The EU has confirmed it will take legal action against the UK for breaching provisions of the withdrawal agreement. This marks another ratcheting up of the rapidly escalating row between London and Brussels.
At the centre of the growing storm is the Northern Ireland (NI) protocol. This was cobbled together late in 2019 under extreme time pressure, as Johnson’s self-imposed 31 October deadline loomed. It was never consulted on or accepted by unionists, but was hailed by the prime minister as a great success.
Following the end of the transition period, with supply chains stretched and local businesses struggling to cope, in early March Lord Frost unilaterally added six months to the grace period he himself had agreed was “not renewable” only three months ago. The move has angered officials in Brussels as well as member states. It comes amid rising tensions with rumblings of a return to violence growing ever louder in unionist communities.
Escalating tensions over the Irish border
The issue was raised in the House of Lords yesterday. Lord Frost said the UK will defend “vigorously” any legal action brought by Brussels and that the measures taken were “operational, technical and temporary”.
For something that was given no more prominence in 2016 than dozens of other issues, and frequently dismissed or downplayed, the Irish border is proving to be the permanent and immovable anchor about which Brexit continues to pivot, never quite able to shake itself free.
Defenders of the sea border created by the NI protocol, like former DEXEU department permanent secretary Phillip Rycroft, claim it as the least-worst option.
Good Friday Agreement and the Irish border
While the 1998 Good Friday Agreement (GFA) does not specifically rule out a land border, it talks (Page 25, Security 2 (ii)) about the “removal of security installations”. It is widely assumed that any land border would quickly need a greater security presence. Most independent observers believe the agreement rules out such a border, at least implicitly.
None of the parties to the NI peace process in 1997 ever anticipated Brexit. I believe that if they had, the GFA would have been different and it would, implicitly or explicitly, have ruled out any kind of east/west sea border. Otherwise unionists would never have agreed to it. Johnson’s chosen option and even Brexit itself, may not have been possible.
Tony Blair has talked about the “constructive ambiguity” inherent in the GFA. Part of this was the illusion there was no border between Ireland and the six Ulster counties. Citizens in the province could think of themselves as Irish or British and goods and services moved freely throughout the island.
The illusion of no Irish border
This ‘illusion’ was uniquely sustained by the rules of the single market and the customs union. These allow for the two nation states to share the same import tariffs, the same regulatory ‘eco-system’ and a mutual recognition of standards. Paradoxically, it is the same system that also created the illusion of a single state out of 28 sovereign nations, something that Brexiters never understood, long railed about and have always rejected.
By choosing to opt out of the SM and CU, Johnson has to find a different mechanism to create a similar illusion. It has to be one that persuades unionists there is no border down the Irish Sea. The NI protocol is not it. Despite NI minister Brandon Lewis claiming “there is no Irish Sea border”, every day brings fresh evidence that there is.
This is one reason why the British government is now trying desperately to wriggle out of the terms of the protocol.
Legal action over the Irish Sea border
The Democratic Unionist Party (DUP) meanwhile is also launching a legal action in the form of a judicial review. This argues that the protocol is not compatible with British law because it creates trade barriers between Northern Ireland and the rest of the UK.
One DUP member has even threatened to bring down the province’s power sharing government if the agreement is not overturned. Jonathan Buckley has warned that collapsing the Stormont administration was an option, calling the protocol an “unmitigated disaster”.
It’s hard to see why an east/west sea border will ever be any more tolerable to unionists than a land border is to nationalists. And it’s difficult to see how Johnson ever believed it might be.
Can a compromise be reached on the Irish border question?
As tensions mount in the unionist community, the question now must surely be whether sea border checks can ever be made light enough to simultaneously satisfy EU demands to see the single market’s integrity protected, while creating an illusion of frictionless trade bearable for unionists.
It may be that a particular point can be found on the dial of possible easements, which achieves that fine balance. But I wouldn’t bank on it being found. Or found very quickly. Or being permanently acceptable to both sides if it ever was.
The appointment of Lord Frost as the Cabinet Office minister in charge of relations with the EU, is not calculated to help speed matters along. He seems to favour permanent antagonism, and this may be something Johnson lives to regret.
The prime minister is in a bind of his own making. Rycroft may be right that the NI protocol is the least-bad option. But if it is not acceptable to half the population of the province – what is the solution?
Irish border: the role of the US and President Biden
The Irish foreign minister Simon Coveney was in Washington yesterday with EU Vice President Maroš Šefčovič. They were briefing the Friends of Ireland caucus on Capitol Hill, amid concern in the USA about Lord Frost’s decision to delay the implementation of a key part of the Brexit agreement.
The UK government is clearly sufficiently worried about being diplomatically outmanoeuvred that it announced plans to send a ‘senior official’ from the NI Office to “build relations with the administration of President Joe Biden”. This looks like either a calculated snub, or no senior politician wanted to go and defend the UK’s actions.
It may be a wasted trip. Biden’s sympathy is with Ireland and the EU, and Johnson has no friends in Washington.
Johnson now has to find a way to placate unionists and get the protocol accepted. But it is looking increasingly that Brexit’s fate will continue to turn on the Irish border question for a very long time.
In 2017 Theresa May gave herself three objectives on Northern Ireland, one of which was always mutually exclusive to the other two, as many experts pointed out:
- To leave the EU’s Single Market and Customs Union
- No hard land border or checks on goods on the island of Ireland
- No trade barriers either way between GB and NI (no sea border)
This simple graphic by R Daniel Keleman at Rutgers University, New Jersey, explains how any two objectives can be made to work but never all three together:
Mrs May chose to delay option 1 with her so-called backstop in order to preserve 2 and 3, which eventually cost her the Tory leadership. Johnson then opted for 1 and 2 at the expense of 3 and we are now starting to see the disastrous results coming out of the NI protocol.
Note: This article has been updated to correct errors in the original
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