnings.

The opposition to the particular arrangement Johnson agreed to inevitably comes (mainly) from unionists but, again, he was warned of that at the time and went ahead. It is that which gives the lie to the government’s current posture that the NIP has to be reformed in order to uphold the GFA. It always knew that the DUP and other unionists were opposed to it, but signed anyway. Why, if it is incompatible with the GFA?  It simply makes no sense now to claim that to be compatible with the GFA it must have the consent of both communities. Indeed in the very same passage that Johnson declared in the Commons that the NIP was fully compatible with the GFA, he criticised the idea “that it is thought necessary for one side or the other in the debate in Northern Ireland to have a veto on those arrangements” (i.e. the NIP) and said that the Brexit referendum itself mandated them. The consent mechanism was and is a majority vote in the NIA rather than a cross-community mechanism and, as the current situation shows, there is no automatic unionist majority in the NIA.

Nor can the justification be that the government didn’t understand what the NIP would mean in practice, and so it was only when its measures came into force that it realized it ‘violated’ the GFA. For one thing, the details of exactly what it would mean were spelt out at the time in the government’s own impact assessment of the Withdrawal Agreement, including the NIP. For another, the government was denying the meaning of what it signed and planning to avoid what was entailed within days of signing the Withdrawal Agreement with the EU, long before it came into operation. That is further illustrated by the fact that the initial extensions of the grace periods on some checks were agreed in order to allow businesses to prepare for them. Why do so if the checks were in principle incompatible with the GFA? Moreover, attempts by Brexiters to have the NIP declared legally incompatible with the GFA have twice failed in the courts (there is an appeal to the Supreme Court under way).

The politics of the phrase “in all of its dimensions”

In fact, the government’s reason for invoking the GFA is a geo-political one. It has been emphasised primarily because, at least since the election of Joe Biden, it has been made abundantly clear that the US will not countenance changes to the NIP unless they are agreed by both the EU and the UK, with the reason given invariably being the need to uphold the GFA. As a result, since at least March 2021, when the then Foreign Secretary Dominic Raab visited the US, the UK government has been pushing the line that its objections to the NIP are, indeed, that it undermines the GFA (for more detail, see my blog from that time). This remains the line being taken now, in Conor Burns visit to the US this week.

The ‘code’ that has emerged for this is for the government to speak of “upholding the GFA in all of its dimensions”. Apparently anodyne, it is meant to suggest that whilst accepting there can be no land border the UK also rejects a sea border, implying it is the EU’s insistence on this that undermines the GFA whereas, in fact, it was the UK’s preferred approach, to which the EU agreed. The idea, absurd as it seems, appears to be that this formulation will lead the US to support the UK as it, too, supports the GFA and that Biden and other US politicians will somehow not notice this linguistic trick to get out of the NIP. As diplomatic manoeuvres go, this one would be transparent to a gullible and not especially attentive five-year old.

It is in this context that the superficially rather bland official response from the US to the NIA elections should be read. In emphasising the importance of re-establishing the power-sharing executive as a core part of the GFA it implied a desire for the DUP – the only stumbling block to this outcome – to do so. Equally important is what it did not say and, in particular, the fact there is no mention of either the NIP or the EU. That doesn’t preclude US support for further changes to the way the NIP is implemented but the fundamental political reality is that the US, certainly under Biden, will never support the UK against the EU in this matter, and in particular will not do so against Ireland. Moreover, as the EU has shown consistently since 2016, it, too, will not accept anything that Ireland does not accept.

This therefore means that there is no possibility of the UK resolving the NIP unilaterally or not, at least, without becoming something close to being a pariah state. That is not changed by the Ukraine War, as some Brexiters imagine, partly because, whilst important, the UK isn’t a big enough player as regards the war, and partly because, if anything, the war makes both the US and the EU even keener to uphold the rules-based international order, which means sticking to international agreements. Already this week Biden has warned the UK not to act unilaterally, as has the Irish Taoiseach, and Maros Sefcovic re-emphasised that any changes will have to be bi-laterally agreed with the EU within the overall framework of the NIP.

In that respect, the EU has already made substantial concessions to the UK, most especially as regards securing supplies of medicines to Northern Ireland, which the UK has this week again rejected. It’s possible that even greater concessions could have been made had the UK government not squandered all trust through its conduct since, at least, David Davis disowning the phase 1 agreement within days of it having been reached in December 2017. The subsequent threats to illegally break the NIP and the extension of the grace periods without agreement made things even worse. The consequence is that the EU has good reason to suppose that, under cover of being trusted with even greater flexibilities, what the UK would actually do would be to cease to operate any border at all.

The same old question: where’s the border?

And that is what the EU won’t give up on, because it can’t. There has to be a border. This is something which the Brexit Ultras have never been able to understand or accept, even though it is the inevitable consequence of their own desire to leave the single market and customs union. That is: they want to have a different regulatory and tariff regime to that of the EU. Fine - but where, then, does this regime begin and end? The answer can only be at a border. But there is no place to put this border as regards Northern Ireland which is politically acceptable to everyone involved. This is exactly where the “in all of its dimensions” formulation falls apart if it is taken to mean neither a land border nor a sea border. For, in that case, where is the border to be?

The UK government still has no realistic solution to this, after years of trying to find one, for a very good reason: there is no solution. Brexiters went all around the houses trying to find ‘technological solutions’ to having an Irish land border and they did not materialise because, as Sabine Weyand, then the EU’s Deputy Chief Brexit negotiator, pithily observed in 2019 “they do not exist”. If further evidence is needed, it is that if they existed then they could be used to do away with the sea border, but they haven’t been.

Indeed, the failure to create a seamless sea border through technology amply justifies why the EU insisted in Theresa May’s Withdrawal Agreement that a ‘backstop’ be in place unless or until such technological solutions were available for the land border. Brexiters rejected May’s deal because, despite their claims to the contrary, they knew that there were no such solutions and therefore knew that the backstop would very likely end up being permanent. Their ‘solution’ became the ‘frontstop’ of the sea border that they never truly accepted and now disown.

Now the ‘solution’ has become, rather like the non-introduction of UK import controls, simply to act as if Brexit hadn’t happened and not to have a Northern Ireland border at all. Both are unsustainable in the long term, not just because of the EU’s need to maintain the integrity of its market but because, as Brexiters seem incapable of grasping, because of the UK’s need to maintain the integrity of its market. In any case, the decision about the Irish Sea border (unlike import controls) is not a domestic one, precisely because the government signed an international treaty which created it. This bad faith, and all that has flowed from it, is the not very heavily disguised sub-text of the EU chief negotiator Maros Sefcovic’s call on the UK, following the NIA election results, to “be honest” about the NIP.

What will the UK government do now?

There is little sign that the UK government will heed this call. It’s true that this week, after meeting the party leaders in Northern Ireland, Brandon Lewis put out a statement calling for all the parties to participate in the devolved institutions, and noting that negotiations with the EU over the NIP were the responsibility of the UK government and shouldn’t preclude that participation. So that was a clear reproof to the DUP for its refusal to do so until the NIP had been completely re-negotiated (and, in effect, scrapped).

Beyond that, however, government policy remains opaque. For well over a year it has been threatening the use of Article 16 and, more recently, that has morphed into the threat to unilaterally disapply much or all of the NIP by changing UK law. Most recently, it was rumoured that a Bill to do just that would feature in the Queen’s Speech on Tuesday of this week, but it did not. Yet, on the same day, it was reported that ‘next week’ Liz Truss will produce such a Bill, with the support of the Prime Minister. As noted above, this has already produced a flurry of warnings from the US, EU and Ireland, as well as the decision to send a heavyweight delegation from the US Congress to London and probably a special envoy from the US President to Northern Ireland.

At a certain point – perhaps already reached or passed – this posturing of endless threats with no action becomes laughable. Presumably it reflects sharp divisions within the government about how to proceed and, almost certainly, Johnson’s own indecisiveness. After all, one of the reasons behind Frost’s resignation was supposedly that Johnson had backtracked on using Article 16. Yet the subsequent idea of unilateral disapplication, which he apparently now supports, is far more extreme.

If this threatened legislation is announced, as now looks very likely, it would be a significant escalation, damaging to relations with both the EU and the US. However it’s important to understand that it still won’t be a decisive moment. It will take time for any legislation to pass, and when it is passed there’s likely to be a (long?) period in which Johnson threatens but does not necessarily invoke its provisions. In the meantime, the EU is likely to take some action – perhaps re-starting the legal cases over the grace period extensions, amongst other things – but negotiations are likely to continue, and I think an immediate full-on trade war is unlikely despite what some reports suggest (£). So the same dynamic of threats and possible backdowns of the last year or so will continue, albeit in an even more sour atmosphere.

It is obvious that the underlying issue is that which has dogged the entire Brexit process, namely the unresolvable political problem of the ERG and like-minded MPs. They will never willingly accept the realities of what Brexit means for, in this case, Northern Ireland and they are too strong simply to be told to do so. Thus, instead, the government keeps trying to appease them with threats of action against the EU, but can’t ultimately buck the realities. The result is this enduring limbo in which, if there is any discernible policy, it is the asinine one that if enough time passes then ‘something will turn up’. It’s even just about conceivable that we end up in the extraordinary situation where, in 2024 when the consent vote is due, the NIA endorses the continuation of the NIP whilst the UK government still insists it must be virtually scrapped.

There is a way forward

The strangest part of all this is that whilst, given Brexit, there is no truly satisfactory solution, there is a relatively simple way forward, which is compatible with the NIP and has been offered by the EU. It is for a UK-EU ‘Swiss-style’ Veterinary Agreement on Sanitary and Phyto-Sanitary (SPS) regulations, which would massively reduce the border checks needed between Great Britain and Northern Ireland (and, indeed, between GB and the EU). It’s true that this wouldn’t overcome the most hard-line Unionist objection to having any sea border at all, although the DUP actually advocated it at one stage, and it would surely bring things to the situation that David Trimble accepted to be in the “spirit of the GFA” (because that situation had included a sea border), and offer unionists a reasonable accommodation of their grievances.

So what is the obstacle to this approach? In the first instance, the answer is the ludicrous obsession of Johnson and Frost with ‘sovereignty’ at all costs, making May’s hard Brexit of leaving both single market and customs union even ‘harder’ by refusing all forms of regulatory alignment. This meant that even though, in practice, UK and EU SPS standards were the same, the UK would not commit to their continuing alignment. So, for the entirely dogmatic reason that the UK ‘could’ change standards if it wanted, even if in practice it didn’t want or need to, the EU’s offer of an SPS agreement was rejected.

To the extent this had any rational basis (not that it was strong), it was that a future trade deal with the US might or would require SPS divergence from the EU. But, leaving aside the contentiousness of that, there is currently no prospect at all of a US-UK trade deal, and were one ever to emerge then the UK could at that point diverge (with the consequence of re-instating SPS checks, of course) because the EU have said that an alignment deal could be temporary.

A government that can’t get real

At some point Brexit Britain needs – or ought – to get real about Brexit as a whole and especially about the NIP. That would mean, first, disavowing all of the nonsense still being peddled about it by the Brexit commentariat, egregious examples this week being Daniel Hannan’s frankly childish and factually flawed diatribe against EU ‘vindictiveness’, and a similarly unhinged analysis from Allister Heath (£).  It would mean ignoring David Frost’s now weekly outpourings (£) mis-explaining why he agreed the NIP along with increasingly idiotic proposals for how it should be scrapped. It would mean ignoring the likes of Rees-Mogg regurgitating the updated version of ‘they need us more than we need them’. And it would certainly mean replacing Suella Braverman with a better-qualified Attorney-General rather than following her patently dud legal advice. Probably anyone who had studied law for five minutes at the University of Wikipedia would be an improvement.

Collectively, these and similar people seem intent on repeating all their mistakes of the last six years, only this time worse. They have self-evidently failed, as some of them half-admit.

Fundamentally, getting real would mean recognizing that the core problem isn’t the NIP, still less the NIA election results, but Brexit itself. And whilst it is certainly too much to expect this government to undo that, they ought at least to take responsibility for having made things worse by the insanely dogmatic form of Brexit they insisted on. However, precisely because of the internal politics of the Tory Party, that is very unlikely to happen. A few years ago, something like SPS alignment would not necessarily have been impossible to get the ERG to accept but, now, having been appeased at every turn, they would certainly regard it as unacceptable backsliding.

The consequence is either the continuation of something like the present impasse, with Northern Irish politics paying an especially heavy price, or the government finally carrying out its threats to renege on the NIP, for which we will all pay a heavy price. Not least of those prices is the sheer shame many of us feel for having a government so morally and intellectually bankrupt that these are the only scenarios in realistic prospect.

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