The Way Forward: Boris Johnson having his cake and eating it too?

Earlier this week, the UK Government released its ‘Command Paper’ entitled “Northern Ireland Protocol: The way forward”. One can almost imagine the EU negotiators exhaling an exasperated sigh, rubbing their temples, and remarking: “Really? They’re opening this can of worms again?” as the authors impress upon them (and us) the need for more “urgent talks” to “find a new balance for the Protocol”.

In his opening remarks, Boris Johnson laments that “[t]he impact of the Protocol has been profound economically, politically, socially, and commercially” (No surprise that the originator of “F*ck business” tacked commerce onto the end) – but also that “we cannot solve the problems simply by a rigid and unpurposive application of the Protocol in its current form”.

Brandon Lewis and Lord Frost, following Johnson in their introduction, state that their ‘new approach’ (eerily reminiscent of the ‘old approach’ of the past five years) “must be accompanied by ambition, imagination, genuine flexibility, and compromise” (emphasis added) – seemingly implying that the EU hasn’t been bending over backwards quite far enough for their liking. In this Paper, the UK Government ultimately seeks to push the EU past the limit it has set for how flexible it can be – that is, working creatively and flexibly “within the protocol framework”.

In fairness to Lewis and Frost, they do “recognise that there could be political resistance and frustration at the prospect of revisiting significant aspects of the Protocol” [emphasis added]. In Section One of the document, they proceed to paint a picture of the high regard in which they hold that Protocol (their own creation, remember) – stating that “The Government does not accept – and has never accepted – that the Northern Ireland Protocol was the only means of protecting the [Good Friday] Agreement” [Emphasis added]. It is merely that they have a problem with the one and only means they successfully drew up, passed through Parliament, proposed to the EU, and whose fundamentals they now intend to upend.

Revealingly, the Command Paper identifies increasing “trade between Northern Ireland and Ireland” as a circumstance “to justify using Article 16” – on the grounds that it has “exacerbated the perceptions of separation and threat to identity within the unionist community”. Indeed, throughout the Paper, much consideration is given to the “extent, breadth and unanimity of opposition from those in the unionist tradition” to the Protocol – yet recognition that “[t]here is now a 50/50 split in opinion in Northern Ireland on the Protocol” (which implies that 50% of Northern Ireland, presumably Nationalists in the main) supports it) seemingly counts for little.

Aside from trade concerns and Unionist opposition, two incidents in particular are identified as justifying the UK Government’s desire for renegotiation:

Firstly, “the EU’s action on 29 January in attempting to use Article 16, without warning or consultation, to establish a vaccine frontier at the border between Ireland and Northern Ireland”. Worth noting here that the “EU” did not “attempt” to do so (it was narrowed down almost entirely to Ursula von der Leyen who, if anything, merely talked about invoking it, only to be later slapped down by Simon Coveney). In laying down the grounds on which they themselves could unilaterally Article 16, however, the authors seemingly do not anticipate any similar proposal from the EU to upend fundamentals that they regard as non-negotiable.

Secondly, “[t]he EU’s immediate resort to legal action following the UK’s extension of some of the grace periods in March”. It is clear from this particular grievance that the UK Government still regards being held to account for breaking international law in a “specific and limited way” as seriously vexatious – therefore justifying the Protocol being changed “in a fundamental way.”

Ultimately, however, for all the Command Paper’s talk of compromise and flexibility, there is little evident from the UK Government. Throughout, the authors downplay the need for rigorously implementing Northern Ireland Protocol as agreed – arguing, for instance, that “the risks to the EU would be extremely low…given that trade from Northern Ireland to Ireland is less than 0.5% of all imports into the EU”. This figure, however, only applies only at present. The EU, however, is operating with the future in mind.

Supposing that 0.5% figure rises – a not unlikely development given the sharp rise in All-Ireland trade – this would inevitably pose increasing risks to the Single Market, which the Protocol is designed to counteract. In light of this, it is highly unlikely that the EU will be willing to enter into renewed talks with the UK Government – no matter how ‘urgent’ it declares them. Indeed, it bluntly “WARNED the UK it will not renegotiate the deal on Northern Ireland’s post-Brexit trading arrangements”. We will therefore likely have a spectre haunting Europe once again – the spectre of HMG unilaterally invoking Article 16.

I Will Have My Cake And Eat It Now, Thank You” by The Cleveland Kid is licensed under CC BY