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04 Aug 2021

Union

On 21 July 2021, the UK government published a Command Paper outlining its new approach to the Northern Ireland Protocol.

This short document presents the UK’s perspective on the process of agreeing the Protocol, gives an assessment of how it considers the Protocol to be working, assesses invoking Article 16 as a course of action, and undertakes to outline a number of ways the Protocol’s operation could be radically revised (and in the UK government’s view, improved).

If it sounds an ambitious aim to seek a reconfiguration of the Protocol on the basis of a unilateral assessment of its performance to date, it’s because it is.

It is therefore all the more surprising that the substance of the Command Paper is lacking, not least in providing the evidence necessary to persuade the EU into reconsidering the Protocol’s trade elements.

It provides no detailed account of the workings of the Protocol – indeed the scant evidence that it draws upon to illustrate the profound trade disruptions said to be wrought by it are cobbled together from sources such as select committee evidence sessions.

The failure to disaggregate ‘Protocol’ trade disruption and disruption relating to the Covid-19 pandemic leaves these parts of the report lacking in substance and unconvincing (see paras. 21-22).

The way in which the Belfast/Good Friday Agreement is referred to is also notable. It is projected as being at the forefront of the UK government’s thinking and a core underpinning to the approach being proposed in relation to the Protocol.

But the High Court in Belfast recently refused to find that the Protocol breached the terms of the 1998 Agreement following arguments put to it by Unionist politicians.

There is, moreover, an element of instrumentality about the way in which the Northern Ireland peace process has been presented in the Command Paper when considered in the wider context of current UK politics.

The impact of the UK government’s announcement on an amnesty for protagonists in the Northern Ireland conflict is a key reason why, for some, the sight of its ministers wrapping themselves in the need to sustain the peace process with regard to the Protocol is a juxtaposition rather than a source of comfort.

The evidence selected to back up aspects of the argument presented is also questionable.

For instance, while it cites findings from a recent survey that show there to be a split in support for the Protocol in Northern Ireland, it overlooks another finding from the same study that a majority of participants (86%) do not trust the current UK government to manage Northern Ireland’s interests with regard to the Protocol.

To attempt to project an image of speaking with authority on how the wider public in Northern Ireland are feeling about the Protocol is somewhat overplaying the UK government’s hand, while also calling into question the basis of its argument to revisit the Protocol.

This becomes evident in the paper’s consideration of Article 16 – the Protocol’s emergency break if its trade provisions are found to be causing trade disruption or societal damage – which, it is concluded, could be used, but won’t yet be implemented.

The paper claims that the UK government’s preferred route in relation to the Protocol is to engage in dialogue. But as with the Internal Market Bill’s proposed “limited and specific” breach of the Withdrawal Agreement last Autumn, this is dialogue with a threat clearly on the table.

Several motivations are in play.

First, the UK knows on some level that all of its demands and preferences will not be deliverable. There is more to be gained strategically from setting the bar high and being able to achieve something – even if it is delivered through the mechanisms already in place as opposed to arising through a renegotiation process.

Second, in knowing the EU’s position that the Protocol is not up for renegotiation, this document primes the stage for the EU to be cast as the intransigent party, which is a more politically advantageous position to propagate domestically.

Third, and perhaps most crucially, it is in the current UK government’s interest to distract as much as possible from the fact that it was party to negotiating and agreeing the Protocol and its terms.

The Command Paper reads in places (particularly Section 1) as though the UK government had no option but to sign the agreement. There are thus very different EU and UK narratives emerging around the Protocol.

The EU has already initiated legal action against the UK for unilaterally extending Protocol grace periods. This is currently paused, with the EU Commission repeating that the EU will work towards finding solutions to the current issues.

It does not want to fall into the evident trap of being painted as unwilling to find solutions to the issues with the Protocol in its response to the Command Paper, but neither is it willing to renegotiate the Protocol. The two sides are, at best, talking at cross-purposes with little trust in each other.

The Command Paper does not, for all of this, mark an explicit disavowal of the Protocol, but that in itself is hardly positive. The paper presents the Protocol as an arrangement which does not diminish Northern Ireland’s constitutional place within the UK, but simultaneously portrays it as profoundly reshaping trading relationships in a dangerously destabilising manner.

This is very much a having-its-cake-and-eating-it-too account of the Protocol.

This is perhaps unsurprising given Boris Johnson’s track record, and the strategy seems to have won plaudits from the DUP, but the internal market white paper won similar praise and ultimately paved the way to the Protocol’s current operation. It remains to be seen whether this episode will likewise end in dark mutterings of betrayal.

Two things can be true at the same time, but when they have to be reconciled in such a way that it can become possible to move forward with another party to find workable solutions to something as significant as Brexit, this situation can quickly become very messy.

The Protocol was negotiated and agreed by the UK, and the attempts to not just hollow out but completely restructure it are doing little to instill trust in the UK government’s approach – internally, from the EU, or internationally with potential trade partners of the future looking on.

We are thus no clearer about the way forward in light of this document. All it has done is confirm that that the tensions around the Protocol are only likely to resurface in the Autumn and that they will likely run at least until the next Northern Ireland Assembly elections (May 2022 at the latest).

The UK government knows that an Assembly majority after those elections in opposition to the Protocol’s trade terms will spell their death knell.

However unlikely that might seem, the Command Paper strongly implies that the UK government sees little benefit in “normalising” the working of the Protocol, when spinning out these tensions might rid it of an arrangement it never really wanted in the first place.

By Colin Murray, Reader in Public Law at Newcastle University Law School, and researcher Dr Clare Rice.

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