How wise is it to play Protocol poker with a weak hand everybody can see?

What do you suppose Boris Johnson is up to with his on the face of it, kamikaze tactics over the Protocol Bill?  By pursuing the most aggressive line he seems determined to court a confrontation with the EU.  Can he be serious, even as a survival strategy?

As Peston points out, where Johnson is on shaky ground is that within the Protocol there is explicit provision to suspend it, where there are ‘societal difficulties… liable to persist’ via its Article 16. If the looming collapse of the Northern Ireland Assembly represents ‘societal difficulties’ – which surely it does – then the less aggressive act by Johnson would be to trigger Article 16.

So why has he chosen to go the macho route of making a British law instead? The reason is Johnson wants to go further than triggering Article 16: he wants to abolish all and any role for the European Court of Justice in adjudicating whether the terms of the Protocol are being honoured. This is all about the religious conviction of his ultra Brexiter wing, the European Research Group, that Brexit should have expelled the European Court of Justice from every inch of the UK. In other words, all those tedious and cancerous battles with the EU over sovereignty that were supposed to be solved by Brexit are still with us.

The most expert UK commentator on the subject Peter Foster of the FT explains how the Bill intends to remove nearly all traces of the Withdrawal Agreement, even to the extent of overruling the Assembly’s right to reject it by simple majority vote in 2024:

Section 15 of this bill makes clear how broad the powers are…This legislation is far broader in scope that the Internal Market Bill 2020 that the government admitted breached international law in a “limited and specific way”…section 15 of this bill makes clear how broad the powers are…/

Section 15 lists nine very broad criteria for using the powers for switching off parts of the Protocol… – “safeguarding economic stability” – and the “safetguarding territorial or constitutional integrity of the United Kingdom”

also “lessening, eliminating or avoiding” the difference in tax duties between Great Britain and Northern Ireland. – “ensuring the effective flow of trade

This gives UK ministers the power to ‘fix’ the protocol on any of these pretexts…for example to end the Irish Sea Border checks; end the State Aid provisions in Art 10, harmonise VAT rates NI to GB…..effectively to gut the Protocol

There is actually nothing, Whitehall insiders say, to stop Ministers over-riding the Consent vote of 2024 that was BIG WIN in the post- Theresa May negotiation.  The government says it has no intention of doing this. It says that Section 15 is a technical “insurance” clause to be used as a tidying-up exercise;  

But if the government has no intention of doing something, then why is it handing itself powers that enables it to do that thing?   

The answer is that the Assembly would be invited to vote only on the unilateral UK solution without the option of voting on the original protocol, essentially a meaningless choice.

Few take seriously Johnson’s  casual claim that the Bill contains a relatively trivial set of adjustments in the grand scheme of things.

For the Bill  to pass and then be implemented it would have to pass a number of  high hurdles,  the first being a convincing vote in a Commons debate as early as this week . With a high number of Tory rebels said to be ready to vote against it his majority could be embarrassingly thin. But  the FT ‘s Stephen Bush believes Johnson’s  tactic here is to  threaten rebels with an early  election if they don’t fall into line.  

Could enough have happened by  October- November , the likely dates for another Stormont election  to persuade the DUP to go back into the Assembly?  Answer: probably not.  But here’s where the political calculations become interesting.  What if the EU were to begin with retaliation in earnest and threaten a trade war which would increase tariffs to a NI  departing the single market?  How would the voters react to a worsening of economic conditions as a prelude to a hard land border and all the political consequences that would entail? Johnson must be calculating that any bluff of that kind would be called, Either  the EU led by Ireland would  back down somewhere along the line; or the DUP would blink first and submit under threat of losing even more votes to right and left  ; or both.

A cannier strategy is suggested by the independent Conservative commentator Paul Goodman, editor of Conservative Home

Let’s start by agreeing that the EU doesn’t feel it owes Boris Johnson any favours –It sees no reason to hand the UK a competitive advantage: hence standoffs over standards and regulation. This would be all very well were the rows about the Protocol a simple matter of disagreements between the Government and the EU.

However, through the mass of detail about trusted traders, VAT and subsidy rules thrusts the mighty ship of the Belfast Agreement.

It is hard to argue with the Government’s view that the Protocol has turned out to be incompatible with the Agreement.

(Not everybody would agree, Paul)

I will concede that this ghostly presence is incompatible with a hard land border if others will concede that it is also incompatible with a hard sea border.

As matters stand, the land border is soft enough for armed republicanism to gain little traction, and the Protocol should allow a sea border enough to keep armed loyalism in the same condition – and unionists in Northern Ireland’s executive.

That would honour the spirit of the Agreement, which translates as: “let’s keep the show on the road”. But the EU is preoccupied with lighting fires beneath the Prime Minister’s feet, and so risks setting the Province ablaze.

No wonder the Government is urgently seeking a solution. It comes in the form of a Bill that would create the conditions for the disapplication of chunks of the Protocol. 

I’m unmoved by lectures about the sanctity of international law from the EU – itself a serial breaker of such law over World Trade Organisation rules, “flouting rulings on GMO crops, hormone beef, and Airbus subsidies, or the green jersey Democrats in Congress.

But three points apply here.  First, Britain must certainly act in its own interest in the last resort, just as the EU itself does. However, second, there may be a reputational penalty to pay for doing so.

And, third, whether there is or not, the worst of all worlds would be to threaten to take action, be pilloried in the meantime for flouting international law …and then be unable to deliver what you want, because your domestic situation is so weak.

He has no guarantee of the DUP being lured back into government. Threats to break international law proved unsustainable last time, given the outcry from the Tory backbenches.  The fate of a Bill that may be in the same ball park is uncertain.

And that’s before one factors in the Lords, the courts and delay before the Government could use the Parliament Act to force the Bill through, assuming that it’s then in a position to do so anyway.

The durable solution to the Protocol is to do what’s been done before: get a deal.  That might mean dangling before the EU again that it wants, such as the defence and security deal it was denied during the Brexit negotiations.  But such a gambit is unlikely to work for this government.

Crudely but simply, the EU thinks that it’s got Johnson where it wants him, which is not all that far from where Theresa May was before her administration collapsed.  Authority terminally battered; leadership under siege.

It is unwilling to offer him any concession that it can save up for a successor.  So it is that the EU’s rapacity and his colleagues’ fervour are being fed by Johnson’s weakness – though I don’t blame him for signing the Protocol, which ought to be workable, as we have seen, with enough EU goodwill.

As I write, the Prime Minister looks more likely to have bought off the European Research Group than the Tory champions of international law.

His gamble seems to be that the progress of this Bill, the compatability of which with that law is contested, will be enough to persuade the DUP to re-enter government in Stormont.  After which, he will dare the EU to make concessions without which the Executive may collapse again – and if they won’t, then trigger the Bill’s provisions.

Churchill said that jaw jaw was better than war war.  His biographer’s ( Johnson’s)  bet is that bluff will work better than either.  I hope he is right, but the odds are not in his favour…

 

 

Donate to keep Slugger lit!

For over 20 years, Slugger has been an independent place for debate and new ideas. We have published over 40,000 posts and over one and a half million comments on the site. Each month we have over 70,000 readers. All this we have accomplished with only volunteers we have never had any paid staff.

Slugger does not receive any funding, and we respect our readers, so we will never run intrusive ads or sponsored posts. Instead, we are reader-supported. Help us keep Slugger independent by becoming a friend of Slugger.

While we run a tight ship and no one gets paid to write, we need money to help us cover our costs.

If you like what we do, we are asking you to consider giving a monthly donation of any amount, or you can give a one-off donation. Any amount is appreciated.