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The Northern Ireland Protocol contains the means of its own suspension: Article 16. This refers to “safeguard measures” which can unilaterally be taken by either the UK or the EU if “the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.
“Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation,” it continues – which leaves open the question of what that duration and scope might be.
The EU itself will presumably need no reminder of the terms of Article 16 – because it invoked them itself in January to prevent vaccines made in the Union being exported from Northern Ireland to Great Britain.
Is the Protocol leading to “serious economic, societal or environmental difficulties”? We will pass over the last and even the first – let alone the one in the middle.
Opinion polls have confirmed what loyalist marches, and placards demanding “no sea border”, suggested – namely, that support and opposition to the Protocol have divided along political lines.
One cannot introduce to a settlement built on cross-community consent a measure that 47 per cent of those polled believe is appropriate for Northern Ireland…and 47 per cent believe is not appropriate.
The Government thus has grounds to invoke Article 16 that have nothing to do with Boris Johnson signing the Protocol because Theresa May had left him no practicable alternative; or because the Government underestimated the Protocol’s effects.
Nor do Ministers need to imply that the Protocol is incompatible with Part 1 (iii) of the section of the Belfast Agreement, which says that “it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.
Nor to cite the references to “Northern Ireland’s integral place in the United Kingdom’s internal market” in both the Protocol’s preamble and Article 5.
Nor do they have publicly to draw the obvious conclusion from the Protocol’s references to the Agreement – namely that, as Roderick Crawford has written on this site, the first isn’t fully compatible with the second.
Some Conservatives will agree with all these supplementary arguments and others with only some of them. This site confesses to be unimpressed by those based on not appreciating the Protocol’s effects, or it having effectively been signed under duress.
For governments ultimately have a choice in these matters – and the fact of the matter is that Brexiteering Tory backbenchers were ultimately prepared to gamble on a settlement that contained a different regime for Northern Ireland.
Nonetheless, the EU is not obliged by the Protocol to seek the strict and rigid policing of the Irish Sea border – as though the flow of goods east-west to Northern Ireland constitutes an existential threat to the integrity of the internal market.
Furthermore, the fact is that the Protocol not only contains the means of its own suspension but a qualification on its shelf-life: as David Frost reminds us today, it has a consent mechanism in it for four years’ time.
At which point in the course of our argument, we make a confession to our readers. All the above is taken almost word for word from our ToryDiary of July 22 earlier this year.
This is because the most elemental facts of the case are as they are, and juggling them into a different order would make no difference to their applicability.
All that has changed is the context: the EU Commission has since made an offer to adapt the Protocol; the Government is now mulling it over.
As Raoul Ruparel points out, that the EU has “tabled things they rejected for years” puts into context false claims that it has, to date, sought merely to implement what Boris Johnson signed up to.
So what will happen next? Nothing much, we suspect: after all, there is no time limit on what has effectively become a negotiation on the Protocol’s future.
And the Prime Minister is unlikely to invoke Article 16 before COP26 at the end of this month, because he won’t want a row with Joe Biden about doing so to overshadow the summit, which is in enough trouble as it is.
So does he have any serious intention of doing so at all? Or is the EU now offering enough to make a settlement likely? The facts are less promising than the spin.
For both sides have an interest in playing up the scale of the Commission’s concessions: the EU, because it wants to show that it is being constructive; the Government, because it wants to show it is getting results.
There is gap between what the Commission’s press releases proclaim and what its documents actually say: for example, its so-called surrender in the “sausage wars”, briefed as such by the Government, may not have happened at all.
For the EU is requiring ongoing alignment with product regulations, which has basically been its position all along. Nor is it at all obvious that there is a compromise available over the biggest sticking-point of all: the role of the European Court of Justice.
Nonetheless, one may, eventually, be reached: it’s claimed that the EU may ultimately be prepared to limit the role of the court. The difference between its role in the Trade & Co-Operation Agreement and the Withdrawal Agreement may be significant in this context.
In the latter, if any dispute involves questions regarding interpretation of EU law, the arbitration panel must refer the interpretation to the CJEU. The CJEU’s ruling is then binding on the panel.
In the former, that isn’t the case. This divergence reflects the fact that the Withdrawal Agreement is largely the work of the May Government and the trade agreement that of the first Johnson Government.
And while the gap between rhetoric and reality suggests that this second Johnson administration and the EU won’t reach a deal, history says otherwise.
For where Northern Ireland’s concerned, the pattern both for the Withdrawal Agreement and the Belfast Agreement, over 20 years ago, is that negotiating brinksmanship eventually gives way to compromise.
Crucially, Ireland’s Government, which stood in the way of British aspirations when the Withdrawal Agreement was originally negotiated, is in a different place this time round.
Its priority is less the abstraction of maintaining the purity of the EU’s internal market than cooling communal tensions in Northern Ireland during the run-up to next year’s Assembly elections.
For on the nationalist side, any further winding-up of these, let alone a breakdown of public order, would be good for Sinn Fein. Which would have a knock-on on the Irish side of the border.
Which would benefit neither of Ireland’s two traditional parties, Fianna Fail and Fine Gael – who currently make up the country’s governing coalition.
We started where we’ve been before and we end in the same way, too. There are three possible solutions to UK-EU trade Ireland. A harder border on the island itself. That’s out. A hard sea border between the UK and Northern Ireland. That’s out.
Or so the Government should insist. The only solution that remains is for all sides concerned to pretend that there’s a border while in effect maintaining none at all.
That would be a nonsense, of course. But politics is full of nonsense – not least in Northern Ireland where face-savers have so often been agreed to help keep the show on the road. Which in this case is the peace of Northern Ireland. The Withdrawal Agreement gives the EU a role in maintaining it. We’re about to find out whether it can rise to the challenge.