Because they so frequently recur – examples include Nick Timothy (£) and Bernard Jenkin – I often want to make reference to them in blog posts. But because they are so convoluted and difficult to unpack doing so would make what are already long posts unbearably so.
So I have collected together the main lines, and some commentary upon them, here, so as to be able to simply link to it in future posts. Because they are so numerous and have so many sub-themes this is a work in progress which I will add to, including adding links to provide evidence. I’ve divided them into beliefs about the past and beliefs about the present/ future, but the two are clearly inter-linked.
Perhaps the most fundamental critique that applies to the entire idea of completely re-negotiating the NIP is that all of the reasons now given to justify doing so were concealed from the public in the crucial 2019 General Election, when Johnson promised that he had an unequivocally excellent and ‘oven-ready deal’ which would ‘get Brexit done’.
Beliefs about the past
1. that the Irish border issue is entirely, or almost entirely, concocted by the EU (and perhaps Ireland) as a means of stymieing Brexit and of keeping at least part of the UK within the EU’s regulatory orbit and/or as a ‘price to pay’ for Brexit. Sometimes this claim is tied to comments made by individual EU politicians or officials. From this foundational myth almost everything else flows: Brexit Ultras, at least, believe that all solutions are unnecessary because they still think the problem is invented.
Comment: This is simply ignorance combined with paranoia. The need for a border was the inevitable consequence of exiting the single market (SM) and customs union (CU) which, in different ways, removed pre-existing borders. Far from being concocted by the EU or Ireland, it created a huge problem for both. Individual politicians and officials can and do say all sorts of things, but that does not mean they are or were the official or even unofficial policy of the EU or Ireland.
2. that because the Good Friday Agreement (GFA) didn’t create the open land border between Ireland and Northern Ireland, such a border wouldn’t contravene it.
Comment: The first part is true, but the second misses the point. One of the reasons the GFA was possible was because by that time, because of the SM and CU no land border existed. So whilst not created by the GFA it was an assumed pre-condition of it.
3. that in any case there were viable ‘administrative and technological solutions’ for a land border which the EU refused to countenance (a sub-theme is that, initially, the Irish government proposed and were happy with these, but the EU and subsequent Irish administrations squashed them, with a sub-sub-theme of that that Ireland changed approach when Leo Varadkar became Taoiseach; another sub-theme is that an EU paper provided a solution but the EU refused to implement it).
Comment: No such workable solutions were ever identified, despite much effort. The various proposals mentioned all foundered as they relied on technologies some of which don’t yet exist, and in a combination that had never been tried. So, at the very least, such solutions will not be available for many years. Sub-theme i) Ireland didn’t change approach when Varadkar became Taoiseach – what changed was that the Article 50 talks started and it became indisputable that the UK was pursuing hard Brexit, with all that implied for the Irish border. Sub-theme ii) The so-called EU proposal was actually a consultant’s report to the EU (the ‘Karlsson Report) which did outline many possible technologies but didn’t in itself remove the need for all border controls. One persistent misunderstanding amongst Brexiters is that ‘border controls’ means solely ‘controls at the border’.
4. that Theresa May, either from weakness or ‘remainer sympathies’, wrongly accepted the EU’s position on all these things, and for the same reasons wrongly agreed to the ‘sequencing’ of the Article 50 talks with Northern Ireland’s situation to be resolved prior to and independently of any trade agreement.
Comment: May completely embraced hard Brexit (that she didn’t is one of the more general Brexiter myths, not specific to the NIP). The realities of the need for a border and what this meant for Northern Ireland were only deniable in Brexiter myth. The Article 50 process meant that the trade deal was always going to be separate from and subsequent to the Withdrawal Agreement.
5. that as a result Johnson’s government inherited a situation in which the only outcome it could secure was the Irish Sea border ‘frontstop’ which it only agreed because of the ‘remainer parliament’, and especially the Benn Act, tying their hands by precluding a no-deal Brexit.
Comment: a) this presupposes that the threat of no-deal Brexit would have been credible and would have led to the EU abandoning its position on NI – both are highly unlikely, at best; b) the government did not complete the deal and ratify it until after the 2019 General Election, by which time it had a majority of 80; c) the NIP was part of a deal extolled by Johnson as excellent and ‘oven ready’, campaigned on in the election, and voted for by every single Tory MP, as well as by Tory and Brexit Party MEPs in the European Parliament.
6. that the NIP could be re-negotiated later and/or that re-negotiation was provided for in the NIP and/or that the NIP was only ever meant to be temporary.
Comment: in one version, this is simply about bad faith – that the UK could sign without really agreeing with what it had signed to. It’s true that there is provision in the NIP for it to be superseded – by agreement, but not simply by refusing to implement the original agreement and ‘invoking Article 16’ to suspend it. Except in the sense that a future agreement might supersede it, the NIP was never intended to be temporary. When Brexiters refer to Article 13.8 in this regard they are, at best, confused: that clause just means that the Protocol 'may' be superseded, not that it is temporary. To the extent there is any rationale for saying otherwise it may lie in people confusing May’s ‘backstop’ (which was in principle temporary) with Johnson’s ‘frontstop’ (which wasn’t).
Beliefs about the present and future
The result of all this (and many variations on the same themes), is that the Brexiters feel no commitment to the NIP. The common objection that Frost, Johnson, and the entire Tory Party signed up to the NIP therefore cuts no ice at all with them as they would answer it with the beliefs just listed. However, it is undeniable that the NIP exists as an international treaty. It is this fact which has informed the entire approach since the day it was agreed, and it is an approach which is also based upon a series of unshakeable beliefs, some of which grow out of the previous list of what they believe about the past:
a. that (unlike May) they truly believe in Brexit which means giving absolute priority to sovereignty.
Comment: On the first, see point 4 (above). On sovereignty, Brexit has evolved in an ever-harder direction so that what used to be an idea that the UK should be free to make decisions in its own interests has morphed into the idea that the UK must have nothing to do with the EU regardless of its own interests. This is a huge a complex issue but certainly what is being enacted now was not automatically entailed by the 2016 Brexit vote, not least as no one version of Brexit was proposed at that time.
b. that the EU give in to hardball tactics, and especially that the threat to break international law with the Internal Market Bill in 2020 was what forced the EU to agree the Trade and Cooperation Agreement (TCA).
Comment: There’s no evidence for this, and the TCA did not give the UK any significant concessions: it is a limited deal the limitations of which were wholly defined by the UK’s red lines. In fact, the threat almost led to there being no TCA, and even after it was abandoned left a legacy of serious damage to the EU’s trust in the UK.
c. that, in any case, international law is subservient to Parliamentary sovereignty, so the UK can unilaterally disapply some or all of the Protocol.
Comment: According to Professor Mark Elliot of Cambridge University and most other leading legal experts this is simply untrue.
d. that any concession made by the EU is a sign of weakness, and should be followed not by a reciprocal concession but by a fresh demand.
Comment: This effectively takes the UK into international pariah territory, and is self-defeating in that it destroys the trust upon which international relations, outside of wartime, require to operate.
e. that the EU wrecked the NIP by invoking Article 16 over vaccines exports
Comment: The EU didn’t invoke Article 16. It threatened to do so and within hours withdrew the threat. It was undoubtedly extremely foolish, but even if implemented it would only have meant not dispatching vaccines from a factory in Belgium to Northern Ireland rather than, as some Brexiters claim, installing checks on the Irish land border. In any case, the UK had threatened to use Article 16 even before that. The claim is a total red herring and made entirely opportunistically.
f. that the EU wrecked the NIP by applying a disproportionate number of checks to the Irish Sea border, often quoted as 20% of all EU border checks, relative to the size of the NI economy.
Comment: The figure cited is unsubstantiated and dubious. If it, or anything like it, is true, is because of the unique situation of there being multiple dense supply chains between GB and NI, and the fact that unlike most EU border goods flows it is in mixed loads. In any case a) the extent of what was entailed was fully spelt out in the Annexe to the NIP, so the UK agreed to it, b) the latest EU proposals would substantially reduce this, c) the government and Brexiters oscillate between claiming the problems of the NIP are those of implementation (as in this case) and those of principle.
g. the wider variant of the previous issue, namely that the EU has applied the NIP in an unexpectedly rigid way.
Comment: This is demonstrably untrue because, at the time of the NIP, UK civil servants produced a detailed impact assessment that showed exactly what it would mean. The reality is that, within days of the NIP being signed, and long before its provisions started to be implemented, senior UK government ministers were disowning its core principle and Johnson was looking for ways to circumvent it (£).
h. that, in the end, if the EU wants to erect border it is ‘up to them’, knowing that this would mean an invidious choice between an Irish land border or a border between Ireland and the rest of the single market – or just having no border at all with the associated risks of smuggled or sub-standard goods entering the single market.
Comment: In part this is a reprise of the basic failure to understand that hard Brexit entails borders. In any case, it is a cynical and immoral ploy which would eviscerate the UK’s relations with the EU and, perhaps, the US.
i. that the NIP is offensive to the unionist community in NI
Comment: This is undoubtedly true, but it was the deliberate decision of the government to ignore (and reject) unionist objections, and also, subsequently, to stoke unionist discontent. The fundamental problem is Brexit, which the unionist parties supported, not the Protocol
j. that the NIP does not have cross-community consent
Comment: Again, that was known from the beginning, but ignored because the Protocol in an international treaty and as such a Westminster competence. In any case, since the latest Assembly elections, pro-Protocol parties are in the majority, and opinion polls show majority support for the NIP in NI. The implication of this argument is that the NIP violates the GFA in constituting a constitutional change for NI but, apart from the points on this issue below, if we are to take this argument seriously then Brexit itself, which the majority in NI voted against, doesn’t have such support.
k. that the NIP violates the GFA
Comment: This has become the argument of choice from the UK government and Brexiters, especially as the tactic has shifted from Article 16 invocation to that of creating UK legislation to unilaterally disapply the NIP. It has arisen partly to legitimate such legislation in general, but especially in order to circumvent US criticism of the UK for undermining the GFA. However, Boris Johnson stated unequivocally when agreeing the NIP that it was “fully compatible” with the GFA and, at the time, Lord (David) Trimble, the leading Ulster unionist who created the GFA, supported the NIP and said it was “within the spirit” of the GFA. Moreover, successive court rulings on cases brought by Brexiters have rejected the idea that the NIP incompatible with the GFA, culminating in the Supreme Court judgement of February 2023.
Tony Connelly, Brexit & Ireland. London: Penguin, 2017
Katy Hayward, What do we know and what should we do about the Irish Border? London: SAGE, 2021
Last updated: 17 February 2023