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.
Showing posts with label NIPB. Show all posts
Showing posts with label NIPB. Show all posts
Friday, 1 July 2022
Friday, 17 June 2022
Brexit is shaming Britain
Since the very early days of this blog in 2016, I have been writing about the self-pitying victimhood and perpetual grievance that permeates the political psychology of Brexit. A recent example was last weekend’s doltish claim from David Davis that what we have is “remainers’ Brexit”. Admittedly, almost everything Davis has ever said about Brexit has proved wrong, but this latest comment is undoubtedly widely shared by all those, including David Frost who negotiated it, who now insist that Johnson’s ‘triumphant’ Brexit deal of 2019 was actually an abject defeat forced on them by ‘Theresa the remainer’, ‘remainer civil servants’, the ‘remainer parliament’ and its ‘Surrender Act’, and, of course, the EU’s ‘brutal’ treatment of poor little Britain.
This recurring sense of victimhood is directly linked to the main Brexit event of the week, the publication of the long anticipated and several times postponed Northern Ireland Protocol Bill (NIPB). For as Fintan O’Toole puts it, “self-pity has always been the dominant emotion in Brexit, and it has shaped the story the Brexiters are now telling themselves about the protocol”. In that story, the Northern Ireland Protocol (NIP) is treated not as an agreement freely made, and trumpeted as a triumph, but a grievance to be redressed by any means, fair or foul. For what’s perhaps less well-recognized is that the the flip-side of Brexiter victimhood is that it justifies them breaking all the rules to ‘get Brexit done’: we’ve been ‘cheated’ of ‘true Brexit’, so we can cheat in pursuit of it.
Ever since agreeing the NIP, Boris Johnson has continually stoked grievance about it amongst both the ERG Brexit Ultras and the DUP, not least by lying to them about its provisions and its impermanence. At the same time, in typically Johnsonian style, he has wavered between that and taking a slightly more pragmatic approach. Thus, for all the threats throughout 2021, he never ‘triggered Article 16’, and his unwillingness to do so and his apparent softening on demands for changes to the Protocol are widely believed to have led to the resignation of Frost who, ever since, has been a high-profile agitator for a hardline approach.
With the NIPB, the government’s approach has now become considerably harder in that, although retaining the right to use Article 16, it seems that it has abandoned that idea as too partial. Instead, the NIPB would unilaterally scrap the bulk of the NIP’s agreed provisions and replace them with the UK’s preferred, much more limited, arrangements, despite knowing that most of these are unacceptable to the EU. Yet, already, Johnson is reported (£) to be wavering about that, and wanting to ‘de-escalate’ the row at the very moment he escalated it.
In consequence, there are at least two strands to understanding the NIPB. The first is solely bound up with the internal politics of the Tory Party and the second to do with the wider Brexiter politics of the UK-EU relationship.
Tory factionalism
Regarding the first strand, as has been the case in various ways for 30 years, and despite the considerable clear out of ‘remainers’ and other moderates since the last election, the Tory Party is riven by different factional views of European policy. That factionalism is made more complicated by the post-partygate weakness of Johnson’s leadership and by the consequent jostling for position amongst his potential successors. As discussed in last week’s post, there are particular divisions between the ERG, the One Nation group and what might be called the ‘Mayite’ faction, which framed arguments over the text of the NIPB. With its publication, it became clear that the ERG view had won out (£) because, if enacted, it almost completely guts the NIP, the only rider being that its provisions would not immediately come into effect but would be available for subsequent implementation by ministers.
This would also seem to be a victory for Liz Truss, who has hitched her leadership ambitions to proselytising for the ERG. That’s understandable enough, since it’s highly unlikely that anyone will succeed Johnson who doesn’t have their support. But she might want to reflect on the fate of Theresa May, who also sought to lose the taint of having been a remainer through the warmth of their embrace. It turned out to be a bear hug.
So if Truss does succeed, she had better be ready for the inevitability of their next demand which is likely to be derogation from the ECHR. That has long been in the Ultras’ sights and, as shown this week, it’s a demand they are hair-triggered to make. It won’t be met for now, if only because it would contravene the Good Friday Agreement, protection of which is the government’s supposed rationale and diplomatic cover for the NIPB, but the one thing that can be said with certainty about the Ultras is that they never give up trying.
The legality of the NIPB
That’s a matter for the future. In the meantime, the ERG have got their way, and the only sop to the ‘moderates’ is the summary of the government legal position explaining why the NIPB supposedly does not break international law. Simply providing an explanation demonstrates that the government has learned the lesson of having publicly admitted that the 2020 Internal Market Bill (IMB) did break international law. The fallout from that episode still matters, since it showed that the government is willing to break international law, and that it does actually understand that unilaterally breaking the NIP constitutes such a breach. For both domestic and international reasons it wants to avoid that charge.
Domestically, much will depend on whether enough Tory MPs, not to mention Peers, accept the validity of the government’s new legal position. This departs from the previous, absurd, attempt – which did the rounds again this week, attracting much Brexiter excitement - to argue that the IMB was legal because domestic law trumped international law, and even from the recently trailed and much mocked suggestion that the NIPB could be justified on the hitherto unknown legal concept of ‘primordial significance’ apparently advanced by Attorney General Suella Braverman. Even so, it is clear that she views the new legal position through the distinctly non-legal lens of leave versus remain.
This new legal position is based centrally on “the doctrine of necessity”. Numerous heavyweight legal experts have already explained what that means and cast substantial doubt on its applicability in this instance, with David Allen Green saying the position is “weak to the point of non-existent”. Meanwhile, the former Head of the Government Legal Service, Sir Jonathan Jones, who resigned over the illegality of the IMB, has called it “hopeless”.
One of the main problems these legal experts identify in the government’s legal position is that, indeed, Article 16 has not been invoked. How, then, can over-riding the NIP meet the “grave and imminent peril” criteria required by the doctrine of necessity when the provisions within it to deal with any difficulties have not been made use of? And if the peril is “imminent” why forego the immediacy offered by Article 16 in favour of a legislative process that may take a year?
Equivocation and inconsistency
I am not a lawyer, but an important political aspect of this is the ongoing equivocation about whether the UK’s objection is to the operation of the Protocol or to its very existence. One reason why the government seems to have decided not to use Article 16 is precisely because doing so would be to stay ‘stuck’ within the framework of the NIP rather than breaking free of it altogether, or at least drastically re-writing it. The desire to entirely ditch the NIP, rather than just operate it differently, is clearly the position of at least some of the ERG, the DUP, and some other unionists, whilst the text of the NIPB certainly entails it being drastically re-written. Others, including Johnson himself when he refers to the NIPB as simply dealing with some bureaucratic trivialities, imply the opposite.
That it is the operation not the principle at stake is also implied in the paper on the government’s legal position, which states that “the peril was not inherent in the Protocol’s provision”. Yet, since the ‘peril’ is, apparently, the strain being put on the power-sharing institutions then, certainly from a unionist point of view, it was inherent in the Protocol’s core provision of the Irish Sea border. The legal position paper also refers to the way the NIP has been “applied and administered”, again as if it is implementation that is at stake, even though it is not claimed that this implementation violates the written terms of the NIP. Yet that seems inconsistent with a requirement of the doctrine of necessity that the UK (in this case) has not “substantially contributed to the situation of necessity”, since the government freely agreed to the written terms of the NIP. Of course this is where the Brexiter myth that the NIP wasn’t freely agreed (because of the Benn Act etc. etc.) hits the brick wall of reality.
This lack of clarity has been present since the outset, with Brexiters’ and the government’s arguments oscillating between objection to specific practical effects of the NIP, and objection to and denial of the very existence of an Irish Sea border. It is also present as regards the Good Friday Belfast Agreement (GFA), which is central to the government’s legal argument of necessity. Does the NIP violate the GFA as a matter of principle, and if so why did the UK government sign it and say that it did not? Or is it averred that it only does so in terms of its operations, in which case why will it not suffice to reform these in the ways already offered by the EU? This matters, not simply in terms of the viability of the government’s legal position but also in terms of how the politics of the NIPB are likely to play out, something I will return to below.
Beyond issues of international law, the NIPB has constitutional implications. The Brexit process has already resulted in a growth in the power of the Executive, especially in the use of ‘Henry VIII powers’. So MPs and Peers might also be alarmed by what the Hansard Society describes as the “quite breathtaking” powers the legislation would give to Ministers, with virtually no Parliamentary scrutiny. All this will play out in the days, weeks and probably many months to come. For now, at least, it seems as if most Tory MPs are ready to go along with the NIPB, though I doubt that will hold.
However, unsurprisingly, it is already clear that the European Parliament, the European Commission, and many member states including Ireland, regard it as both illegal and a grotesque breach of trust irrespective of its legality. Whatever now happens, the memory of this moment will leave a long and sour after-taste. It will also have implications for how the UK is viewed globally, and will certainly make it much harder for it to take the moral high ground in all sorts of international disputes. That makes even the publication of the NIPB an especially irresponsible act given current global issues, something else which will weigh with some Tory MPs and Peers. As Anton Spisak of the Tony Blair Institute pithily put it, “wait until Moscow or Beijing invokes ‘the doctrine of necessity’ to override its international obligations”.
The politics and diplomacy of the NIPB
That brings us to the second strand in understanding the NIPB. Its appearance is not simply about the internal dynamics and current disarray of the Tory Party, but also about the myths that Brexiters, and Johnson and Frost especially, have developed about what happened in the Brexit negotiations with the EU. As mentioned above, these include the idea that the NIP was forced on the government because parliament denied it the ‘nuclear option’ of no-deal Brexit. Added to that is the claim that it was the threat of the illegal clauses in the IMB that pressured the EU into reaching the Trade and Cooperation Agreement.
Given this ‘analysis’, it is perfectly possible that the NIPB is not intended to be used, perhaps not even to be passed, but that its threat is simply a tactic to extract far greater concessions from the EU than might otherwise be the case. Indeed, the repeated comments from Truss and others that the government would prefer a negotiated solution to using the NIPB may well imply that this is the aim. But if it is such a tactic, it is fraught with difficulties, even leaving aside the damage that it has already done to the UK's reputation.
First, precisely because it is so unreasonable from an EU perspective it is likely to be counter-productive in securing such concessions. In the meantime it has already attracted EU retaliations, with new infringement proceedings for non-compliance with the NIP plus the revival of those relating to the UK’s unilateral extension of grace period last year – for it shouldn’t be forgotten that the NIPB démarche is only the latest, albeit the most serious, of the government’s duplicities over the Protocol. Despite much media comment, the EU’s response will fall short of a trade war for now, though it’s true that the publication of the NIPB is a step down the track towards that. Generally, the EU is likely to ‘play it long’, partly because the NIPB will take a long time to pass and partly because Johnson’s fragility means he may not survive. That doesn’t make it economically cost-free, however, because the possibility of an eventual trade war creates an uncertainty that is a disincentive to investment.
The second difficulty, if the NIPB is ‘just’ a negotiating tactic, is that even if it were to extract the maximum conceivable concessions that wouldn’t satisfy the ERG or those unionists within and outside the DUP who want the NIP not just gutted but totally scrapped. This relates back to the ambiguity of whether the government regards the NIP as unacceptable in principle, or only in the manner of its operation. That ambiguity is enough for now to satisfy the ERG and, possibly, to keep semi-sensible Tory MPs on board, but it can’t be sustained forever and is already under strain, as Johnson’s ‘de-escalation’ comments show.
Northern Ireland and the NIPB
This links to the third problem, namely the dimension of Northern Ireland politics specifically. The claimed proximate cause of the NIPB is the DUP’s refusal to participate in the power-sharing institutions, thus Truss suggests that the legislation will “support political stability in Northern Ireland”. However, despite reported government pressure to do so (£), it’s unclear if the DUP, whose MP Ian Paisley denies there has been any such pressure anyway, will change position on power-sharing until the legislation is passed and perhaps not even until it is applied.
This in turn reflects their profound distrust in Johnson because of his previous duplicity, and their awareness of the ambiguity just alluded to. In consequence, if the NIPB is just a tactic to bluff the EU into greater concessions but without necessarily scrapping the entire Protocol, that may not satisfy the DUP and certainly not groups such as Traditional Unionist Voice (TUV). Indeed the TUV leader has already made it clear that even the provisions of the NIPB do not go far enough to satisfy them.
But, in any case, for all that the DUP may loathe the NIP, the recent Assembly elections produced a majority for parties which do support it and have already expressed their opposition to the NIPB. Northern Ireland business groups want any changes to be negotiated with the EU, rather than unilaterally declared. As for public opinion in Northern Ireland, Truss claims that the majority want the NIP to change, but that is based on including the 36% who in an opinion poll of November 2021 said it would be “acceptable with some adjustments”. That doesn’t endorse the much more extensive proposals of the NIPB, for which the same opinion poll implies at best 41% support. More recent polling, from Queen’s University Belfast in February 2022, shows that 53% did not think the triggering of Article 16 would be justified and 39% thought it would be, and it’s reasonable to think that support for the much ‘harder’ NIPB approach would be less than, and certainly no greater than, that.
So anything that does satisfy the DUP, let alone the TUV, is likely to be anathema to the majority. Of course, ultimately, this reflects precisely the warnings before the referendum that, however Brexit was done, it would destabilise the fragile politics of Northern Ireland. That is now undeniable, but the NIPB certainly doesn’t solve things. This in turn means that the US stance is likely to be a significant factor. Already, several influential American political groupings have made criticisms of the Bill ranging from the robust to the downright damning. However, the official reaction from the Biden administration to the publication of the bill has so far been muted and reports suggest it will continue to be low-key, though much will depend on how the NIPB process unfolds.
A new and shaming low
The publication of the NIPB is a pivotal but not a decisive moment. It certainly marks a new phase in the Brexit process – yet again making a mockery of Johnson’s boast and promise about ‘getting Brexit done’ – but it is a phase which, unless something very unexpected happens, will last for a long time, conceivably longer than Johnson himself.
It also marks a new low, beyond all the many that Brexit has occasioned. It’s easy to become caught up by all the political machinations and legal intricacies which surround this latest event. But we shouldn’t let that blind us to the sheer rottenness, dishonesty and irresponsibility of it all. The idea of a country signing a major international agreement in what was plainly bad faith and threatening to break it on threadbare grounds is contemptible. So too are all the lies told to and by MPs along the way. So too is the reckless disdain for the troubled politics of Northern Ireland and the daily lives of its people.
It is shaming, and the worst of it is that those responsible feel no shame. It is left to others of us to feel ashamed at what Brexit has done to our country and to how it is now seen by the rest of the world. Ashamed of Johnson’s incurable moral delinquency, enabled by a cabinet of sycophants, ghouls and nonentities. Ashamed, too, of a country where ghastly old waxworks like Bill Cash and his ‘Star Chamber’ get to pass judgment on whether what has been proposed ‘goes far enough’ to satisfy their perverse fantasies, and where circus sideshow freaks like Liz Truss dance to their debased tune.
And it is not even the most shameful thing the government has done this week.
This recurring sense of victimhood is directly linked to the main Brexit event of the week, the publication of the long anticipated and several times postponed Northern Ireland Protocol Bill (NIPB). For as Fintan O’Toole puts it, “self-pity has always been the dominant emotion in Brexit, and it has shaped the story the Brexiters are now telling themselves about the protocol”. In that story, the Northern Ireland Protocol (NIP) is treated not as an agreement freely made, and trumpeted as a triumph, but a grievance to be redressed by any means, fair or foul. For what’s perhaps less well-recognized is that the the flip-side of Brexiter victimhood is that it justifies them breaking all the rules to ‘get Brexit done’: we’ve been ‘cheated’ of ‘true Brexit’, so we can cheat in pursuit of it.
Ever since agreeing the NIP, Boris Johnson has continually stoked grievance about it amongst both the ERG Brexit Ultras and the DUP, not least by lying to them about its provisions and its impermanence. At the same time, in typically Johnsonian style, he has wavered between that and taking a slightly more pragmatic approach. Thus, for all the threats throughout 2021, he never ‘triggered Article 16’, and his unwillingness to do so and his apparent softening on demands for changes to the Protocol are widely believed to have led to the resignation of Frost who, ever since, has been a high-profile agitator for a hardline approach.
With the NIPB, the government’s approach has now become considerably harder in that, although retaining the right to use Article 16, it seems that it has abandoned that idea as too partial. Instead, the NIPB would unilaterally scrap the bulk of the NIP’s agreed provisions and replace them with the UK’s preferred, much more limited, arrangements, despite knowing that most of these are unacceptable to the EU. Yet, already, Johnson is reported (£) to be wavering about that, and wanting to ‘de-escalate’ the row at the very moment he escalated it.
In consequence, there are at least two strands to understanding the NIPB. The first is solely bound up with the internal politics of the Tory Party and the second to do with the wider Brexiter politics of the UK-EU relationship.
Tory factionalism
Regarding the first strand, as has been the case in various ways for 30 years, and despite the considerable clear out of ‘remainers’ and other moderates since the last election, the Tory Party is riven by different factional views of European policy. That factionalism is made more complicated by the post-partygate weakness of Johnson’s leadership and by the consequent jostling for position amongst his potential successors. As discussed in last week’s post, there are particular divisions between the ERG, the One Nation group and what might be called the ‘Mayite’ faction, which framed arguments over the text of the NIPB. With its publication, it became clear that the ERG view had won out (£) because, if enacted, it almost completely guts the NIP, the only rider being that its provisions would not immediately come into effect but would be available for subsequent implementation by ministers.
This would also seem to be a victory for Liz Truss, who has hitched her leadership ambitions to proselytising for the ERG. That’s understandable enough, since it’s highly unlikely that anyone will succeed Johnson who doesn’t have their support. But she might want to reflect on the fate of Theresa May, who also sought to lose the taint of having been a remainer through the warmth of their embrace. It turned out to be a bear hug.
So if Truss does succeed, she had better be ready for the inevitability of their next demand which is likely to be derogation from the ECHR. That has long been in the Ultras’ sights and, as shown this week, it’s a demand they are hair-triggered to make. It won’t be met for now, if only because it would contravene the Good Friday Agreement, protection of which is the government’s supposed rationale and diplomatic cover for the NIPB, but the one thing that can be said with certainty about the Ultras is that they never give up trying.
The legality of the NIPB
That’s a matter for the future. In the meantime, the ERG have got their way, and the only sop to the ‘moderates’ is the summary of the government legal position explaining why the NIPB supposedly does not break international law. Simply providing an explanation demonstrates that the government has learned the lesson of having publicly admitted that the 2020 Internal Market Bill (IMB) did break international law. The fallout from that episode still matters, since it showed that the government is willing to break international law, and that it does actually understand that unilaterally breaking the NIP constitutes such a breach. For both domestic and international reasons it wants to avoid that charge.
Domestically, much will depend on whether enough Tory MPs, not to mention Peers, accept the validity of the government’s new legal position. This departs from the previous, absurd, attempt – which did the rounds again this week, attracting much Brexiter excitement - to argue that the IMB was legal because domestic law trumped international law, and even from the recently trailed and much mocked suggestion that the NIPB could be justified on the hitherto unknown legal concept of ‘primordial significance’ apparently advanced by Attorney General Suella Braverman. Even so, it is clear that she views the new legal position through the distinctly non-legal lens of leave versus remain.
This new legal position is based centrally on “the doctrine of necessity”. Numerous heavyweight legal experts have already explained what that means and cast substantial doubt on its applicability in this instance, with David Allen Green saying the position is “weak to the point of non-existent”. Meanwhile, the former Head of the Government Legal Service, Sir Jonathan Jones, who resigned over the illegality of the IMB, has called it “hopeless”.
One of the main problems these legal experts identify in the government’s legal position is that, indeed, Article 16 has not been invoked. How, then, can over-riding the NIP meet the “grave and imminent peril” criteria required by the doctrine of necessity when the provisions within it to deal with any difficulties have not been made use of? And if the peril is “imminent” why forego the immediacy offered by Article 16 in favour of a legislative process that may take a year?
Equivocation and inconsistency
I am not a lawyer, but an important political aspect of this is the ongoing equivocation about whether the UK’s objection is to the operation of the Protocol or to its very existence. One reason why the government seems to have decided not to use Article 16 is precisely because doing so would be to stay ‘stuck’ within the framework of the NIP rather than breaking free of it altogether, or at least drastically re-writing it. The desire to entirely ditch the NIP, rather than just operate it differently, is clearly the position of at least some of the ERG, the DUP, and some other unionists, whilst the text of the NIPB certainly entails it being drastically re-written. Others, including Johnson himself when he refers to the NIPB as simply dealing with some bureaucratic trivialities, imply the opposite.
That it is the operation not the principle at stake is also implied in the paper on the government’s legal position, which states that “the peril was not inherent in the Protocol’s provision”. Yet, since the ‘peril’ is, apparently, the strain being put on the power-sharing institutions then, certainly from a unionist point of view, it was inherent in the Protocol’s core provision of the Irish Sea border. The legal position paper also refers to the way the NIP has been “applied and administered”, again as if it is implementation that is at stake, even though it is not claimed that this implementation violates the written terms of the NIP. Yet that seems inconsistent with a requirement of the doctrine of necessity that the UK (in this case) has not “substantially contributed to the situation of necessity”, since the government freely agreed to the written terms of the NIP. Of course this is where the Brexiter myth that the NIP wasn’t freely agreed (because of the Benn Act etc. etc.) hits the brick wall of reality.
This lack of clarity has been present since the outset, with Brexiters’ and the government’s arguments oscillating between objection to specific practical effects of the NIP, and objection to and denial of the very existence of an Irish Sea border. It is also present as regards the Good Friday Belfast Agreement (GFA), which is central to the government’s legal argument of necessity. Does the NIP violate the GFA as a matter of principle, and if so why did the UK government sign it and say that it did not? Or is it averred that it only does so in terms of its operations, in which case why will it not suffice to reform these in the ways already offered by the EU? This matters, not simply in terms of the viability of the government’s legal position but also in terms of how the politics of the NIPB are likely to play out, something I will return to below.
Beyond issues of international law, the NIPB has constitutional implications. The Brexit process has already resulted in a growth in the power of the Executive, especially in the use of ‘Henry VIII powers’. So MPs and Peers might also be alarmed by what the Hansard Society describes as the “quite breathtaking” powers the legislation would give to Ministers, with virtually no Parliamentary scrutiny. All this will play out in the days, weeks and probably many months to come. For now, at least, it seems as if most Tory MPs are ready to go along with the NIPB, though I doubt that will hold.
However, unsurprisingly, it is already clear that the European Parliament, the European Commission, and many member states including Ireland, regard it as both illegal and a grotesque breach of trust irrespective of its legality. Whatever now happens, the memory of this moment will leave a long and sour after-taste. It will also have implications for how the UK is viewed globally, and will certainly make it much harder for it to take the moral high ground in all sorts of international disputes. That makes even the publication of the NIPB an especially irresponsible act given current global issues, something else which will weigh with some Tory MPs and Peers. As Anton Spisak of the Tony Blair Institute pithily put it, “wait until Moscow or Beijing invokes ‘the doctrine of necessity’ to override its international obligations”.
The politics and diplomacy of the NIPB
That brings us to the second strand in understanding the NIPB. Its appearance is not simply about the internal dynamics and current disarray of the Tory Party, but also about the myths that Brexiters, and Johnson and Frost especially, have developed about what happened in the Brexit negotiations with the EU. As mentioned above, these include the idea that the NIP was forced on the government because parliament denied it the ‘nuclear option’ of no-deal Brexit. Added to that is the claim that it was the threat of the illegal clauses in the IMB that pressured the EU into reaching the Trade and Cooperation Agreement.
Given this ‘analysis’, it is perfectly possible that the NIPB is not intended to be used, perhaps not even to be passed, but that its threat is simply a tactic to extract far greater concessions from the EU than might otherwise be the case. Indeed, the repeated comments from Truss and others that the government would prefer a negotiated solution to using the NIPB may well imply that this is the aim. But if it is such a tactic, it is fraught with difficulties, even leaving aside the damage that it has already done to the UK's reputation.
First, precisely because it is so unreasonable from an EU perspective it is likely to be counter-productive in securing such concessions. In the meantime it has already attracted EU retaliations, with new infringement proceedings for non-compliance with the NIP plus the revival of those relating to the UK’s unilateral extension of grace period last year – for it shouldn’t be forgotten that the NIPB démarche is only the latest, albeit the most serious, of the government’s duplicities over the Protocol. Despite much media comment, the EU’s response will fall short of a trade war for now, though it’s true that the publication of the NIPB is a step down the track towards that. Generally, the EU is likely to ‘play it long’, partly because the NIPB will take a long time to pass and partly because Johnson’s fragility means he may not survive. That doesn’t make it economically cost-free, however, because the possibility of an eventual trade war creates an uncertainty that is a disincentive to investment.
The second difficulty, if the NIPB is ‘just’ a negotiating tactic, is that even if it were to extract the maximum conceivable concessions that wouldn’t satisfy the ERG or those unionists within and outside the DUP who want the NIP not just gutted but totally scrapped. This relates back to the ambiguity of whether the government regards the NIP as unacceptable in principle, or only in the manner of its operation. That ambiguity is enough for now to satisfy the ERG and, possibly, to keep semi-sensible Tory MPs on board, but it can’t be sustained forever and is already under strain, as Johnson’s ‘de-escalation’ comments show.
Northern Ireland and the NIPB
This links to the third problem, namely the dimension of Northern Ireland politics specifically. The claimed proximate cause of the NIPB is the DUP’s refusal to participate in the power-sharing institutions, thus Truss suggests that the legislation will “support political stability in Northern Ireland”. However, despite reported government pressure to do so (£), it’s unclear if the DUP, whose MP Ian Paisley denies there has been any such pressure anyway, will change position on power-sharing until the legislation is passed and perhaps not even until it is applied.
This in turn reflects their profound distrust in Johnson because of his previous duplicity, and their awareness of the ambiguity just alluded to. In consequence, if the NIPB is just a tactic to bluff the EU into greater concessions but without necessarily scrapping the entire Protocol, that may not satisfy the DUP and certainly not groups such as Traditional Unionist Voice (TUV). Indeed the TUV leader has already made it clear that even the provisions of the NIPB do not go far enough to satisfy them.
But, in any case, for all that the DUP may loathe the NIP, the recent Assembly elections produced a majority for parties which do support it and have already expressed their opposition to the NIPB. Northern Ireland business groups want any changes to be negotiated with the EU, rather than unilaterally declared. As for public opinion in Northern Ireland, Truss claims that the majority want the NIP to change, but that is based on including the 36% who in an opinion poll of November 2021 said it would be “acceptable with some adjustments”. That doesn’t endorse the much more extensive proposals of the NIPB, for which the same opinion poll implies at best 41% support. More recent polling, from Queen’s University Belfast in February 2022, shows that 53% did not think the triggering of Article 16 would be justified and 39% thought it would be, and it’s reasonable to think that support for the much ‘harder’ NIPB approach would be less than, and certainly no greater than, that.
So anything that does satisfy the DUP, let alone the TUV, is likely to be anathema to the majority. Of course, ultimately, this reflects precisely the warnings before the referendum that, however Brexit was done, it would destabilise the fragile politics of Northern Ireland. That is now undeniable, but the NIPB certainly doesn’t solve things. This in turn means that the US stance is likely to be a significant factor. Already, several influential American political groupings have made criticisms of the Bill ranging from the robust to the downright damning. However, the official reaction from the Biden administration to the publication of the bill has so far been muted and reports suggest it will continue to be low-key, though much will depend on how the NIPB process unfolds.
A new and shaming low
The publication of the NIPB is a pivotal but not a decisive moment. It certainly marks a new phase in the Brexit process – yet again making a mockery of Johnson’s boast and promise about ‘getting Brexit done’ – but it is a phase which, unless something very unexpected happens, will last for a long time, conceivably longer than Johnson himself.
It also marks a new low, beyond all the many that Brexit has occasioned. It’s easy to become caught up by all the political machinations and legal intricacies which surround this latest event. But we shouldn’t let that blind us to the sheer rottenness, dishonesty and irresponsibility of it all. The idea of a country signing a major international agreement in what was plainly bad faith and threatening to break it on threadbare grounds is contemptible. So too are all the lies told to and by MPs along the way. So too is the reckless disdain for the troubled politics of Northern Ireland and the daily lives of its people.
It is shaming, and the worst of it is that those responsible feel no shame. It is left to others of us to feel ashamed at what Brexit has done to our country and to how it is now seen by the rest of the world. Ashamed of Johnson’s incurable moral delinquency, enabled by a cabinet of sycophants, ghouls and nonentities. Ashamed, too, of a country where ghastly old waxworks like Bill Cash and his ‘Star Chamber’ get to pass judgment on whether what has been proposed ‘goes far enough’ to satisfy their perverse fantasies, and where circus sideshow freaks like Liz Truss dance to their debased tune.
And it is not even the most shameful thing the government has done this week.
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