Rishi Sunak is currently involved in a high-wire act to find a solution to the Northern Ireland protocol. It is a lose-lose situation for him. Fail and he will crash and burn. But if he succeeds he will get no thanks, least of all from Boris Johnson, the author of his difficulties. In the event of the PM coming up with a resolution, Johnson is likely to claim all the credit as vindication of his whole approach to Brexit.
Talks aimed at resolving the issue have been taking place for weeks and an announcement was expected as early as today, but a ‘backlash’ from the DUP and Conservative MPs has scuppered that.
It’s clear that the hardest negotiations for Sunak are not with the EU, but with his own side.
Further talks between EU Commission vice president Maroš Šefčovič, the UK foreign secretary James Cleverly, and Northern Ireland minister Chris Heaton-Harris were due to take place Monday afternoon. For anyone interested in the details, an article in Politico by Hugh Bennett, a former adviser to Johnson and Truss and a member of the UK’s Brexit negotiating team, sets out the main points of contention. While there is clearly scope to find a way to reduce border checks, it seems the whole issue around EU law and the role of the European Court of Justice (ECJ) will prove the hardest nut to crack.
Conservative MPs reject their own laws
Sunak’s predecessor but one has warned against any move to offer the EU concessions, while other Conservative MPs queue up to repudiate the withdrawal agreement that Johnson agreed to and they all supported in 2019.
John Redwood is asking why Northern Ireland needs to follow EU laws at all.
You feel like gently reminding him that it’s because of Part 2 of the European Union (Withdrawal Agreement) Act 2020 which he and most if not all Conservative MPs voted for.
James Duddridge, Tory MP for Rochford and Southend East, a former Brexit minister and close friend of Johnson, warned of over a hundred Conservative MPs rebelling if the ECJ retained any kind of role at all:
“It won’t just be the so-called ‘Spartans’, there will be a large number of Brexiters, possibly the majority of the parliamentary party, and potentially running into treble figures.”
Iain Duncan Smith writes in The Telegraph: To preserve peace in Northern Ireland, the Protocol must be replaced. He says, “So long as EU law and regulations apply to Northern Ireland, leaving the province outside the UK’s own single market and the remit of exclusively UK law, the DUP cannot go back into the Assembly”.
Quite how Northern Ireland could remain in the EU single market in those circumstances is not clear and to avoid a land border, IDS only offers a solution that has already been rejected by the EU. He claims: “Other arrangements, such as mutual enforcement, exist to safeguard the EU and UK single market.”
The ERG explicitly recognised the role of the European Court
However, the worst example is from Sir Bill Cash. In a clip posted on Twitter recently, he says that he doesn’t “think there’s any other democratic country in the world which has got an arrangement whereby part of its territorial and constitutional jurisdiction is decided by another country”.
Cash led the ERG’s legal advisory committee on the trade and cooperation agreement along with Martin Howe QC, Barnabas Reynolds, David Jones MP, Christopher Howarth, and Emily Law. This so-called ‘star chamber’ produced an ‘opinion’ on the trade and cooperation agreement dated 29 December 2020, which contains this section on the earlier Northern Ireland protocol:
“Much of this Agreement does not relate to Northern Ireland as a result of the Northern Ireland Protocol to the 2019 Withdrawal Agreement. The Protocol and other parts of the Withdrawal Agreement currently remain in place whether or not this Agreement is ratified. The Protocol provides for continuing direct jurisdiction of the European Commission within Northern Ireland and binding ECJ jurisdiction. It leads to checks being required between Great Britain and NI. The position has been somewhat ameliorated by recent agreements in the Joint Committee.” [our emphasis]
Cash explicitly recognises the “continuing direct jurisdiction of the European Commission within Northern Ireland and binding ECJ jurisdiction” – the very thing he and his ERG colleagues now complain is intolerable.
Baroness Hoey warns Biden to abandon planned visit in April
Kate Hoey the former Labour Europe minister (now Baroness Hoey), who voted for Brexit and the withdrawal agreement, is quoted in The Express saying if the new deal is within the existing protocol, the DUP won’t be able to agree to it. She has “warned that US President Joe Biden better abandon his plans to visit for the [25th] anniversary [of the GFA]” due in April.
Last Friday, Sunak met Northern Ireland political parties in Belfast before travelling to Munich for a global security conference where he discussed progress on the Northern Ireland protocol deal with EU Commission President Ursula Von der Leyen.
The PM met the parties individually. One of the early ones seemed to indicate that details were scant, so it’s not clear exactly what they were asked to agree to. After his meeting with Sunak, DUP leader Jeffrey Donaldson issued a statement that said the deal, “currently falls short of what would be acceptable and required to meet our tests as set out”.
This is perhaps not a surprise since on the same date, Šefčovič briefed EU ambassadors where he is said to have been “crystal clear” that the European Court of Justice’s role as final arbiter of the treaty would be retained. According to the Irish broadcaster RTE, Šefčovič also said the deal, “would be within the existing protocol”.
All of which sets things up for a final showdown with the EU.
The DUP will not accept EU laws
Sammy Wilson, MP for East Antrim and the DUP’s chief whip, has told Sky News that he does not expect a deal this week and in any event, his party “would not accept any agreement that would leave Northern Ireland subject to EU laws”.
It is not as if DUP leader Sir Jeffrey Donaldson is desperate, and I imagine he and his colleagues will take some convincing. Sunak needs a deal far more than they do. To fully understand the dilemma Donaldson faces, have a look at this video:
The man speaking is James Allister KC, a barrister in Northern Ireland and founder of the Traditional Unionist Voice (TUV). He has led the party since its formation in 2007 and is an assembly member for North Antrim, the party’s only representative in the assembly at Stormont.
He is talking about never allowing ‘terrorists’ into the Northern Ireland executive. DUP leader Jeffrey Donaldson cannot appear conciliatory at all for fear of the TUV outflanking him and stealing support from hardline unionists. If the talks have the slightest risk of meeting all seven of the DUP’s tests, Donaldson will have to find an eighth.
Unionists concerned about lack of democratic accountability
A Unionist who is active on Twitter is worried that talk of Northern Ireland not being democratically represented in Brussels will be met by suggestions that the role could be undertaken by Dublin, in what he calls “proxy representation”:
He makes a good point and you have to sympathise with him and the Unionists.
You also have to feel some sympathy for Sunak. Johnson suggested the Irish border solution, got the EU to accept it, denied it was a border before signing up to it, forced the bill through parliament, and won an election on the strength of it. The men who helped him – Redwood, IDS, Cash, et al, and the DUP – are now threatening Sunak unless he gets rid of it!
If Sunak himself and the DUP hadn’t supported Brexit one might feel even more sympathy.
Note that in recent times, observers in Northern Ireland are recalling the words of Sir Edward Carson, a prominent unionist politician known by some as the architect of division in Ireland, speaking in the House of Lords on 14 December 1921:
“What a fool I was. I was only a puppet, and so was Ulster, and so was Ireland, in the political game that was to get the Conservative Party into power.”
Sir Jeffrey Donaldson will no doubt be well aware of Carson’s words.