The controversial Northern Ireland Protocol Bill comfortably passed its second reading in the House of Commons on Monday but nevertheless seems doomed to fail at some stage. The government is continuing to dig an ever deeper hole of its own making on the Northern Ireland border and seems oblivious to the dangers ahead.
The bill, designed to override much of the Northern Ireland protocol Johnson agreed in 2019 as part of the withdrawal negotiations, went through with a majority of 74 (295 to 221) although 72 Conservatives MPs did not register a vote, many abstaining.
In order to satisfy the Democratic Unionist Party (DUP) who are refusing to join the devolved Stormont administration unless the Northern Ireland Protocol Bill is enacted into law, the government wants to push the legislation through because the EU have ruled out any changes to the protocol and insist negotiations within the original terms can resolve border frictions.
The DUP recently released a paper setting out the reasons they believe the hated protocol threatens Northern Ireland’s place in the United Kingdom and must be scrapped.
The commons debate followed entirely predictable lines. When Caroline Lucas (Green Party, Brighton Pavilion) pointed out that the bill drove a “horse and coaches” through international law, the usual suspects simply insisted that it did not and that there was no alternative because the EU were refusing to change the text of the protocol.
A hopeless case
Former Conservative leader Theresa May spoke against the measure saying it wasn’t legal, wouldn’t achieve its aims anyway and “will diminish the standing of the United Kingdom in the eyes of the world”. She then abstained rather than vote against the bill.
Her opinion was shared by many highly respected MPs who made exactly the same points. It seems a completely hopeless case but one which the government may soon come to regret for it could open the way to a full-blown constitutional crisis and put Brexit itself at risk.
By far the best contribution to the debate came from Simon Hoare, chair of the Northern Ireland Affairs select committee and a man who understands the province’s vexed issues more than most. Hoare, the quick-witted MP for South Devon, rose to speak at 5.32pm just as the foreign secretary who had moved the bill an hour before, left the chamber. It gave him an opportunity to quip:
“The shadow foreign secretary is right: at the heart of this is trust or the absence of it — or, as she leaves the chamber, the absence of Truss.”
It was a pity that Liz Truss did not have the courtesy to hear what the chair of the Northern Ireland affairs committee had to say. He was not impressed. “This is not a well thought-out bill, it is not a good bill and it is not a constitutional bill”, he said, adding that it represented a “failure of statecraft and puts at risk the reputation of the United Kingdom. The arguments in support of it are flimsy at best and irrational at worst”.
Flimsy and irrational seemed to sum up everything about this government.
The legality of it
Having been slammed in September 2020 for admitting the UK Internal Market Bill broke international law in “a very specific and limited way”, the government was determined not to repeat the error. Truss now claims the government has legal advice that the bill is lawful because of the doctrine of ‘necessity‘ as codified in Article 25 of the International Law Commission (ILC)’s Draft Articles on State Responsibility.
Hoare disagreed and said his committee had received a legal opinion from the Office of the Speaker’s Counsel which “raises enormous concerns about this bill’s legality”.
That legal opinion is hardly unique. The vast majority of lawyers think the grounds for invoking necessity as a defence against breaching international law are highly contentious and doomed to fail. The customary prerequisites to do so are:
- The state’s act is to safeguard an essential interest against a peril;
- The peril shall be grave and imminent;
- The course of action followed shall be the only way available; and
- No other essential interest shall be seriously impaired as a result of the breach.
In addition, the defence of necessity may not be invoked where the state has (substantially) contributed to the situation of necessity. It would appear therefore that the bill is guaranteed to fail on every count.
As if to reinforce that future failure, Sir Robert Buckland QC, MP for South Swindon who was lord chancellor and secretary of state for justice from July 2019 to September 2021, accidentally demolished the government’s case by telling the House:
“A lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence.”
Mmmm. In fact this is precisely what it does say. His intervention looks rather like exhibit A in the case for the prosecution.
Regardless of the legality, supporters of the bill (Iain Duncan Smith, Edward Leigh, Jeffrey Donaldson, etc) argued strongly that it was a necessary step to restore the power-sharing executive and Truss herself said:
“Without dealing with those very real issues [governance, subsidies, manufactured goods and VAT ] for the people of Northern Ireland we are not going to see the balance of the Belfast Good Friday agreement restored, and we are not going to see the cross-community support we need to get the political institutions back up and running.”
Dr Philippa Whitford (SNP, Central Ayrshire) however doubted if the bill had the consent of both communities, and in doing so put her finger on what I fear is the government’s biggest problem. The government is stacking up a lot of weighty arguments which could very easily be used against it. It is literally claiming the lack of a power-sharing executive is of such paramount importance that it is grounds for breaking international law.
What if Mary Lou McDonald and Michelle O’Neill, president of Sinn Féin and first minister designate of Northern Ireland respectively, announced that they would follow the lead of the DUP and refuse to join the power-sharing Stormont executive, but for the opposite reason? That is if the bill becomes British law.
If as the DUP fear, the protocol is a threat to the union, it would seem to me that Sinn Féin has more reason to see it retained, furthering their long-term aim of a united Ireland. They also have a majority of Members of the Legislative Assembly on their side and recent polling suggests 74% of NI voters prefer to see a settlement negotiated with the EU rather than the UK government take unilateral action.
In that case, how would the UK government react?
It could hardly criticise Sinn Féin for adopting the same action as the DUP and faced with the same (as they see it) crucial problem of getting the ‘political institutions up and running’, something they claim is an imminent and grave peril, what then would be the solution?
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What is Sinn Féin’s current position?
The BBC recently set out Sinn Féin’s position on the protocol saying they campaigned to remain in the EU and the nationalist party is now the largest in the assembly following the 5 May elections, and wants to see the immediate restoration of power-sharing.
Sinn Féin also believe the protocol is necessary following Brexit and gives Northern Ireland privileged access to both the EU and British markets, protects the Good Friday agreement and prevents a hard border on the island of Ireland. And while the party agrees there are practical issues related to the operation of the protocol, they say any solutions should be made through talks between the UK government and the EU. They do not support unilateral action by the UK government.
The question is what their stance will be if the Northern Ireland protocol looks like becoming emasculated or scrapped under UK law?
In old mechanical balances, you measure out a quantity by loading a scoop on one side against a calibrated and known weight on the other. When you reach the required amount, the balance will tip rapidly from one state of rest to the other. It does this by using an accelerating beam where the fulcrum point is located below the beam’s centre of gravity.
It is virtually impossible to reach a state of balance because the beam cannot find an equilibrium as it shifts rapidly from one position to the other. Inertia takes over.
I liken the Good Friday agreement to this principle. It was a minor miracle that the two communities ever came together after 30 years of sectarian violence to achieve a balance that satisfied both sides of the divide to the extent that a power-sharing executive could begin to operate. That fragile balance was found largely because both Ireland and the UK were EU member states. Finding it again outside the EU will not be easy.
Brexit and the Northern Ireland protocol have upset that balance and it resulted in one community – the unionists – feeling aggrieved because they believe the protocol favoured the nationalists.
But to remove the protocol altogether may well now be seen by nationalists as favouring unionists. If neither party will compromise, it is not impossible that the UK government will find one potential outcome is to put Brexit itself under threat.
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