Friday 1 July 2022

The non-drama that could become a real crisis

Having last week written some thoughts about the next six years of the Brexit process, this week has had a distinctly ‘back to 2019’ feeling about it with the passing of the second reading of the Northern Ireland Protocol Bill (NIPB) in the House of Commons on Monday.

On the one hand, this is the legislation which would unilaterally rip up the Protocol that – it is hard to overstate the sick absurdity of this – in 2019 Boris Johnson’s government claimed to be a negotiating triumph that would ‘get Brexit done’, but which it now regards as totally unacceptable.

On the other hand, it is almost as if we were back to the parliamentary dramas of 2019, and all the gripping debates and votes of that extraordinary year. Almost, but not quite. For one thing, the government has a sizeable, albeit surprisingly brittle, majority. For another, the event was fairly low key. Foreign Secretary Liz Truss’s opening speech trotted out the predictable justifications for this unjustifiable Bill, with no glimmer of responsibility let alone contrition for the government having agreed the Protocol in the first place, and for the most part the debate followed equally predictable lines.

Yet, undramatic as the debate generally was, we might once have thought it remarkable that a former Prime Minister – Theresa May – should, with clinical accuracy, tell the government of her own party that its proposed legislation broke international law. Nowadays, though, so debased has the government become that it hardly elicits a passing headline. After all, it’s less than two years ago since the government itself quite openly announced its willingness to act illegally when the Internal Market Bill (IMB) was proposed. And, for all her ire, May herself did not feel sufficiently incensed to vote against the government, merely, along with a handful of other Tory MPs, to abstain.

The current NIPB situation

There are several possible interpretations of the current situation. One is that the second reading of the Bill is not the crucial moment. It has to go through many more stages, including what is likely to be substantial opposition in the House of Lords, before it becomes law. So May and other Tory critics of the Bill will have their chance to strike later. Another view is that, by contrast, when the objection is so fundamental as to regard the legislation as breaching international law it behoves its critics to oppose it wholeheartedly from the outset. It’s not as if any conceivable amendments could make it acceptable when the very principle of the Bill is objectionable.

On this point, it’s worth recalling that, throughout the entire Brexit process, Tory MPs on what might at different times have been variously called remainers, soft Brexiters, pragmatists, One Nationers, or semi-sensibles have been far, far less ruthless and less willing to rebel than their ERG counterparts. It used to be said that ‘loyalty is the Tory Party’s secret weapon’, but in recent years, if that has had any truth at all, it has only applied to the more traditional backbenchers. It hasn’t been true of the ERG, whose loyalty is solely to their own ‘party within a party’ and its priority of an ever more extreme position on Brexit. On this occasion, the ERG’s ludicrous ‘Star Chamber’ has signalled satisfaction (£) with the proposed legislation – as well it might, since it goes well beyond what even David Frost had been considering – but no one can doubt that, were it not satisfied, the ERG would act en bloc to vote against the government without any hesitation. That matters for what may be coming next, which I’ll return to.

A third interpretation is that potential Tory rebels like May will go along with the legislation in the expectation that, during its passage, some deal will be done with the EU so as to obviate the need for it, as happened with the illegal clauses of the IMB. Or, a different version of a similar idea, that they will accept it being passed in the expectation that its powers won’t be used, with a deal being done with the EU post-enactment, or perhaps that they will get it amended to require a further 'meaningful vote' (back to 2019 again!) to be held before its powers can be used.

On any interpretation there’s some way to go, because it may take the rest of the year to pass the legislation. But at some point during or after the passage of the NIPB there is a real possibility of this going very badly wrong, not just for Johnson and his government, but for the country.

As many analysts, including, most eloquently, Anton Spisak of the Tony Blair Institute, have pointed out, several of the proposals in the NIPB – notably those on so-called ‘dual regulation’ (i.e. NI firms choosing whether to produce and/or import goods which conform to either UK or to EU regulations) and on governance (i.e. removing almost all ECJ's role) – are simply unacceptable to the EU (and also opposed by Northern Irish business groups). Moreover, the NIPB mechanism of threatening unilateral changes removes all goodwill, as well as being seen as undermining the international order and the Western alliance at a crucial time. As Maros Sevcovic said in answer to a question this week “we are not going to negotiate when you have a gun on the table”. Indeed there are clear signs that both the EU, and key member states including Germany, have simply run out of patience with Johnson's government.

Thus, although the EU will continue to negotiate on the implementation of the Protocol, the NIPB has made it even less likely that it will agree anything even close to what the UK wants.

Johnson is backing himself into a corner

That would leave Johnson with only two options, neither of them good. If, either during or at the end of the NIPB legislative process, he climbs down with the EU, having incited the expectations of the ERG, his premiership is probably finished. It has to be understood that the Brexit Ultras have never accepted the need for, or legitimacy of, the Protocol or, in some cases, for any Protocol. They believe, I think genuinely, that the Protocol was going to be ditched and will hold Johnson to what he seems to have promised them, or at the very least allowed them to believe, about doing so. For that matter, Truss, now a sort of born-again Ultra, claims that she had only endorsed the original Protocol in the belief it would be changed. However, if Johnson pushes on to both pass and make use of the NIPB, perhaps ultimately leading to a trade war or at least significant EU retaliation, he might also be finished off by the other wing of his party.

What happens following either of those two scenarios is speculative, but would very likely be a leadership contest that could almost certainly only be won by a hard-line candidate promising to continue the battle with the EU to scrap the Protocol. In this sense, it would be wrong for decision-makers in the EU to view the current situation simply in terms of the travails of Johnson’s leadership: these are merely a particular manifestation of the continuing dynamics of the Tory Party and of Brexit itself, albeit given an extra twist by Johnson’s own character and conduct.

Admittedly it’s possible that there is a third scenario in which, as so often with Johnson, he finds some way of clinging on – it’s already notable the extent to which he’s using Ukraine as a life raft – and that he finds some fudges over the Protocol that enable him to keep going. For example, some version of the UK’s red and green lane proposal might conceivably be agreed, as it’s not a million miles from the EU’s ‘express lane’ proposal. But not only does that fall well short of what the NIPB says is vital, and what the ERG will continue to demand, it is also in itself unacceptable to hard line unionists (nor is it seen as workable by business groups).

So what is more probable is that, as has always been incipient in the Brexit process, this will be the point that the force of the Brexit Ultras’ unrelenting demands will finally collide with the unmoveable object of the core needs of the EU. If that is so, then not just the government but the country itself will be in a horrible mess, both economically and politically.

At the moment, what is happening with the NIPB probably doesn’t interest voters very much except in Northern Ireland (and, there, only 38% agree that unilateral action by the UK, as entailed by the NIPB, would be justified*), although as a new post on the LSE British politics blog argues, the Protocol and what happens about it has a direct and significant impact on Wales, and its ports especially. But as the NIPB process develops it may well, and certainly ought, to begin to register with a wider section of the public across the UK that Brexit was not ‘done’ in 2019-2020.

Similarly, whilst the NIPB has already caused the EU to commence/recommence legal actions and, perhaps more seriously, further delayed UK access to the Horizon programme, these things don’t directly impinge on the public. But if the NIPB is passed, and even more if it is used, then the UK is likely to face escalating economic sanctions. And though it’s likely that any significant retaliations from the EU will create a media-stoked bellicose nationalist backlash, it must also be likely that large swathes of  the public will conclude that Britain, whose “battered economy is sliding towards a breaking point” according to a Bloomberg article this week, simply can’t afford year after year of Brexit aggravation solely to satisfy the insatiable desire of the Brexit Ultras.

The government has created an ‘Irish quadrilemma’

The other aspect of the mess that is in prospect relates to the politics of Northern Ireland itself. The Protocol was never acceptable to the DUP and many other unionists, and it is sheer dishonesty on the part of the government to pretend that it did not know this when it created it, or that unionist opposition is some kind of unanticipated peril. But, whether the DUP liked it or not, the Protocol was an international agreement and as such did not require cross-community consent to create it. Nor does the periodic consent mechanism, with a vote in the Northern Ireland Assembly (NIA) on whether to continue with the Protocol, require cross-community consent, only the majority support of its members.

That it involved agreeing something which both he and Theresa May had said no Prime Minister could agree to is one of Johnson’s many shameful acts, the more shameful as it is clear that he never intended to stick to it. But what has happened since is in some ways even worse. For ever since the DUP’s refusal to take part in the power-sharing institutions following the NIA elections, the government has been pretending that cross-community consent to the Protocol is required, as part of an attempt to claim that it violates the Good Friday Belfast Agreement, even though at the time of creating the Protocol in October 2019 Johnson explicitly said the two agreements were "fully compatible" making specific reference to there being no need for cross-community consent.

In consequence of having now done a 180 degree turn on that position, if the UK and the EU don’t now agree something that satisfies the DUP then a continued or renewed boycott of power-sharing has been legitimated. And it’s unlikely that any outcome agreed with the EU will satisfy the DUP, because, whilst the DUP opposes the Protocol in its entirety, it has, as its latest publication on the subject shows, got no proposals for what to put in its place other than “free and unfettered trade within the United Kingdom” which is unachievable under Johnson’s Brexit. Moreover, if only for electoral reasons, the DUP is unlikely to accept any agreement because of pressure from the even more hard-line unionist groups.

The other side of this is that, even if there were any agreement between the UK and the EU which coaxed the DUP back into power-sharing, it would very possibly be unacceptable to the nationalist and non-aligned parties and their communities which, broadly speaking, support the present Protocol or at least a relatively unchanged version of it, and reject the approach of the NIPB. So what if they, and specifically Sinn Fein, then say that they won’t participate in the power-sharing institutions because this agreement, whatever it is, does not have the cross-community consent that the government have now set up as a requirement for it to be acceptable?

Thus the ludicrous – but not funny – situation has been set up whereby, in broad terms, those who don’t want Brexit itself (which of course had no cross-community consent) but who, given it happened, support the Protocol are now pitted against those who did want Brexit but don’t accept the consequences that led to the Protocol – and each side has been handed a veto by virtue of the government having opened up cross-community consent as the necessary condition for the post-Brexit arrangements.

To put it another way, ever since 2017 Brexit has been impaled on the hook of the ‘Irish trilemma’: the fact that, out of the triad of hard Brexit, an all-UK Brexit, and no Irish land border, only two were possible. Johnson’s ‘solution’ was to forgo an all-UK Brexit, by creating an Irish Sea border. It wasn’t a very good solution, but it’s the one the government chose (albeit lying about what that meant). Yet, bizarrely – except from the perspective of those Brexiters who never understood, or accepted, the trilemma – it has ever since tried to undermine it. As a result, through its own folly with the NIPB, the government is now in the process of creating a kind of ‘quadrilemma’ by, effectively, creating a choice between an Irish Sea border and Northern Ireland devolved government.

An emerging crisis

We’re not quite at the point where that choice has to be faced up to. It’s possible that Parliament will avert the folly of the NIPB and, somehow, a way will also be found to bring the DUP back into power-sharing despite this. And it’s conceivable (though barely so) that some kind of version of the Protocol and Irish Sea border will be agreed that satisfies the EU and the ERG, and is acceptable to all sides in Northern Ireland. But there’s no point in denying that the ingredients for multiple and interlocking crises now exist: a crisis in UK-EU relations with consequent crises for the UK economy and for the UK’s international reputation, and a crisis in Northern Irish politics with, very possibly, a crisis in the UK-US relationship as a result.

So the rather undramatic events in parliament this week may well come to be seen as the start of these crises. But, in fact, they started when the hard Brexiters embarked upon their vandalistic project not just in ignorance of what it involved, but proud of that ignorance, and sneeringly dismissive of those who warned them of its dangers. The likely consequences of the NIPB are only one part of the damage now visibly unfolding as a result of this vandalism. Other examples are the growing impetus in calls for Scottish independence (which may or may not be damaging to Scotland, but would certainly be damaging to the UK), and, it should never be forgotten, the continuing pain of EU citizens in the UK.

That’s even without mentioning the economic damage already accrued and still to come, as discussed many times on this blog, for which the latest evidence (£) is the release of official figures showing the worst quarterly balance of payments deficit since such figures were calculated in 1955. That economic damage may become even greater than expected if the government continues on Nadine Dorries’ planned path of divergence from EU GDPR rules, which may well lead to the UK losing EU recognition of the adequacy of its data protection regime, whilst entailing a double regulatory burden for UK firms trading with the EU.

Similar problems may attend other divergences (£) emerging from Jacob Rees-Mogg’s ironically mistitled ‘Brexit benefits’ portfolio, whilst his decision to postpone the introduction of import controls has prompted fresh expert warnings of the “significant risks” to food safety this week (for explanation of the little-understood reasons why this is so risky, see the relevant sections of my post in April). Predictably, Rees-Mogg dismissed these warnings with a flippant tweet. That things so important to the country’s well-being should be in the maladroit but fanatical hands of circus freaks like Dorries and Rees-Mogg, who but for Brexit would surely never have had sight of, let alone got hold of, the levers of power, must itself be counted as one of the costs of leaving the EU.

Overall, as the latest round-up by Yorkshire Bylines’ indefatigable Brexit commentator Anthony Robinson shows, there’s now a growing consensus that Brexit ‘isn’t working’ even if there’s no consensus on why – hard line Brexiters, inevitably, ascribe it to betrayal – or on what to do about it. It seems that the ‘Brexit of small things’, to use the term coined by Tom Hayes, may be beginning to bite, with a new survey showing some 45% thinking Brexit has made daily life worse and just 17% better (34% think no difference). That shows an interesting shift from a year ago when the figures were 30% worse, 10% better and 56% no difference, which might suggest that as people have more experience of Brexit effects, those experiences are twice as likely to be seen as negative as positive.

More generally, the latest polls show that 54% think Brexit is going badly, and just 16% well (20% think neither), and I’m afraid it is going to get a lot worse before it gets better, if indeed it does. As ever, whilst much of the reason for that is inherent to Brexit, some of it is a result of the cack-handed conduct of the Brexit government, with the NIPB being the latest example. In that respect, too, there is little difference between now and 2019.



*For detail on opinions about the Protocol in Northern Ireland, see the latest (June) ‘Testing the Temperature’ report from Queen’s University Belfast.

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