I don’t doubt that UK ministers want a free trade deal and more with the EU. But rather than agree a comprehensive deal on what they regard as the EU terms, they are insisting on defining the terms of resumed British sovereignty first and proposing to bounce their unilateral decisions off the EU case by case as issues arise. The procedure for this is the EU/UK joint committee created by the Withdrawal Agreement which is meeting today. There is also a specialist committee for consulting on the Ireland/NI Protocol. It therefore looks as if any deal would be a basic one, leaving the details to be negotiated through the committees over years. Problem is, getting the EU to agree to this procedure is hardly helped by breaking the terms of the Withdrawal Agreement on which the procedure itself is based.
How does Northern Ireland come into it? As the region will remain essentially within the single market, the EU writ is bound to run. Even here though, the UK government is being allowed to manage the new customs and regulatory rules required, subject to EU approval. There appears to be little problem about scrapping most customs formalities on goods from NI to GB. GB to NI is a different matter as it potentially involves exports into the EU. Here lies the crux of conflict between the two sides. GB to NI, the British are claiming the right to interpret the customs rules of the Protocol but have not suggested a radical review. Indeed by donating £200 million towards setting them up the government are admitting they will not be frictionless. Making these complex arrangements work as smoothly as possible ought to be a focus of unity for the Assembly. The public will be a lot more concerned at the prospects of rising prices in the shops due to hold ups at the ports than over the refined topic of a breach of international law.
A bigger issue for EU is British state aid, the right to subsidise firms anywhere in the UK, potentially giving the UK an unfair advantage over EU firms in their own countries by exporting to the EU through the open door of the Irish border. As the Protocol stands, and in order to deny the UK that unfair advantage in trading with the continent, the EU could refuse to allow the UK government to subsidise a firm anywhere in the UK which trades with Northern Ireland. That can’t be right. So that’s one reason why Johnson has introduced the now notorious Internal Market Bill disapplying this part of the Withdrawal Agreement and so breaking international law.
By unilaterally setting rules for internal trade affecting all four parts of the UK on leaving the EU , the government has incurred the wrath of the devolved governments of Scotland and Wales. Uniform rules might be thought of as a common good. But the Bill allows the UK government to spend money within the devolved government’s competences, violating the Sewell Convention which although not a law, normally requires them to be consulted on matters on which they have a clear interest – like state aid for new or struggling companies. Ignoring Scottish and Welsh sensitivities – as they did over the Brexit referendum of 2016 – looks like laying the groundwork for a more aggressive strategy to promote the UK brand where it is most under threat. Culture is named as one of the targets. Might Westminster vote money to promote the Irish Language in order to win brownie points with nationalists?
It’s almost certainly wrong to suppose that this Bill by itself necessarily demolishes the whole pack of cards of the Withdrawal Agreement and even the Good Friday Agreement. Serious pressure would mount however if either the EU or the UK walk away and we are left with a vacuum which could be filled by a hard border and a collapse in British-Irish relations. Without exaggerating the threat to peace, Boris Johnson can hardly have failed to spot the potential and will surely try to prevent it.The prospect of facing international isolation for breaking international law can also hardly appeal. At the very least, the UK government should suspend the passage or the operation of the Internal Market Bill against progress in the ongoing negotiations with the EU.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London