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05 Mar 2021

Union

Some Brexiteers once described themselves as willing to accept Theresa May’s deal on the basis that it would give the UK the ‘freedom to achieve freedom’. It is always an arresting moment to hear Conservative politicians knowingly quote Ireland’s revolutionary leader Michael Collins.

And it certainly played into Fintan O’Toole’s famous account of Brexit being dressed up as an anti-colonial independence movement.

The European Research Group (ERG) never regarded their support for Boris Johnson’s subsequent deal as betraying their Democratic Unionist Party (DUP) allies.

They saw it as achieving a clean break for Great Britain from large parts of EU law, with the Northern Ireland Protocol being unfinished business.

Now we’re in the ‘achieving freedom’ phase of Brexit. And just as dominion status, treaty ports and repayments for land purchase schemes all ceased to be part of Ireland’s relationship with the UK in the years since 1921, the analogy goes, so too will the Ireland/Northern Ireland Protocol be expunged.

The narrative is of course, simplistic. Ireland, after all, remains partitioned. But UK Government ministers undoubtedly see an opportunity to minimise the Protocol’s effects on trade within the UK.

The process started when the Protocol was not yet in effect. The rupture over the EU office in Belfast. The showdown over the Internal Market Bill.

The UK had left the EU and Johnson’s Government was making the most of no longer being a good member of the club. It regarded threats to revoke elements of the deal it now regarded as unpalatable as the best way to get the terms of the deal rewritten.

Even if some, and likely most, of the resultant adjustments would have happened anyway, through the normal workings of the Joint Committee, the UK Government is able to convince its supporters that it is acting tough with the EU and that this approach yields results.

But it also generates its own momentum that is hard to escape. We enter a seemingly endless cycle of Brexit confrontations.

The entry into force of the Protocol was always going to produce dislocations, but for many retailers and hauliers the first weeks of 2021 have been miserable.

Businesses knew the terms by which the Protocol would operate and the limited agreed grace periods with only a matter of days to spare.

For large businesses, this is a matter of adapting supply chains and getting accustomed to new processes for trading from Great Britain into Northern Ireland. Many smaller businesses have concluded that, in the midst of the pandemic, the trade is not worth the adjustment in the short term.

We have thus rolled into a new series of standoffs. For the ERG and the DUP, the predictable (and predicted) issues with trade have provided a pretext for arguing the UK Government should trigger Article 16 the Protocol to put in place emergency adjustments or even withdraw from it altogether.

Even though the UK Government initially seemed happier to manage these issues through Joint Committee processes, it seized upon the EU’s moves towards using Article 16 to establish export controls on the notional movement of Covid-19 vaccines from the EU into Northern Ireland.

Michael Gove, perhaps the politician most associated with the ‘freedom to achieve freedom’ approach to Brexit, approached the EU Commission with a shopping list of adjustments he would like to see made to the Protocol’s operation.

The Commission was outraged that its mistake was being instrumentalised in this way, but that outrage is in itself a mark of the EU not having adapted to the realities of bordering a major competitor.

The UK Government was always going to instrumentalise such mistakes. Last week it nonetheless appeared that some deal could be worked out within the Withdrawal Agreement’s Committee system. Perhaps, thereafter, the debate around the Protocol would stabilise.

Until Wednesday 3 March , when – amid the media coverage of the budget – the UK Government announced that it was going to unilaterally extend the grace periods applicable to the Protocol agreed in December 2020.

In the ‘achieving freedom’ calculus, the UK Government is now in control of the circumstances on the ground (in this case its own internal market).

It has the Withdrawal Agreement and the Trade and Cooperation Agreement provisionally in place, and it presumes (not unreasonably) that the EU has more important concerns than the operation of the Ireland/Northern Ireland Protocol on its plate.

As a result, it sees limited risks in pursuing a strategy of whittling down the Protocol. The assumption will have been that the EU would either accept these adjustments or respond with token gestures, which the UK Government will present to its supporters as churlish.

It has sought to present itself as having Northern Ireland’s business interests at heart and would in course brush off Commission enforcement proceedings under the Protocol (which would take years to reach a conclusion).

The EU Parliament’s decision to up the ante and delay the ratification of the Trade and Cooperation Agreement will likely have come as a surprise.

With regard to vaccine roll out, Ursula von der Leyen recently described the EU as an oil tanker compared to the UK’s speed boat.

In threatening the Trade and Cooperation Agreement, the EU will be seeking to avoid the same analogy being applied to post-Brexit international relations between the EU and the UK.

This response is the EU seeking to avoid being outmanoeuvred and that it won’t play this game anymore. The move, however, will inevitably be presented by Brexit’s backers as bullying behaviour in days to come. UK policy makers, moreover, are not going to treat the threat to the Trade and Cooperation Agreement as being credible.

The Agreement will ultimately be ratified, a point of leverage for the EU will have passed, and the UK Government will look for the next opportunity to diminish the implications of the Protocol for trade within the UK internal market.

Crises, crises, came and went, each one offered its fulfilment (to draw on Seamus Heaney).

By Colin Murray, Reader in Public Law at Newcastle Law School.

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