Boris Johnson is reported to be delaying the publication of the Bill to over-ride parts of the protocol until such time as the DUP agree to the election of a Speaker in the Assembly. The DUP is refusing to proceed until they see the contents of the Bill and ensure that it directly over-rides the Protocol and doesn’t merely give the power to Ministers to do so at some stage of their choosing.
No doubt a compromise will be worked out in due course, with the DUP given a preview of the legislation and agreeing the election of a speaker more or less simultaneously with the publication of the Bill. Both Johnson and the DUP will then claim a great success for Britain, for the Good Friday Agreement, and for democracy.
The fact that any Bill explicitly over-riding the UK’s treaty obligations and international law has little chance of ever receiving Royal Assent is neither here nor there. Face will have been saved and time bought. Boris will have kept his ERC hard-liners on board, and Donaldson will claim to be making progress on dis-applying the Protocol. Both live to fight another day.
But will it all have been cost free? How will the EU react? Will it institute some sanctions now, or wait to see if the Bill actually becomes law? More uncertainty will hardly promote more investment in the N. Ireland economy. The EU will also hardly negotiate under duress and threat of illegal action. What is the point of negotiating any agreement if it can simply be over-written by domestic legislation at a later stage?
To a certain extent this lets the EU off the protocol hook. It now no longer has to consider difficult implementation compromises for Larne which might set precedents for Calais and give the UK an unfair advantage over all other third parties trading with the EU – against WTO rules.
But the EU, as a rules based organisation with no army to enforce its rulings, also cannot tolerate its Treaties being wantonly flouted by third parties. What then would prevent any other third party flouting its agreements with the EU?
So at least some token response might be expected. A resumption of legal action against the UK for unilaterally extending grace periods, a refusal to cooperate with the UK in a multitude of other areas, perhaps a renewed drive to reduce the EU’s dependency on London based financial services companies?
The EU can afford to play a long game. The longer the Protocol remains in place and is seen to benefit the N. Ireland economy, the more difficult it will become to argue for its removal. The longer the DUP is seen to frustrate the formation of an Executive, the more middle ground they might concede to the UUP and Alliance. The longer the GFA institutions are seen not to be working, the greater the case for some radical alternative.
And for Boris Johnson, more pain awaits. Even if he survives the loss of critical by-elections, his chances of getting many of the 141 Conservative MPs who voted no-confidence in his leadership to vote for a Bill breaking international law can only diminish. And even if he overcomes that hurdle, the House of Lords can delay it by another year.
So, these latest manoeuvres aren’t really about resolving some customs complexities at all. They are about digging the DUP and Boris Johnson out of holes of their own making, at considerable cost in terms of their relationship with the EU, their global reputation, and perhaps, directly, for the UK economy itself. Costs the UK economy can ill afford with inflation rising and a recession looming.
The EU also has other priorities to focus on – the war in Ukraine, inflation, the energy crisis and global warming. The NI protocol isn’t even on their main agenda. Why interrupt your adversary while they are busy making even more mistakes? (Napoleon). Unfortunately for N. Ireland, this one will run and run.
Frank Schnittger is a former senior executive in a leading multinational in Dublin and London and has a Masters in Peace Studies from Trinity College. He has been a director of a number of charitable and voluntary organisations in the community development, education, holistic addiction treatment and restorative justice sectors. He is editor of the European Tribune and a moderator of the Irish Rugby Fan Forum.