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We Hold All the Cards — Round 2

If the EU is stupid enough to retaliate over the NI Protocol, it will mainly be hurting itself. Britain is in a much stronger position than when we signed the treaty — we should call Brussels’ bluff

This was the headline over an opinion piece in the most recent edition of The Sunday Telegraph by the arch-Brexiteer, Lord Daniel Hannan. I didn’t read the piece itself because it was behind a paywall — and I felt comfortable I could guess what it would say anyway. But the headline contains a dubious claim while also revealing an important truth, the latter applying to contexts far beyond Brexit.

We will get back to Brexit via a detour to Ukraine.

According to The Economist, during his speech at the victory parade in Moscow on 9 May, Vladimir Putin justified Russia’s invasion of Ukraine as a form of pre-emptive self-defence.

“An unacceptable threat to us was steadily being created right on our borders… [the invasion] was forced, timely and the only correct decision.”

Russian spokespersons have offered other justifications for the invasion as well including the need to protect residents in the enclaves of Donetsk and Luhansk from alleged genocide, to cleanse Ukraine of Nazism and because Ukraine is, in some sense, “really” a part of Russia already.

Of course, most people west of the Russian border dismiss this case as absurd. Their prosecution case begins and need go not much further than the simple contention that it is just “not on” to conduct unprovoked invasions of other sovereign states. But, the prosecution throws in for good measure the contentions that the allegations of genocide and the notion that an undefined “Nazism” is endemic in Ukraine are simply fictional. And last, the alleged provocation of Ukraine’s desire to join NATO is wildly overstated. Yes, Ukraine would probably still like to join NATO, but the prospect was not remotely imminent and Ukraine in no great hurry to accelerate it. So, the alleged “provocations” are less than paper thin.

The back and forth about where abstract “right” lies between these two positions does matter. But it is essentially a side-show to the real process of bringing some kind of “resolution” to the Ukraine “crisis”. That resolution will actually be determined by the progress of events “on the ground”. Either, Russia will succeed in capturing and holding more of Ukraine than it held on 23 February or Ukraine will push the Russian army back so that it holds substantially less. That military arm wrestle will determine things, not the verbal exchanges. Muscular leverage is the currency.

And the same applies to the latest Brexit “fallout” relating to the Northern Ireland Protocol which the UK Government is threatening to override unilaterally.

Naturally, both sides claim to have a forceful verbal case.

The UK’s general case for easement of the Protocol runs something like this.

First, they thought the EU would apply the Protocol with a “light touch” as a matter of straightforward, pragmatic “common sense” and because, for now at least, the UK’s regulatory regime on goods remains in line with the EU’s. Second, the Protocol is “hurting” exporters of goods from Britain to Northern Ireland and the would-be importers of the same goods. Witness the empty spaces in supermarket shelves in the immediate aftermath of its implementation in January last year.

Then there are other justifications from the wilder fringes of Brexit “thought” that are not central but deserve articulation for completeness. The UK Government allegedly only agreed to the Protocol under the duress of a parliament that would otherwise have prevented “getting Brexit done” contrary to the democratic will of the people. And, there are “technological” or “legal” options that would be at least as good as the Protocol (but without equivalent downsides) for keeping the Irish border free of checks without risk to the EU single market. In any event, the UK Parliament being sovereign, it would be entirely “legal” for it to override some or all of the Protocol. And the EU is not negotiating seriously, indeed was first to breach the spirit of the Protocol by allegedly invoking Article 16 to control exports of COVID vaccines in 2021.

The UK is now touting a more focused case based on unionist opposition to the Protocol, a case they represent as being strong enough to justify unilateral action as outlined by Liz Truss on Tuesday.

The Protocol is causing political instability, heightening the possibility of the politically motivated violence which it was supposed to prevent. Because the Protocol does not have cross-community consent in Northern Ireland, it threatens the delicate balance of the political scaffolding established by the Good Friday Agreement. Because the latter is the basis for continuing peace and stability in Northern Ireland, the Good Friday Agreement “trumps” the Protocol in the hierarchy of binding commitments.

As with Ukraine, most of us west of Holyhead reject the merits of these arguments. And, as with Ukraine, there is a case that the first rejoinder is sufficient to close the matter.

The UK Government proposed the central concepts of the Protocol to the EU as a solution to an acknowledged problem. Both parties were agreed that there should be no trade related checks at the land border within Ireland, but that checks would have to take place somewhere as a consequence of Brexit. The UK Government agreed the terms of the Protocol. And it commended the oven-ready Brexit deal containing the Protocol to the people in a general election which the Tories won with a “stonking” 80 seat majority. On the back of this majority, they secured parliamentary approval and went on to sign the deal.

They proposed it. They agreed it — all voluntarily. They must own it. That’s the way the world works. Contracts can be amended legitimately only by agreement between the parties.

A majority of voters and elected politicians in Northern Ireland are at least relaxed about the Protocol or actively support it, a position reaffirmed by the recent election results there. There is a democratic underpinning of the Protocol because the Northern Ireland Assembly will vote next year on whether to maintain it, the decision to be taken by simple majority rather than requiring majorities among both the designated Nationalist and Unionist blocs.

The EU might gently point out that the need for the Protocol is rooted in the fact of Brexit and Brexit was inflicted on the UK by its own choice, against the wishes of a majority in Northern Ireland. Moreover, it was also the UK’s free choice to make a complete break, to decline to commit to retaining any regulatory alignment with the EU, thus making the movement of goods between Britain and anywhere in the single market, including Northern Ireland, as difficult as they could be.

Nonetheless, the EU is willing to resume negotiations, not on “scrapping” or amending the Protocol, but on simplifying its application. The EU has already shown good faith in acceding to extended grace periods for imports of certain goods (like chilled meats) and by acting unilaterally to smooth the path for exports of medicines to Northern Ireland. The EU also suspended its legal action against previous unilateral breaches by the UK while those negotiations were happening, as a goodwill gesture.

The UK has not reciprocated those confidence building actions. Indeed, by pouring cold water on the Protocol almost immediately after it came into effect, despite their having devised and freely adopted it, the UK Government encouraged and gave a thin cover of legitimacy to unionists’ stubbornness in relation to it.

Yes, the Protocol imposes restrictions and complications on the movement of goods between Britain and Northern Ireland, both part of the same sovereign territory. But, the UK has entirely failed to promote the countervailing benefit for Northern Ireland that, uniquely within the UK, it can export goods freely both to Britain and the entire European single market.

But unionist opposition to the Protocol is now supposedly based only secondarily on its practical consequences. The DUP position is one of principle, that the very concept of “an Irish Sea border” is unconstitutional — even though the courts have so far rejected that claim. It is unclear, therefore, whether what is supposedly required to restore the Good Friday Agreement institutions is adaptation of the Protocol or its abolition altogether?

As in Ukraine, the side that wins the game rather than the argument is the side that will be right and only time will tell who it is to be. That is the important truth suggested by Lord Hannan’s headline.

It requires no great imagination to guess how the EU will react to any UK action that looks like more than just throwing shapes but amounts to an attempted “bridge burning” repudiation of the Protocol. It is probably too early to say into which of these categories, Ms. Truss’s latest rendition falls.

The EU tone will be mainly of sorrow rather than anger, emollient affirmations of continuing openness to resumed dialogue. There is unlikely to be an immediate “nuclear” suspension of the full Trade and Cooperation Agreement with the UK. Rather, I would expect graduated escalation.

The previous legal case might be taken out of moth balls to meander further but more firmly along its leisurely path.

One can imagine some quiet general tightening of the checks processes on British goods being exported to mainland Europe. The already long queues of trucks crawling through Kent to Dover can be made longer without doing damage to the EU. Because of incompetence dressed up as sensible policy, the UK has so far failed to establish controls at Dover on goods coming in from mainland Europe so will be unable to retaliate easily against that eventuality.

And one can envisage some more stringent restrictions on specific sensitive export categories, perhaps targeted at discomforting Tory held constituencies.

Within the fevered brains of members of the Tory European Research Group, the tussle over the Protocol offers the prospect of a “rematch”. Although to a man and woman, they voted for Boris Johnson’s agreement, it disappointed them in making no concessions to the UK’s status as both a former EU member state and a “very important” country. It became effectively a third country like any other with no privileged access to the “walled garden” of the European market.

The EU golf club committee was firm in insisting that members who don’t pay the full membership fee don’t get to play the course at all, let alone whenever and however they want. And this departing member of the EU golf club submitted to an obligation to pay a large “past dues” financial settlement to the club even though Boris Johnson had previously said this was something for which the EU could “go whistle”.

The UK did not impose its will on the EU at all. If anything, it was the party imposed upon. The Tories’ enduring superiority complex was deflated.

Now, Lord Hannan and others are reasserting the notion that the UK holds more and better cards than the EU and can get its way provided it remains firm, retains its self-confidence and does not blink.

That is the dubious claim in the headline.

In relation to Northern Ireland specifically, this attitude is well captured in a comment by columnist Henry Hill in an article on Tuesday on the website Conservative Home, an important media mouthpiece of Tory “thinking”.

We ended up with the Protocol because Irish and European negotiators consummately outplayed a succession of hapless, culpable, or simply uninterested British counterparts on the Northern Irish question. Nothing about the Government’s swithering over Article 16 since the last election will have convinced them that their opponents have upped their game.

Gary Lineker gave us this relevant reflection:

Football is a simple game: 22 men chase a ball around for 90 minutes and, in the end, the Germans always win.

Germany may not be quite the footballing force it was and, indeed, women play football too. But, in matters of trade, nobody is more practiced in situations like this than the EU Commission. When it comes to a contest between a chimpanzee and an 800lb gorilla, the latter can inflict more pain and endure more retaliation. Time and logistics are on its side as well as scale. And Winston Churchill Johnson’s self-promotion as the single-handed saviour of Ukraine (ye olde superiority complex on display again) won’t change those dynamics.

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Daire O'Criodain

Daire O'Criodain

Former diplomat and aviation finance executive, active now mainly in not-for-profit sector. Living in rural Clare. Weekly posts on Wednesdays.