As we enter the last push for a UK-EU future deal, the UK Government has issued a statement that makes no bones about threatening to breach the contract they concluded together less than a year ago.
This threat relates to clauses in the UK Internal Market Bill and the forthcoming Taxation Bill which will equip the UK Government to take unilateral action on matters that are explicitly meant to be joint UK-EU decisions under the Protocol on Ireland/Northern Ireland.
To add an extra bit of fizz to the heady tonic of international law-breaking, the ways and means resolutions on the Taxation Bill also published today confirm that ‘provision (including provision imposing and regulating new duties of customs) may be made in connection with goods in Northern Ireland and their movement into and out of Northern Ireland’. Not only is the gun on the table, they are gleefully loading it with ammunition.
Ironically, the statement is intended to sound conciliatory. It says that the Government ‘will keep under review’ the content of the Taxation Bill. And that it ‘would be prepared to remove’ one clause and ‘deactivate’ two others in the UK Internal Market bill if the current UK-EU discussions on the Protocol ‘are agreed’.
The rub, of course, is that it takes both sides to ‘agree’ something.
There are good reasons why these decisions were intended to be joint decisions. The Protocol was drawn up in response to a unique and highly complex challenge.
The ‘problem’ being that Northern Ireland is closely integrated with both Britain and Ireland (and thus the EU). The ‘solution’ of the Protocol is to effectively place Northern Ireland both in and between the UK and the EU.
Neither side are happy about what this means in principle for their respective internal markets (hence the difficulty of these discussions). What it means in practice is that the further apart those two markets are, the more uncomfortable Northern Ireland’s position will be.
As a ‘negotiating ploy’, the Government’s actions are bizarrely self-defeating. That such a move might even be contemplated by the co-guarantor of the 1998 Belfast (Good Friday) Agreement is, to put it politely, profoundly unsettling. There are three reasons why this tactic is wrong-headed, if not dangerous.
First, the elements of the Protocol targeted by these clauses are less significant in their potential impact than many others. However, they are perhaps the most simple to explain, and to object to: paperwork on goods from NI to GB, tariffs on goods from GB to NI, ‘reach back’ of state aid provisions into GB.
This suggests that this action is motivated more by tokenism than need.
Protocol matters that are potentially more disruptive have been long and loudly articulated by businesses, for example the extensive requirements for Export Health Certificates, the handling of customs processes for non-freight parcels, or the exemptions needed for NI-registered fishing vessels.
Notably, the closer the future UK-EU relationship, the less problematic many of these issues become. If the UK Government was serious about addressing them, one would think it would double its efforts to get a deal.
This relates to the second point. Far from showing that it is ‘serious’, the UK is showing that it is untrustworthy. As UK officials are working hard to find agreement on detailed implementation of the Protocol, their Government is brazenly eroding the ground on which they stand.
And these continued discussions are important because – let us be clear – the Government is not saying that it will not implement the Protocol, just that it would decide unilaterally on a few matters that it likes the least.
Finally, this is a tactic that causes harm. All it does for Northern Ireland is leave it more exposed. And in the longer term, the more uncertainty there is about the region, the less attractive it is for investment and development.
The very point of the Protocol was in part to take Northern Ireland ‘off the negotiating table’ and allow flexibilities to be found to manage it. This tactic places it right back in the middle, and looking increasingly pathetic.
Aside from the whys and wherefores, the fundamental question is how would the EU make a deal with a deal-breaking Government? The simple answer is that it wouldn’t.
The EU has made it clear that any deal cannot be ratified whilst the UK Government stands equipped to break the Withdrawal Agreement. If this were to happen, all the UK Government would have achieved is the temporary thrill of blaming the other side for walking away.
The UK would be left holding a gimmicky ‘safety net’ for a hyperbolic problem whilst the whole of the country slides into an all too real crisis. And the ‘problem’ of Northern Ireland would only intensify.
By Professor Katy Hayward, senior fellow at UK in a Changing Europe.